Vol. VI
RACK, punishments. An engine with which to
torture a supposed criminal, in order to extort a confession of his supposed
crime, and the names of his supposed accomplices. Unknown in
the
2. This instrument, known by the nickname of the Duke of Exeter's daughter,
was in use in
BACK RENT, Engl. law. The full extended value of land let by lease, payable by tenant for life or Years. Wood's Inst. 192.
RADOUB, French law. This word designates the repairs made to a ship, and a fresh supply of furniture and victuals, munitions and other provisions required for the voyage. Pard. n. 602.
RAILWAY. A road made with iron rails or other suitable materials.
2. Railways are to be constructed and used as directed by the legislative acts creating them.
3. In general, a railroad company may take lands for the purpose of making a road when authorized by the charter, by paying a just value for the same. 8 S. & M. 649.
4. For most purposes a railroad is a public highway, but it may be the subject of private property, and it has been held that it may be sold as such, unless the sale be forbidden by the legislature; not the franchise, but the land constituting the road. 5 Iredell, 297. In. general, however, the public can only have a right of way for it is not essential that the public should enjoy the land itself, namely, its treasures, minerals, and the like, as these would add nothing to the convenience of the public.
5. Rail-road companies, like all other principals, are liable for the acts of their agents, while in their employ, but they can not be made responsible for accidents which could not be avoided. 2 Iredell, 234; 2 McMullan, 403.
RAIN WATER. The water which naturally falls from the clouds.
2. No one has a right to build his house so as to cause the rain water to fall over his neighbor's land; 1 Rolle's Ab. 107; 2 Leo. 94; 1 Str. 643; Fortesc. 212; Bac. Ab. Action on. the case, F.; 5 Co. 101; 2 Rolle, Ab. 565, 1. 10; 1 Com. Dig. Action upon the case for a nuisance, A; unless he has acquired a right by a grant or prescription.
3. When the land remains in a state of nature, says a learned writer, and by the natural descent, the rain water would descend from the superior estate over the lower, the latter is necessarily subject to receive such water. 1 Lois des Batimens, 15, 16. Vide 2 Roll. 140; Dig. 39, 3; 2 Bouv. Inst. n. 1608.
RANGE. This word is used in the land laws of the United States to designate the order of the location of such lands, and in patents from the United States to individuals they are described as being within a certain range.
RANK. The order or place in which certain officers are placed in the army and navy, in relation to others, is called their rank.
2. It is a maxim, that officers of, an inferior rank are bound to obey all the lawful commands of their superiors, and are justified for such obedience.
RANKING. In Scotland this term is used to signify the order in which the debts of a bankrupt ought to be paid.
RANSOM, contracts, war. An agreement made between the commander of a capturing vessel with the commander of a vanquished vessel, at sea, by which the former permits the latter to depart with his vessel, and gives him a safe conduct, in consideration of a sum of money, which the commander of the vanquished vessel, in his own name, and in the name of the owners of his vessel and cargo, promises to pay at a future time named, to the other.
2. This contract is usually made in writing in duplicate, one of which is kept by the vanquished vessel which is its safe conduct; and the other by the conquering vessel, which is properly called ransom bill.
3. This contract, when made in good faith, and not locally prohibited, is valid, and may be enforeed. Such contracts have never been prohibited in this country. 1 Kent, Com. 105. In England they are generally forbidden. Chit. Law of Nat. 90 91; Poth. Tr. du Dr. de Propr. n. 127. Vide 2 Bro. Civ. Law, 260; Wesk. 435; 7 Com. Dig. 201; Marsh. Ins. 431; 2 Dall. 15; 15 John. 6; 3 Burr. 1734. The money paid for the redemption of such property is also called the ransom.
RAPE, crim. law. The carnal knowledge of a woman by a man forcibly and unlawfully against her will. In order to ascertain precisely the nature of this offence, this definition will be analysed.
2. Much difficulty has arisen in defining the meaning of carnal knowledge, and different opinions have been entertained some judges having supposed that penetration alone is sufficient, while other's deemed emission as an essential ingredient in the crime. Hawk. b. 1, c. 41, s. 3; 12 Co. 37; 1 Hale, P. C. 628; 2 Chit. Cr. L. 810. But in modern times the better opinion seems to be that both penetration and emission are necessary. 1 East, P. C. 439; 2 Leach, 854. It is, however, to be remarked, that very slight evidence may be sufficient to induce a jury to believe there was emission. Addis. R. 143; 2 So. Car. C. R. 351; 1 Beck's Med. Jur. 140. 4 Chit. Bl. Com. 213, note 8. In Scotland, emission is not requisite. Allis. Prin. 209, 210. See Emission; Penetration.
3. By the term man in this definition is meant a male of the human species, of the age of fourteen years and upwards; for an infant, under fourteen years, is supposed by law incapable of committing this offence. 1 Hale, P. C. 631; 8 C. & P. 738. But not only can an infant uncler fourteen years, if of sufficient mischievous discretion, but even a woman may be guilty as principals in the second degree. And the hushand of a woman may be a principal in the second degree of a rape committed upon his wife, as where he held her while his servant committed the rape. 1 Harg St. Tr. 388.
4. The knowledge of the woman's person must be forcibly and against her will; and if her consent has not been voluntarily and freely given, (when she has the power to consent,) the offence will be complete, nor will any subsequent acquiescence on her part do away the guilt of the ravisher. A consent obtained from a woman by actual violence, by duress or threats of murder, or by the administration of stupefying drugs, is not such a consent as will shield the offender, nor turn his crime into adultery or fornication.
5. The matrmonial consent of the wife cannot be retracted, and, therefore, her hushand cannot be guilty of a rape on her as his act is not unlawful. But, as already observed, he may be guilty as principal in the second degree.
6. As a child under ten years of age is incapable in law to give her consent, it follows, that the offence may be committed on such a child whether she consent or not. See Stat. 18 Eliz, c. 7, s. 4. See, as to the possibility of commi tting a rape, and as to the signs which indicate it, 1 Beck's Med. Jur. ch. 12; Merlin, Rep. mot Viol.; 1 Briand, Med. Leg. 1ere partic, c. 1, p. 66; Biessy, Manuel Medico-Legal, &c. p. 149; Parent Duchatellet, De la Prostitution dans la ville de Paris, c. 3, §5 Barr. on the Stat. 123; 9 Car. & P. 752 2 Pick. 380; 12 S. & R. 69; 7 Conn. 54 Const. R. 354; 2 Vir. Cas. 235.
RAPE, division of a country. In the English law, this is a district similar to that of a hundred; but oftentimes containing in it more hundreds than one.
RAPINE, crim. law. This is almost indistinguishable from robbery. (q. v.) It is the felonious taking of another man's personal property, openly and by violence, against his will. The civilians define rapine to be the taking with violence, the movable property of another, with the fraudulent intent to appropriate it to one's own USC. Lec. El. Dr. Rom. §1071.
RAPPORT A SUCCESSION. A French term used in Louisiana, which is somewhat similar in its meaning to our homely term hotch-pot. It is the reunion to the mass of the succession, of the things given by the deceased ancestor to his heir, in order that the whole may be divided among the do-heirs.
2. The obligation to make the rapport has a tripple foundation. 1. It is to be presumed that the deceased intended in making an advancement, to give only a portion of the inheritance. 2. It establishes the equality of adivision, at least, with regard to the children of the same parent, who all have an equal right to the succession. 3. It preserves in families that harmony, which is always disturbed by unjust favors to one who has only an equal right. Dall. Dict. h. t. See Advancement; Collation; Hotchpot.
RASCATL. An opprobrious term, applied to persons of bad character. The law does not presume that a damage has arisen because the defendant has been called a rascal, and therefore no general damages can be recovered for it; if the party has received special damages in consequence of being so called, be can recover a recompense to indennify him for his loss.
RASURE. The scratching or scraping a writing, so as to prevent some part of it from being read. The word writing here is intended to include printing. Vide Addition; Erasure and Interlineation. Also 8 Vin. Ab. 169; 13 Vin. Ab. 37; Bac. Ab. Evidence, F.; 4 Com. Dig. 294; 7 Id. 202.
RATE. A public valuation or assessment of every man's estate; or the ascertaining how much tax every one shall pay. Vide Pow. Mortg. Index, h. t.; Harr. Dig. h. t.; 1 Hopk. C. R. 87.
RATE OF EXCHANGE. Among merchants, by rate of exchange is understood the price at which a bill drawn in one country upon another, may be sold in the former.
RATIFICATION, contracts. An agreement to adopt an act performed by another for us.
2. Ratifications are either empress or implied. The former are made in express and direct terms of assent; the latter are such as the law presumes from the acts of the principal; as, if Peter buy goods for James, and the latter, knowing the fact, receive them and apply them to his own use. By ratifying a contract a man adopts the agency, altogether, as well what is detrimental as that which is for his benefit. 2 Str. R. 859; 1 Atk. 128; 4 T. R. 211; 7 East, R. 164; 16 M. R. 105; 1 Ves. 509 Smith on Mer. L. 60; Story, Ag. §250 9 B. & Cr. 59.
3. As a general rule, the principal has the right to elect whether he will adopt the unauthorized act or not. But having once ratified the act, upon a full knowledge of all the material circumstances, the ratification cannot be revoked or recalled, and the principal becomes bound as if he had originally authorized the act. Story, Ag. §250; Paley, Ag. by Lloyd, 171; 3 Chit. Com. Law, 197.
4. The ratification of a lawful contract has a retrospective effect, ana binds the principal from its date, and not only from the time of the ratification, for the ratification is equivalent to an original authority, according to the maxim, that omnis ratihabitio mandate aeguiparatur. Poth. Ob. n. 75; Ld. Raym. 930; Com. 450; 5 Burr. 2727; 2 H. Bl. 623; 1 B. & P. 316; 13 John.; R. 367; 2 John. Cas. 424; 2 Mass. R. 106.
5. Such ratification will, in general, relieve the agent from all responsibility on the contract, when be would otherwise have been liable. 2 Brod. & Bing. 452. See 16 Mass. R. 461; 8 Wend. R. 494; 10 Wend. R. 399; Story, Ag. §251. Vide Assent, and Ayl. Pand. *386; 18 Vin. Ab. 156; 1 Liv. on, Ag. c. 2, §4, p. 44, 47; Story on Ag. §239; 3 Chit. Com. L. 197; Paley on Ag. by Lloyd, 324; Smith on Mer. L. 47, 60; 2 John. Cas. 424; 13 Mass. R. 178; Id. 391; Id. 379; 6 Pick. R. 198; 1 Bro. Ch. R. 101, note; S. C. Ambl. R. 770; 1 Pet. C. C. R. 72; Bouv. Inst. Index, h. t.
6. An infant is not liable on his contracts; but if, after coming of age, he ratify the contract by an actual or express declaration, he will be bound to perform it, as if it had been made after he attained full age. The ratification must be voluntary, deliberate, and intelligent, and the party must know that without it, he would not be bound. 11 S. & R. 305, 311; 3 Penn. St. R. 428. See 12 Conn. 551, 556; 10 Mass. 137,140; 14 Mass. 457; 4 Wend. 403, 405. But a confirmation or ratification of a contract, may be implied from acts of the infant after he becomes of age; as by enjoying or claiming a benefit under a contract be might have wholly rescinded; 1 Pick. 221, 22 3; and an infant partner will be liable for the contracts of the firm, or at least such as were known to him, if he, after becoming of age, confirm the contract of partnership by transacting business of the firm, receiving profits, and the like. 2 Hill. So. Car. Rep. 479; 1 B. Moore, 289.
RATIFICATION OF TREATIES. The constitution of the United States, art. 2, s. 2, declares that the president shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur. 2. So treaty is therefore of any validity to bind the nation unless it has been ratified by two-thirds of the members present in the senate at the time its expediency or propriety may have been discussed. Vide Treaty.
RATIHABITION, contracts. Confirmation; approbation of a contract; ratification. Vin. Ab. h. t.; Assent. (q. v.)
RATIONALIBUS DIVISIS, WRIT DE. The name of a writ which lies properly when two men have lands in several towns or hamlets, so that the one is seised of the land in one town or hamlet, and the other, of the other town or hamlet by himself; and they do not know the bounds of the town or hamlet, nor of their respective lands. This writ lies by one, against the other, and the object of it is to fix the boundaries. F . N. B. 300.
RAVISHED, pleadings. In indictments for rape, this technical word must be introduced, for no other word, nor any circumlocution, will answer the purpose. The defendant should be charged with having "feloniously ravished" the prosecutrix, or woman mentioned in the indictment. Bac. Ab. Indictment, G l; Com. Dig. Indictment, G 6; Hawk. B. 2, c. 25, s. 56; Cro. C. C. 37; 1 Hale, 628: 2 Hale, 184 Co. Litt. 184, n. p.; 2 Inst. 180; 1 East, P. C. 447. The words "feloniously did ravish and carnally know," imply that the act was done forcibly and against the will of the woman. 12 S. & R. 70. Vide 3 Chit. Cr. Law, 812.
RAVISHMENT, crim. law. This word has several meanings. 1. It is an unlawful taking of a woman, or an heir in ward. 2. It is sometimes used synonymously with rape.
RAVISHMENT OF WARD, Eng. law. The marriage of an infant ward, without the consent of the guardian, is called a ravishment of ward, and punishable by statute. Westminster 2, c. 35.
READING. The act of making known the contents of a writing or of a printed document.
2. In order to enable a party to a contract or a devisor to know what a paper contains it must be read, either by the party himself or by some other person to him. When a person signs or executes a paper, it will be presumed that it has been read to him, but this presumption may be rebutted.
3. In the case of a blind testator, if it can be proved that the will was not read to him, it cannot be sustained. 3 Wash. C C. R. 580. Vide 2 Bouv. Inst. n. 2012.
REAL. A term which is applied to land in its most enlarged signification. Real security, therefore, means the security of mortgages or other incumbrances affecting lands. 2 Atk. 806; S. C. 2 Ves. sen. 547.
2. In the civil law, real has not the same meaning as it has in the common law. There it signifies what relates to a thing, whether it be movable or immovable, lands or goods; thus, a real injury is one which is done to a thing, as a trespass to property, whether it be real or personal in the common law sense. A real statute is one which relates to a thing, in contradistinction to such as relate to a person,
REAL ACTIONS. Those which concern the realty only, being such by which the demandant claims title to have any lands or tenements, rents, or other hereditaments, in fee simple, fee tail, or for term of life. 3 Bl. Com. 117. Vide Actions.
2. In the civil law, by real actions are meant those which arise from a right in a thing, whether it be movable or immovable.
REAL CONTRACT, com. law. By this term are understood contracts in respect to real property. 3 Rawle, 225.
2. In the civil law real contracts are those which require the interposition of thing (rei,) as the subject of them; for instance, the loan for goods to be specifically returned.
3. By that law, contracts are divided into those which are formed by the mere consent of the parties, and therefore are called consensual; such as sale, hiring and mandate, and those in which it is necessary that there should be something more than mere consent, such as the loan of money, deposit or pledge, which, from their nature, require the delivery of the thing; whence they are called real. Poth. Obl. p. 1, c. 1, s. 1, art. 2.
REAL PROPERTY, That which consists of land, and of all rights and profits arising from and annexed to land, of a permanent, immovable nature. In order to make one's interest in land, real estate, it must be an interest not less than for the party's life, because a term of years, even for a thousand years, perpetually renewable, is a mere personal estate. 3 Russ. R. 376. It is usually comprised under the words lands, tenements, and hereditaments. Real property is corporeal, or incorporeal.
2. Corporeal consists wholly of substantial, permanent objects, which may all be comprehended under the general denomination of land. There are some chattels which are so annexed to the inheritance, that they are deemed a part of it, and are called heir looms. (q. v.) Money agreed or directed to be laid out in land is considered as real estate. Newl. on Contr. chap. 3; Fonb. Eq. B. 1, c. 6, §9; 3 Wheat. Rep. 577.
3. Incorporeal property, consists of certain inheritable rights, which are not, strictly speaking, of a corporeal nature, or land, although they are by their own nature or by use, annexed to corporeal inheritances, and are rights issuing out of them, or which concern them. These distinctions agree with the civil law. Just. Inst. 2, 2; Poth. Traite de la Communaute, part 1, c. 2, art. 1. The incorporeal hereditaments which subsist by the laws of the several states are fewer than those recognized by the English law. In the United States, there are fortunately no advowsons, tithes, nor dignities, as inheritances.
4. The most common incorporeal hereditaments, are, 1. Commons. 2. Ways. 3. Offices. 4. Franchises. 5. Rents. For authorities of what is real or personal property, see 8 Com. Dig. 564; 1 Vern. Rep. by Raithby, 4, n.; 2 Kent, Com. 277; 3 Id. 331; 4 Watts' R. 341; Bac. Ab. Executors, H 3; 1 Mass. Dig. 394; 5 Mass. R. 419, and the references under the article Personal property, (q. v.) and Property. (q. v.)
5. The principal distinctions between real and personal property, are the following: 1. Real property is of a permanent and immovable nature, and the owner has an estate therein at least for life. 2. It descends from the ancestor to the heir instead of becoming the property of an executor or admin-istrator on the death of the owner, as in case of personalty. 3. In case of alienation, it must in general be made by deed, 5 B. & C. 221, and in presenti by the common law; whereas leases for years may commence in futuro, and personal chattels may be transferred by parol or delivery. 4. Real estate when devised, is subject to the widow's dower personal estate can be given away by will discharged of any claim of the widow.
6. These are some interests arising out of, or connected with real property, which in some respects partake of the qualities of personally; as, for example, heir looms, title deeds, which, though in themselves movable, yet relating to land descend from ancestor to heir, or from a vendor to a purchaser. 4 Bin . 106.
7. It is a maxim in equity, that things to be done will be considered as done, and vice versa. According to this doctrine money or goods will be considered as real property, and land will be treated as personal property. Money directed by a will to be laid out in land is, in equity, considered as land, and will pass by the words "lands, tenements, and hereditaments whatsoever and wheresoever." 3 Bro. C. C. 99; 1 Tho. Co. Litt. 219, n. T.
REALITY OF LAWS. Those laws which govern property, whether real or personal, or things; the term is used in persona opposition to personality of laws. (q. v.) Story, Confl. of L. 23.
REALM. A kingdom; a country. 1 Taunt. 270; 4 Campb. 289; Rose, R. 387.
REALTY. An abstract of real, as distinguished from personalty. Realty relates to lands and tenements, rents or other hereditaments. Vide Real Property.
REASON. By reason is usually understood that power by which we distinguish truth from falsehood, and right from wrong; and by which we are enabled to combine means for the attainment of particular ends. Encyclopedie, h. t.; Shef. on Lun. Introd. xxvi. Ratio in jure aequitas integra.
2. A man deprived of reason is not criminally responsible for his acts, nor can he enter into any contract.
3. Reason is called the soul of the law; for when the reason ceases, the law itself ceases. Co. Litt. 97, 183; 1 Bl. Com. 70; 7 Toull. n. 566.
4. In Pennsylvania, the judges are required in giving their opinions, to give the reasons upon which they are founded. A similar law exists in France, which Toullier says is one of profound wisdom, because, he says, les arrets ne sont plus comme autre fois des oracles muets qui commandent une obeissance passive; leur autorite irrefragable pour ou contre ceux qui les ont obtenus, devient soumise a la censure de la raison, quand on pretend les eriger en re-gles a suivre en d'autres cas semblables, vol. 6, n. 301; judgments are not as formerly silent oracles which require a passive obedience; their irrefragable authority, for or against those who have obtained them, is submitted to the censure of reason, when it is pretended to set them up as rules to be observed in other similar cases. But see what Duncan J. says in 14 S. & R. 240.
REASONABLE. Conformable or agreeable to reason; just; rational.
2. An award must be reasonable, for if it be of things nugatory in themselves, and offering no advantage to either of the parties, it cannot be enforeed. 3 Bouv. Inst. n. 2096. Vide Award.
REASONABLE ACT. This term signifies such an act as the law requires. When an act is unnecessary, a party will not be required to perform it as a reasonable act. 9 Price's Rep. 43; Yelv. 44; Platt. on Cov. 342, 157.
REASONABLE TIME. The English law, which in this respect, has been adopted by us, frequently requires things to be done within a reasonable time; but what a reasonable time is it does not define: quam long-um debet esse rationabile tempus, non definitur in lege, sed pendet ex discretione justiciariorum. Co. Litt, 50. This indefinite requisition is the source of much litigation. A bill of exchange, for example, must be presented within a reasonable time Chitty, Bills, 197-202. An abandonment must be made within a reasonable time after advice received of the loss. Marsh. Insurance, 589.
2. The commercial code of France fixes a time in both these cases, which varies in proportion to the distance. See Code de Com. L. 1, t. 8, s. 1, §10, art. 160; Id. L. 5, t. 10, s. 3, art. 373. Vide, generally, 6 East, 3; 7 East, 385; 3 B. & P. 599; Bayley on Bills, 239; 7 Taunt. 159, 397; 15 Pick. R. 92,; 3 Watts. R. 339; 10 Wend. R. 304; 13 Wend. R. 549; 1 Hall's R. 56 6 Wend. R. 369; Id. 443; 1 Leigh's N. P. 435; Co. Litt. 56 b.
REASSURANCE. When an insurer is desirous of lessening his liability, he may procure some other insurer to insure him from loss, for the insurance he has made this is called reassurance.
REBATE, mer. law. Discount; the abatement of inferest in consequence of prompt payment. Merch. Dict. h. t.
REBEL. A citizen or subject who unjustly and unlawfully takes up arms against the constituted authorities of the nation, to deprive them of the supreme power, either by resisting their lawful and constitutional orders, in some particular matter, or to impose on them conditions. Vattel, Droit des Gens, liv. 3, §328. In another sense it signifies a refusal to obey a superior, or the commands of a court. Vide Commission of Rebellion.
REBELLION, crim. law. The taking up arms traitorously against the government and in another, and perhaps a more correct sense, rebellion signifies the forcible opposition and resistance to the laws and process lawfully issued.
2. If the rebellion amount to treason, it is punished by the laws of the United States with death. If it be a mere resistance of process, it is generally punished by fine and imprisonment. See Dalloz, Dict. h. t.; Code Penal, 209.
REBELLION, COMMISSION OF. A commission of rebellion is the name of a writ issuing out of chancery to compel the defendant to appear. Vide Commission of Rebellion.
REBOUTER. To repel or bar. The action of the heir by the warranty of his ancestor, is called to rebut or repel. 2 Tho. Co. Litt. 247, 303.
TO REBUT. To contradict; to do away as, every homicide is presumed to be murder, unless the contrary appears from evidence which proves the death; and this presumption it lies on the defendant to rebut by showing that it was justifiable or excusable. Allis. Prin. 48.
REBUTTER, pleadings. The name of the defendant's answer to the plaintiff's surrejoinder. It is governed by the same rules as the rejoinder. (q. v.) 6 Com. Dig. 185.
REBUTTING EVIDENCE. That which is given by a party in the cause to explain, repel, counteract or disprove facts given in evidence on the other side. The term rebutting evidence is more particularly applied to that evidence given by the plaintiff, to explain or repel the evidence given by the defendant.
2. It is a general rule that anything may be given as rebutting evidence which is a direct reply ta that produced on the other side; 2 M'Cord, 161; and the proof of circumstances may be offered to rebut the most positive testi-mony. Pet. C. C. 235. See Circumstances.
3. But there are several rules which exclude all rebutting evidence. A party cannot impeach the validity of a promissory note which he has made or en-dorsed; 3 John. Cas. 185; nor impeach his own witness, though he may disprove, by other witnesses, matters to which he has testified; 3 Litt. 465, nor can be rebut or contradict what a witness has sworn to, which is immaterial to the issue. 16 Pick. 153; 2 Bailey, 118.
4. Parties and privies are estopped from contradicting a written instrument by parol proof, but this rule does not apply to strangers. 10 John. 229. But the parties may prove that before breach the agreement was abandoned, or annulled by a subsequent agreement not in writing. 4 N. Hamp. Rep. 196. And when the writing was made by another, as, where the log-book stated a desertion, the party affected by it may prove that the entry was false or made by mistake. 4 Mason, R. 541.
TO RECALL, international law. To deprive a minister of his functions; to supersede him.
TO RECALL A JUDGMENT. To reverse a judgment on a matter, of fact; the judgment is then said to be recalled or revoked, and when it is reversed for an error of law, it is said simply to be reversed, quod judicium reversetur.
RECAPTURE, war. By this term is understood the recovery from the enemy, by a friendly force, of a prize by him captured. It differs from rescue. (q. v.)
2. It seems incumbent on follow citizens, and it is of course equally the duty of allies, to rescue each other from the enemy when there is a reasonable prospect of success. 3 Rob. Rep. 224.
3. The recaptors are not entitled to the property captured, as if it were a new prize; the owner is entitled to it by the right of postliminium. (q. v.) Dall. Dict. mots Prises maritmies, art. 2, §4.
RECAPTION, remedies. The act of a person who has been deprived of the cus-tody of another to which he is legally entitled, by which he regains the peaceable custody of such person; or of the owner of personal or real property who has been deprived of his possession, by which he retakes possession, peaceably. In each of these cases the law allows the recaption of the person or of the property, provided he can do so without occasioning a breach of the peace, or an injury to a third person who has not been a party to the wrong. 3 Inst. 134; 2 Rolle, Rep. 55, 6; Id. 208; 2 Rolle, Abr. 565; 3 Bl. Comm. 5; 3 Bouv. Inst. n. 2440, et seq.
2. Recaption may be made of a person, of personal property, of real property; each of these will be separately examined.
3. - 1. The right of recaption of a person is confined to a hushand in re-taking his wife; a parent, his child, of whom he has the custody; a master, his apprentice and, according to Blackstone, a master, his servant; but this must be limited to a servant who assents to the recaption; in these cases, the party injured may peaceably enter the house of the wrongdoer, without a demand being first made, the outer door being open, and take and carry away the person wrongfully detained. He may also enter peaceably into the house of a person harboring, who was not concerned in the original abduction. 8 Bing. R. 186; S. C. 21 Engl. C. L. Rep. 265.
4. - 2. The same principles extend to the right of recaption of personal property. In this sort of recaption, too much care cannot be observed to avoid any personal injury or breach of the peace.
5. - 3. In the recaption of real estate the owner may, in the absence of the occupier, break open the outer door of a house and take possession; but if, in regaining his possession, the party be guilty of a forcible entry and breach of the peace, he may be indicted; but the wrongdoer or person who had no right to the possession, cannot sustain any action for such forcible regaining possession merely. 1 Chit. Pr. 646.
RECEIPT, contracts. A receipt is an acknowledgment in writing that the party giving the same has received from the person therein named, the money or other thing therein specified.
2. Although expressed to be in full of all demands, it is only prima facie evidence of what it purports to be and upon satisfactory proof being made that it was obtained by fraud, or given either under a mistake of facts or an ignorance of law, it may be inquired into and corrected in a court of law as well as in equity. 1 Pet. C. C. R. 182; 3 Serg. & Rawle, 355; S. P. 7 Serg. & Rawle, 309; 3 Serg. & Rawle, 564, 589; 12 Serg. & Rawle, 131; 1 Sid. 44; 1 Lev. 43; 1 Saund. 285; 2 Lutw. 1173; Co. Lit. 373; 2 Stark. C. 382; 1 W., C. C. R. 328; 2 Mason's R. 541; 11 Mass. 27; 1 Johns. Cas. 145; 9 John. R. 310; 8 Johns. R. 389; 5 Johns. R. 68; 4 Har. & McH. 219; 3 Har. & McH. 433; 2 Johns. R. 378; 2 Johns. R., 319. A receipt in full, given with a full knowledge of all the circumstances and in the absence of fraud, seems to be conclusive. 1 Esp. C. 172; Benson v. Bennet, 1 Camp. 394, n.
3. A receipt sometimes contains an acknowledgment of having received a thing, and also an agreement to do another. It is only prima facie evidence as far as the receipt goes, but it cannot be contradicted by parol evidence in any part by which the party engages to perform a contract. A bill of lading, for example, partakes of both these characters; it may be contradicted or explained as to the facts stated in the recital, as that the goods were in good order and well conditioned; but, in other respects, it cannot be contradicted in any other manner than a common written contract. 7 Mass. R. 297; 1 Bailey, R. 174; 4 Ohio, R. 334; 3 Hawks, R. 580; 1 Phil. & Am. on Ev. 388; Greenl. Ev. §305. Vide, generally, 1 B . & C. 704 S. C. 8 E. C. L. R. 193; 2 Taunt. R. 141; 2 T. R. 366; 5 B. & A. 607; 7 E. C. L. R. 206; 3 B. & C. 421; 1 East, R. 460.
4. If a man by his receipt acknowledges that he has received money from an agent on account of his principal, and thereby accredits the agent with the principal to that amount, such receipt is, it seems, conclusive as to the payment by the agent. For example, the usual acknowledgment in a policy of insurance of the receipt of premium from the assured, is conclusive of the fact as between the underwriter and the assured; Dalzell v. Mair, 1 Camp. 532; although such receipt would not be so between the underwriter and the broker. And if an agent empowered to contract for sale, sell and convey land, enter into articles of agreement by which it is stipulated that the vendee shall clear, make improvements, pay the purchase money by installments, &c., and on the completion of the covenants to be performed by him, receive from the vendor or his legal representatives, a good and sufficient warranty deed in fee for the premises, the receipt of the agent for Such parts of the purchase-money as may be paid before the execution of the deed, is binding on the principal. 6 Serg. & Rawle, 146. See 11 Johns. R. 70.
5. A receipt on the back of a bill of exchange is prima facie evidence of payment by the acceptor. Peake's C. 25. The giving of a receipt does not exclude parol evidence of payment. 4 Esp. N. P. C. 214.
6. In Pennsylvania it has been holden that a receipt, not under seal, to one of several joint debtors, for his proportion of the debt, discharges the rest. 1 Rawle, 391. But in New York a contrary rule has been adopted. 7 John. 207. See Coxe, 81; 1 Root, 72. See Evidence.
RECEIPTOR. In Massachusetts this name is given to the person who, on a trustee process being issued and goods attached, becomes surety to the sheriff to have them forthcoming on demand, or in time to respond the judgment, when the execution shall be issued. Upon which the goods are bailed to him. Story, Bailm. §124, and see Attachment; Remedies.
RECEPTUS, civil law. The name sometimes given to an arbitrator, because he had been received or chosen to settle the differences between the parties. Dig. 4, 8 Code, 2, 56.
TO RECEIVE. Voluntarily to take from another what is offered.
2. A landlord, for example, could not be said to receive the key from his tenant, when the latter left it at his house without his knowledge, unless by his acts afterwards, he should be presumed to have given his consent.
RECEIVER, chancery practice. A person appointed by a court possessing chan- cery jurisdiction to receive the rents and profits of land, or the profits or produce of other property in dispute.
2. The power of appointing a receiver is a discretionary power exercised by the court. the appointment is provisional, for the more speedy getting in of the estate in dispute, and scouring it for the benefit of such person as may be entitled to it, and does not affect the right. 3 Atk. 564.
3. It is not within the compass of this work to state in what cases a receiver will be appointed; on this subject, see 2 Madd. Ch. 233.
4. The receiver is an officer of the court, and as such, responsible for good faith and reasonable diligence. When the property is lost or injured by any negligence or dishonest execution of the trust, he is liable in damages; but he is not, as of course, responsible because there has been an embezzlement or theft. He is bound to such ordinary diligence, as belongs to a prudent and honest discharge of his duties, and such as is required of all persons who receive compensation for their services. Story, Bailm. §620, 621; and the cases there cited. Vide, generally, 2 Mudd. Ch. 232; Newl. Ch. Pr. 88; 8 Com. Dig. 890; 18 Vin. Ab. 160; 1 Supp. to Ves. jr. 455; 2 Id. 57, 58, 74, 75, 442, 455; Bouv. Inst. Index, h. t.
RECEIVER OF STOLEN GOODS, crim. law. By statutory provision the receiver of stolen goods knowing them to have been stolen may be punished as the principal in perhaps all the United States.
2. To make this offence complete, the goods received must have been stolen, and the receiver must know that fact.
3. It is almost always difficult to prove guilty knowledge; and that must in general be collected from circumstances. If such circumstances are proved which to a person of common understanding and prudence and situated as the prisoner was, must have satisfied him that they were stolen, this is sufficient. For example, the receipt of watches, jewelry, large quantities of money, bundles of clothes of various kinds, or personal property of any sort, to a considerable value, from boys or persons destitute of property, and with-out any lawful means of acquiring them and specially if bought at untimely hours, the mind can arrive at no other conclusion than that they were stolen. This is further confirmed if they have been bought at an undervalue, concealed, the marks defaced, and falsehood resorted to in accounting for the possession of them. Alison's Cr. Law, 330; 2 Russ. Cr. 253; 2 Chit. Cr. Law , 951; Roscoe, Cr. Ev. h. t.; 1 Wheel. C. C. 202.
4. At common law receiving, stolen goods, knowing them to have been stolen, is a misdemeanor. 2 Russ. Cr. 253.
RECESSION. A re-grant: the act of returning the title of a country to a go- vernment which formerly held it, by one which has it at the time; as the recession of Louisiana, which took place by the treaty between France and Spain, of October 1, 1800. See 2 White's Coll. 516.
RECIDIVE, French law. The state of an individual who commits a crime or misdemeanor, after having once been condemned for a crime or misdemeanor; a relapse.
2. Many states provide, that for a second offence, the punishment shall be increased in those cases the indictment should set forth the crime or mis-dmeanor as a second offence.
3. The second offence must have been committed after tho conviction for the first; a defendant could not be convicted of a second offence, as such, until after he had suffered a punishment for the first. Dall. Diet. h. t.
RECIPROCAL CONTRACT, civil law. One in which the parties enter into mutual engagements.
2. They are divided into perfect and imperfect. When they are perfectly reciprocal, the obligation of each of the parties is equally a principal part of the contract, such as sale, partnership, &c. Contracts imperfectly reciprocal are those in which the obligation of one of the parties only is a principal obligation of the contract; as, mandate, deposit, loan for use, and the like. In all reciprocal contracts the consent of the parties must be ex- pressed. Poth. Obl. n. 9; Civil Code of Louis. art. 1758, 1759.
RECIPROCITY. Mutuality; state, quality or character of that which is reciprocal.
2. The states of the Union are bound to many acts of reciprocity. The constitution requires that they shall deliver to each other fugitives from justice; that the records of one state, properly authenticated, shall have full credit in the other states; that the citizens of one state shall be citizens of any state into which they may remove. In some of the states, as in Pennsylvania, the rule with regard to the effect of a discharge under the insolvent laws of another state, are reciprocated; the discharges of those courts which respect the discharges of the courts of Pennsylvania, are respected in that state.
RECITAL, contracts, pleading. The repetition of some former writing, or the statement of something which has been done. Touchst. 76.
2. Recitals are used to explain those matters of fact which are necessary to make the transaction intelligible. 2 Bl. Com. 298. It is said that when a deed of defeasance recites the deed which it is meant to defeat, it must recite it truly. Cruise, Dig. tit. 32, c 7, s. 28. In other cases it need not be so particular. 3 Penna. Rep. 324; 3 Chan. Cas. 101; Co. Litt. 352 b; Com. Dig. Fait, E 1.
3. A party who executes a deed reciting a particular fact is estopped from denying such fact; as, when it was recited in the condition of a bond that the obligor had received divers sums of money for the obligee which he had not brought to account, and acknowledged that a balance was due to the obligee, it was holden that the obligor was estopped to say that he had not received any money for the use of the obligee. Willes, 9, 25; Rolle's Ab. 872, 3.
4. In pleading, when public statutes are recited, a small variance will not be fatal, where by the recital the party is not "tied up to the statute;" that is, if the conclusion be contra formam statuti praediti. Sav. 42; 1 Chit. Crim. Law, 276 Esp. on Penal Stat. 106. Private statutes must be recited in pleading, and proved by an exemplified copy, unless the opposite party, by his pleading admit them.
5. By the plea of nul tiel record, the party relying on a private statute is put to prove it as recited, and a variance will be fatal. See 4 Co. 76; March, Rep. 117, pl. 193; 3 Harr. & McHen. 388. Vide. generally, 12 Vin. Ab. 129; 13 Vin. Ab. 417; 18 Vin. Ab. 162; 8 Com. Dig. 584; Com. Dig. Testemoigne-Evid. B 5; 4 Binn. R. 231; 1 Dall. R. 67; 3 Binn. R. 175; 3 Yeates, R. 287; 4 Yeates, R. 362, 577; 9 Cowen, R. 86; 4 Mason, R. 268; Yelv. R. 127 a, note 1; Cruise, Dig. tit. 32, c. 20, s. 23; 5 Johns. Ch. Rep. 23; 7 Halst. R. 22; 2 Bailey's R. 101; 6 Harr. & Johns. 336; 9 Cowen's R. 271; 1 Dana's R. 327; 15 Pick. R. 68; 5 N. H. Rep. 467; 12 Pick. R, 157; Toullier in his Droit Civil Francais, liv. 3, t. 3, c. 6, n. 157 et seq. has examined this subject with his usual ability. 2 Hill. Ab. c. 29, s. 30; 2 Bail. R. 430; 2 B. & A. 625; 2 Y. & J. 407; 5 Harr. & John. 164; Cov. on Conv. Ev. 298, 315; Hurl. on Bonds, 33; 6 Watts & Serg. 469.
6. Formerly, in equity, the decree contained recitals of the pleadings in the cause, which became a great grievance. Some of the English chancellors endeavored to restrain this prolixity. By the rules of practice for the courts in equity of the United States it is provided, that in drawing up decrees and orders, neither the bill, nor the answer, nor other pleading nor any part thereof, nor the report of any master, nor any other prior proceedings, shall be stated or recited in the decree or order. Rule 86; 4 Bouv. Inst. n. 4443.
RECLAIM. To demand again, to insist upon a right; as, when a defendant for a consideration received from the plaintiff, has covenanted to do an act, and fails to do it, the plaintiff may bring covenant for the breach, or assumpsit to reclaim the consideration. 1 Caines, 47.
RECOGNITION, contracts. An acknowledgment that something which has been done by one man in the name of another, was done by authority of the latter.
2. A recognition by the principal of the agency of another in the particular instance, or in similar instances, is evidence of the authority of the agent, so that the recognition may be either express or implied. As an instance of an implied recognition may be mentioned the case of one who subscribes policies in the name of another and, upon a loss happening, the latter pays the amount. 1 Camp. R. 43, n. a; 1 Esp. Cas. 61; 4 Camp. R. 88.
RECOGNITORS, Eng. law. The name by which the jurors impanneled on an assize are known. Barnet v. Ihrie, 17 S. & R. 174.
RECOGNIZANCE, contracts. An obligation of record entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law, which is therein specified. 2 Bl. Com. 341; Bro. Ab. h. t.; Dick. Just. h. t.; 1 Chit. Cr. Law, 90.
2. Recognizances relate either to criminal or civil matters. 1. Recognizances in criminal cases, are either that the party shall appear before the proper court to answer to such charges as are or shall be made against him, that he shall keep the peace or be of good behaviour. Witnesses are also required to be bound in a recognizance to testify.
3. - 2. In civil cases, recognizances are entered into by bail, conditioned that they will pay the debt, interest and costs recovered by the plaintiff under certain contingencies. There are also cases where recognizances are entered into under the authority and requirements of statutes.
4. As to the form. The party need not sign it; the court, judge or magis-trate having authority to take the same, makes a short memorandum on the record, which is sufficient. 2 Binn. R. 481; 1 Chit. Cr. Law, 90; 2 Wash. C. C. R. 422; 9 Mass. 520; 1 Dana, 523; 1 Tyler, 291; 4 Verm. 488; 1 Stew. & Port. 465; 7 Vern. 529; 2 A. R. Marsh. 131; 5 S. & R. 147; Vide generally, Com. Dig. Forcible Entry, D 27; Id. Obligation, K; Whart. Dig. h. t. Vin. Ab. h. t.; Rolle's Ab. h. t.; 2 Wash. C. C. Rep. 422; Id. 29; 2 Yeates, R. 437; 1 Binn. R. 98 , note 1 Serg. & Rawle, 328 3 Yeates, R. 93; Burn. Just. h. t. Vin. Ab. h. t.; 2 Sell. Pract. 45.
RECOGNIZEE. He for whose use a recognizance has been taken.
RECOGNISOR, contracts. He who enters into a recognizance.
RECOLEMENT, French law. The reading and reexamination by a witness of a de-position, and his persistance in the saine, or his making such alteration, as his better recollection may enable him to do, after having read his deposition. Without such reexamination the deposition is void. Poth. Proced. Cr. s. 4, art. 4.
RECOMMENDATION. The giving to a person a favorable character of another.
2. When the party giving the character has acted in good faith, he is not responsible for the injury which a third person, to whom such recommendation was given, may have, sustained in consequence of it, although he was mistaken.
3. But when the recommendation is knowingly untrue, and an injury is sustained, the party recommending is civilly responsible for damages; 3 T. R. 51; 7 Cranch, 69; 14 Wend. 126; 7 Wend. 1; 6 Penn. St. R. 310 whether it was done merely for the purpose of benefitting the party recommended, or the party who gives the recommendation.
4. And in case the party recomended was a debtor to the one recommending, and it was agreed prior to the transaction, that the former should, out of the property to be obtained by the recommendation, be paid; or in case of any other species of collusion, to cheat the person to whom the credit is given, they may both be criminally prosecuted for the conspiracy. Vide Character, and Fell on Guar. ch. 8; 6 Johns. R. 181; 1 Davis Ca. Er. 22; 13 Johns. R. 224; 5 N. S. 443.
RECOMPENSATION, Scolch law. When a party sues for a debt, and the defendant pleads compensation, or set-off, the plaintiff may allege a compensation on his part, and this is called a recompensation. Bell's Dict. h. t.
RECOMPENSE. A reward for services; remuneration for goods or other property.
2. In maritime law there is a distinction between recompense and restitution. (q. v.) When goods have been lost by jettison, if at any subsequent period of the voyage the remainder of the cargo be lost, the owner of the goods lost by jettison cannot claim restitution from the owners of the other goods; but in the case of expenses incurred with a view to the general benefit, it is clear that they ought to be made good to the party, whether he be an agent employed by the master in a foreign port or the ship owner himself.
RECOMPENSE OP RECOVERY IN VALUE. This phrase, is applied to the matter recovered in a common recovery, after the vouchee has disappeared, and judgment is given for the demandant. 2 Bouv. Inst. n. 2093.
RECONCILIATION, contracts. The act of bringing persons to agree together, who before, had had some difference.
2. A renewal of cohabitation between hushand and wife is proof of reconcil-iation, and such reconciliation destroys the effect of a deed of separation. 4 Eccl. R. 238.
RECONDUCTION, civ. law. A renewing of a former lease; relocation. (q. v.) Dig. 19, 2, 13, 11; Code Nap. art. 1737-1740.
RECONVENTION, civ. law. An action brought by a party who is defendant against the plaintiff before the same judge. Reconventio est petitio qua reus vicissim, quid ab actore petit, ex eadem, vel diversa causa. Voet, in tit. de Judiciis, n. 78; 4 N. S. 439. To entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main action, be nevertheless necessarily connected with it and incidental to the same. Code of Pr. Lo. art. 375; 11 Lo. R. 309; 7 N. S. 282; 8 N. S. 516.
2. The reconvention of the civil law was a species of cross-bill. Story, Eq. Pl. §402. See Conventio; Bill in chancery. Vide Demand in reconvention.
RECORD, evidence. A written memorial made by a public officer authorized by law to perform that function, and intended to serve as evidence of something written, said, or done. 6 Call, 78; 1 Dana, 595.
2. Records may be divided into those which relate to the proceedings of congress and the state legislatures - the courts of common law - the courts of chancery - and those which are made so by statutory provisions.
3. - 1. Legislative acts. The acts of congress and of the several legislatures are the highest kind of records. The printed journals of congress have been so considered. 1 Whart. Dig. tit. Evidence, pl. 112 and see Dougl. 593; Cowp. 17.
4. - 2. The proceedings of the courts of common law are records. But every minute made by a clerk of a court for his own future guidance in making up his record, is not a record. 4 Wash. C. C. Rep. 698.
5. - 3. Proceedings in courts of chancery are said not to be, strictly speaking, records; but they are so considered. Gresley on Ev. 101.
6. - 4. The legislatures of the several states have made the enrollment of certain deeds and other documents necessary in order to perpetuate the memory of the facts they contain, and declared that the copies thus made should have the effect of records.
7. By the constitution of the United States, art. 4. s. 1, it is declared that "full faith and credit shll be given, in each state, to the public acts, records and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." In pursuance of this power, congress have passed several acts directing the manner of authenticating public records, which will be found under the article Authentication.
8. Numerous decisions have been made under these acts, some of which are here referred to. 7 Cranch, 471; 3 Wheat. 234; 4 Cowen, 292; 1 N. H. Rep. 242; 1 Ohio Reports, 264; 2 Verm. R. 263; 5 John. R. 37; 4 Conn. R. 380; 9 Mass 462; 10 Serg. & Rawle, 240; 1 Hall's N. York Rep. 155; 4 Dall. 412; 5 Serg. & Rawle, 523; 1 Pet. S. C. Rep. 352. Vide, generally, 18 Vin. Ab. 17; 1 Phil. Ev. 288; Bac. Ab. Amendment, &c., H; 1 Kent, Com. 260; Archb. Civ. Pl. 395; Gresley on Ev. 99; Stark. Ev. Index, h. t.; Dane's Ab. Index, h. t.; Co. Litt. 260; 10 Pick. R. 72; Bouv. Inst. Index, h. t.
TO RECORD, the act of making a record.
2. Sometimes questions arise as to when the act of recording is complete, as in the following case. A deed of real estate was acknowledged before the register of deeds and handed to him to be recorded, and at the same instant a creditor of the grantor attached the real estate; in this case it was held the act of recording was incomplete without a certificate of the acknowledgment, and wanting that, the attaching creditor had the preference. 10 Pick. Rep. 72.
3. The fact of an instrument being recorded is held to operate as a constructive notice upon all subsequent purchasers of any estate, legal or equitable, in the same property. 1 John. Ch. R. 394.
4. But all conveyances and deeds which may be de facto recorded, are not to be considered as giving notice; in order to have this effect the instruments must be such as are authorized to be recorded, and the registry must have been made in compliance with the law, otherwise the registry is to be treated as a mere nullity, and it will not affect a subsequent purchaser or encumbrancer unless he has such actual notice as would amount to a fraud. 2 Sell. & Lef. 68; 1 Sch. & Lef. 157; 4 Wheat. R. 466; 1 Binn. R. 40; 1 John. Ch. R. 300; 1 Story, Eq. Jur. §403, 404; 5 Greenl. 272.
RECORD OF NISI PRIUS, Eng. law. A transcript from the issue roll; it contains a copy of the pleadings and issue. Steph. Pl. 105.
RECORDARI FACIAS LOQUELAM, English practice. A writ commanding the sheriff, that he cause the plaint to be recorded which is in his county, without writ, between the parties there named, of the cattle, goods, and chattels of the complainant taken and unjustly distrained as it is said, and that he have the said record before the court on a day therein named, and that he prefix the same day to the parties, that then they may be there ready to proceed in the same plaint, 2 Sell. Pr. 166. See Refalo.
RECORDATUR. An order or allowance that the verdict returned on the nisi prius roll, be recorded. Bac. Ab. Arbitr. &c., D.
RECORDER. 1. A judicial officer of some cities, possessing generally the powers and authority of a judge. 3 Yeates' R. 300; 4 Dall. Rep. 299; but see 1 Rep. Const. Ct. 45. Anciently, recorder signified to recite or testify on re-collection as occasion might require what had previously passed in court, and this was the duty of the judges, thence called recordeurs. Steph. Plead. note 11. 2. An officer appointed to make record or onrolment of deeds and other legal instruments, authorized by law to be recorded.
TO RECOUPE. This word is derived from the French recouper, to cut again. In law it signifies the right and the act of making a set-off, defalcation, or discount, by the defendant, to the claim of the plaintiff. 21 Wend. It. 342. In another sense it signifies to recompense. 19 Ves. 123.
RECOVERER. The demandant in a common recovery, after judgment has been given in his favor, assumes the name of recoverer.
RECOVERY. A recovery, in its most extensive sense, is the restoration of a former right, by the solemn judgment of a Court of justice. 3 Murph. 169.
2. A recovery is either true or actual, or it is feigned or common. A true recovery, usually known by the name of recovery simply, is the procuring a former right by the judgment of a court of competent jurisdiction; as, for example, when judgment is given in favor of the plaintiff when he seeks to recover a thing or a right.
3. A common recovery is a judgment obtained in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in such suit. Bac. Tracts, 148.
4. Common recoveries are considered as mere forms of conveyance or common assurances; although a common recovery is a fictitious suit, yet the same mode of proceeding must be pursued, and all the forms strictly adhered to, which are necessary to be observed in an adversary suit. The first thing therefore necessary to be done in suffering a common recovery is, that the person who is to be the demandant, and to whom the lands are to be adjudged, would sue out a writ or praecipe against the tenant of the freehold; whence such tenant is usually called the tenant to the praecipe. In obedience to this writ the tenant appears in court either in person or by his attorney; but, instead of defending the title to the land himself, he calls on some other person, who upon the original purchase is supposed to have warranted the title, and prays that the person may be called in to defend the title which he warranted, or otherwise to give the tenant lands of equal value to those he shall lose by the defect of his warranty. This is called the voucher vocatia, or calling to warranty. The person thus called to warrant, who is usually called the vouchee, appears in court, is impleaded, and enters into the warranty by which means he takes upon himself the defence of the land. The defendant desires leave of the court to imparl, or confer with the vouchee in private, which is granted of course. Soon after the demand and returns into court, but the vouchee disappears or makes default, in consequence of which it is presumed by the court, that he has no title to the lands demanded in the writ, and therefore cannot defend them; whereupon judgment is given for the demandant, now called the recoverer, to recover the lands in question against the tenant, and for the tenant to recover against the vouchee, lands of equal value in recom-pense for those so warranted by him, and now lost by his default. This is called the recompense of recovery in value; but as it is, customary for the crier of the court to act, who is hence called the common vouchee, the tenant can only have a nominal, and not a real recompense, for the land thus recovered against him by the demandant. A writ of habere facias is then sued out, directed to the sheriff of the county in which the lands thus recovered are situated; and, on the execution and return of the writ, the recovery is completed. The recovery here described is with single voucher; but a recovery may, and is frequently suffered with double, treble, or further voucher, as the exigency of the case may require, in which case there are several judgments against the several vouchees.
5. Common recoveries were invented by the ecclesiastics in order to evade the statute of mortmain by which they were prohibited from purchasing or re-ceiving under the pretence of a free gift, any land or tenements whatever. They have been used in some states for the purpose of breaking the entail of estates. Vide, generally, Cruise, Digest, tit. 36; 2 Saund. 42, n. 7; 4 Kent, Com. 487; Pigot on Common Recoveries, passim.
6. All the learning in relation to common recoveries is nearly obsolete, as they are out of use. Rey, a French writer, in hiswork, Des Institutions Judicaire del'Angleterre, tom. ii. p. 221, points out what appears to him the absurdity of a common recovery. As to common recoveries, see 9 S. & R . 330; 3 S. & R. 435; 1 Yeates, 244; 4 Yeates, 413; 1 Whart. 139, 151; 2 Rawle, 168; 2 Halst. 47; 5 Mass. 438; 6 Mass. 328; 8 Mass. 34; 3 Harr. & John. 292; 6 P. S. R. 45,
RECREANT. A Coward; a poltroon. 3 Bl. Com. 340.
RECRIMINATION, crim. law. An accusation made by a person accused against his accuser, either of having committed the same offence, or another.
2. In general recrimination does not excuse the person accused, nor diminish his punishment, because the guilt of another can never excuse him. But in applications for divorce on the ground of adultery, if the party defendant, can prove that the plaintiff or complainant has been guilty of the same offence, the divorce will not be granted. 1 Hagg. C. Rep. 144; S. C. 4 Eccl. Rep. 360. The laws of Pennsylvania contain a provision to the same effect. Vide 1 Hagg. Eccl. R. 790; 3 Hagg. Eccl. R. 77; 1 Hagg. Cons. R . 147; 2 Hagg. Cons. R. 297; Shelf. on Mar. and Div. 440; Dig. 24, 3, 39; Dig. 48, 5, 13, 5; 1 Addams, R. 411; Compensation; Condonation; Divorce,
RECRUIT. A newly made soldier.
RECTO. Right. (q.v.) Brevederecto, writ of right. (q. v.)
RECTOR, Eccl. law. One who rules or governs a name given to certain officers of the Roman church. Dict. Canonique, h. v.
RECTORY, Engl. law. Corporeal real property, consisting of a church, glebe lands and tithes. 1 Chit. Pr. 163.
RECTUS IN CURIA. Right in court. One who stands at the bar, and no one objects any offence, or prefers any charge against him.
2. When a person outlawed has reversed his outlawry, so that he can have the benefit of the law, he is said to be rectus in curia. Jacob, L. D. h. t.
RECUPERATORES, Roman civil law. A species of judges originally established, it is supposed, to decide controversies between Roman citizens and strangers, concerning the right to the possession of property requiring speedy remedy; but gradually extended to questions which might be brought before ordinary judges. After this enlargement of their powers, the difference between them and judges, it is supposed, was simply this: If the praetor named three judges he called them recuperatores; if one, he called him judex. But opinions on this subject are very various. (Colman De Romano judicio recuperatorio,) Cicero's oration pro Coecin, 1, 3, was addressed to Recuperators.
RECUSANTS, or POPISH RECUSANTS, Engl. law. Persons who refuse to make the declarations against popery, and such as promote, encourage, or profess the popish religion.
2. These are by law liable to restraints, forfeitures and inconveniences, which are imposed upon them by various acts of parliament. Happily in this country no religious sect has the ascendency, and all persons are free to profess what religion they conscientiously believe to be the right one.
RECUSATION, civ. law. A plea or exception by which the defendant requires that the judge having jurisdiction of the cause, should abstain from deciding upon the ground of interest, or for a legal objection to his prejudice.
2. A recusation is not a plea to the jurisdiction of the court, but simply to the person of the judge. It may, however, extend to all the judges, as when the party has a suit against the whole court. Poth. Proced. Civ. 1ere part., ch. 2, s. 5. It is a personal challenge of the judge for cause.
3. It is a maxim of every good system of law, that a man shall not be judge in his own cause. 2 L. R. 390; 6 L. R. 134 Ayl. Parerg. 451; Dict. de Jur. h. t.; Merl. Repert. h. t.; vide Jacob's Intr. to the Com. Civ. and Can. L. 11; 8 Co. 118 Dyer, 65. Dall. Diet. h. t.
4. By recusation is also understood the challenge of jurors. Code of Practice of Louis. art. 499, 500. Recusation is also an act, of what nature soever it may be, by which a strange heir, by deeds or words, declares he will not be heir. Dig. 29, 2, 95. See, generally, 1 Hopk. Ch. R. 1; 5 Mart. Lo. R. 292; and Challenge.
REDDENDO SINGULA SINGULIS, construction. By rendering each his own; for example, when two descriptions of property are given together in one mass, both the next of kin and the heir cannot take, unless in cases where a construction can be made reddendo singula singulis, that the next of kin shall take the personal estate aud the heir at law the real estate. 14 Ves. 490. Vide 11 East,, 513, n.; Bac. Ab. Conditions, L.
REDDENDUM, contracts. A word used substantively, and is that clause in a deed by which the grantor reserves something new to himself out of that which he granted before, and thus usually follows the tenendum, and is generally in these words "yielding and paying."
2. In every good reddendum or reservation, these things must concur; namely, 1. It must be apt words. 2, It must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself, nor of something issuing out of another thing. 3. It must be of such thing on which the grantor may resort to distrain 4. It must be made to one of the grantors and not to a stranger to the deed. Vid 2 Bl. Com. 299; Co. Litt. 47; Touchs 80; Cruise, Dig. tit. 32, c. 24, s. 1; Dane' Ab. Index, h. t.
REDEMPTION, contracts. The act of taking back by the seller from the buyer a thing which had been sold subject to th right of repurchase.
2. The right of redemption then is an agreement by which the seller reserves to himself the power of taking back the thing sold by returning the price paid for it. As to the fund out of which a mortgaged estate is to be redeemed, see Payment. Vide Equity of redemption.
REDEMPTIONES. Heavy fines, contradistinguished from misericordia. (q. v.)
REDHIBITION, civil law, and in Louisiana. The avoidance of a sale on account of some vice or defect in the thing sold, which renders it absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. Civ. Code of Lo. 2496. Redhibition is also the name of an action which the purchaser of a defective movable thing may bring to cause the sale to be annulled, and to recover the price he has paid for it. Vide Dig. 21, 1.
2. The rule of caveat emptor, (q. v.) in the common law, places a purchaser in a different position from his situation under the like circumstances under the civil law; unless there is an express warranty, he can seldom annul a sale or recover damages on account of a defect in the thing sold. Chitty, Contr. 133, et seq.; Sugd. Vend. 222 2 Kent, Com. 374; Co. Litt. 102, a; 2 B1. Com. 452; Bac. Ab. Action on the case, E; 2 Com. Cont. 263.
REDIDIT SE, Eng. practice. He surrendered himself. This is endorsed on the bail piece when a certificate has been made by the proper officer that the defendant is in custody. Pr. Reg. 64; Com. Dig. Bail Q 4.
REDITUS ALBI. A rent payable in money; sometimes called white rent or, blanche farm. Vide Alba firma.
REDITUS NIGRI. A rent payable in grain, work, and the like; It was also called black mail. This name was given to it to distinguish it from reditus albi, which was payable in money. Vide Alba firma.
RE-DRAFT, comm. law. A bill of exchange drawn at the place where another bill was made payable, and where it was protested, upon the place where the first bill was drawn, or when there is no regular commercial intercourse rendering that practicable, then in the next best or most direct practicable course. 1 Bell's Com. 406, 5th ed. Vide Reexchange.
REDRESS. The act of receiving satisfaction for an injury sustained. For the mode of obtaining redress, vide Remedies 1 Chit. Pr. Annal. Table.
REDUBBERS, crim law. Those who bought stolen cloth, and dyed it of another color to prevent its being identified, were anciently so called. 3 Inst. 134.
REDUNDANCY. Matter introduced in an answer, or pleading, which is foreign to the bill or articles.
2. In the case of Dysart v. Dysart, 3 Curt. Ecc. R. 543, in giving the judgment of the court, Dr. Lushigton says: "It may not, perhaps, be easy to define the meaning of this term [redundant]in a short sentence, but the true meaning I take to be this: the respondent is not to insert in his answer any matter foreign to the articles he is called upon to answer, although such matter may be admissible in a plea; but he may, in his answer, plead matter by way of explanation pertinent to the articles, even if such matter shall be solely in his own knowledge and to such extent incapable of proof; or he may state matter which can be substantiated by witnesses; but in this latter instance, if such matter be introduced into the answer and not afterwards put in the plea or proved, the court will give no weight or credence to such part of the answer."
3. A material distinction is to be observed between redundancy in the allegation and redundancy in the proof. In the former case, a variance between the allegation and the proof will be fatal if the redundant allegations are descriptive of that which is essential. But in the latter case, redundancy cannot vitiate, because more is proved than is alleged, unless the matter superfluously proved goes to contradict some essential part of the allegation. 1 Greenl. Ev. §67; 1 Stark. Ev. 401.
RE-ENTRY, estates. The resuming or retaking possession of land which the-party lately had.
2. Ground rent deeds and leases frequently contain a clause authorizing the landlord to reenter on the non-payment of rent, or the breach of some covenant, when the estate is forfeited. Story, Eq. Jur. §1315; 1 Fonb. Eq. B. 1, c. 6, §4, note h. Forfeitures for the non-payment of rent being the most common, will here alone be considered. When such a forfeiture has taken place, the lessor or his assigns have a right to repossess themselves of the demised premises.
3. Great niceties must be observed in making such reentry. Unless they have been dispensed with by the agreement of the parties, several things are required by law to be previously done by the landlord or reversioner to entitle him to reenter. 3 Call, 424; 8 Watts, 51; 9 Watts, 258; 18 John. 450; 4 N. H. Rep. 254; 13 Wend. 524; 6 Halst. 270; 2 N. H. Rep. 164; 1 Saund. 287, n. 16.
4. - 1. There must be a demand of rent. Com. Dig. Rent, D 3 a 18 Vin. Ab. 482; Bac. Ab. Rent, H.
5. - 2. The demand must be of the precise rent due, for the demand of a penny more or less will avoid the entry. Com. Dig. Rent, D 5. If a part of the rent be paid, a reentry may be made for the part unpaid. Bac. Ab. Conditions, O 4; Co. Litt. 203; Cro. Jac. 511.
6. - 3. It must be made precisely on the day when the rent is due and payable by the lease, to save the forfeiture. 7 T. R. 117. As where the lease contains a proviso that if the rent shall be behind and unpaid, for the space of thirty, or any other number of days, it must be made on the thirtieth or last day. Com. Dig. Rent, D 7; Bac. Abr. Rent, I.
7. - 4. It must be made a convenient time before sunset, that the money may be counted and a receipt given, while there is light enough reasonably to do so therefore proof of a demand in the afternoon of the last day, without showing in what part of the afternoon it was made, and that it was towards sunset or late in the afternoon, is not sufficient. Jackson v. Harrison, 17 Johns. 66; Com. Dig. Rent, D 7; Bac. Abr. Rent, I.
8. - 5. It must be made upon the land, and at the most notorious place of it. 6 Bac. Abr. 31; 2 Roll. Abr. 428; see 16 Johns. 222. Therefore, if there be a dwelling-house upon the laud, the demand must be made at the front door, though it is not necessary to enter the house, notwithstanding the door be open; if woodland be the subject of the lease, a demand ought to be made at the gate, or some highway leading through the woods as the most notorious. Co. Litt. 202; Com. Dig. Rent, D. 6.
9. - 6. Unless a place is appointed where the rent is payable, in which case a demand must be made at such place; Com. Dig. Rent, D. 6; for the presumption is the tenant was there to pay it. Bac. Abr. Rent, I.
10. - 7. A demand of the rent must be made in fact, although there should be no person on the land ready to pay it. Bac. Ab. Rent, I.
11. - 8. If after these requisites have been performed by the lessor or reversioner, the tenant neglects or refuses to pay the rent, and no sufficient distress can be found on the premises, then the lessor or reversioner is to reenter. 6 Serg. & Rawle, 151; 8 Watts, R. 51; 1 Saund. 287, n. 16. He should then openly declare before the witnesses he may have provided for the purpose, that for the want of a sufficient distress, and because of the non-payment of the rent demanded, mentioning the amount, he reenters and re-possesses himself of the premises.
12. A tender of the rent by the tenant to the lessor, made on the last day, either on or off the premises, will save the forfeiture.
13. It follows as a necessary inference from what has been premised, that a demand made before or after the last day which the lessee has to pay the rent, in order to prevent the forfeiture, or off the land, will not be sufficient to defeat the estate. 7 T. R. 11 7.
14. The forfeiture may be waived by the lessor, in the case of a lease for years, by his acceptance of rent, accruing since the forfeiture, provided he knew of the cause. 3 Rep. 64.
15. A reentry cannot be made for nonpayment of rent if there is any distrainable property on the premises, which may be taken in satisfaction of the rent, and every part of the premises must be searched. 2 Phil. Ev. 180.
16. The entry may be made by the lessor or reversioner himself, or by attorney; Cro. Eliz. 601; 7 T. R. 117; the entry of one joint tenant or tenant in common, enures to the benefit of the whole. Hob 120.
17. After the entry has been made, evidence of it ought to be perpetuated.
18. Courts of chancery will generally make the lessor account to the lessee for the profits of the estate, during the time of his being in possession; and will compel him, after he has satisfied the rent in arrear, and the costs attending his entry, and detention of the lands, to give up the possession to the lessee, and to pay him the surplus profits of the estate. 1 Co. Litt. 203 a, n. 3; 1 Lev. 170; T.. Raym. 135, 158; 3 Cruise, 299, 300. See also 6 Binn. 420; 18 Ves. 60; Bac. Ab. Rent, K; 3 Call, 491; 18 Ves. 58 2 Story, Eq. Jur. §1315; 4 Bing. R. 178; 33 En . C. L. It. 312 , 1 How. S. C. R. 211
REEVE. The name of an ancient English officer of justice, inferior in rank to an alderman.
2. He was a ministerial officer, appointed to execute process, keep the king's peace, and put the laws in execution. He witnessed all contracts and bargains; brought offenders to justice, and delivered them to punishment; took bail for such as were to appear at the county court, and presided at the court or folcmote. He was also called gerefa.
3. There were several kinds of reeves as the shire-gerefa, shire-reeve or sheriff; the heh-gerefa, or high-sheriff, tithing-reeve, burgh or borough-reeve.
RE-EXAMINATION. A second examination of a thing. A witness maybe reexamined, in a trial at law, in the discretion of the court, and this is seldom refused. In equity, it is a general rule that there can be no reexamination of a witness, after he has once signed his name to the deposition, and turned his back upon the commissioner or examiner; the reason of this is that he may be tam-pered with or induced to retract or qualify what he has sworn to. 1 Meriv. 130.
RE-EXCHANGE, contracts, commerce. The expense incurred by a bill's being dishonored in a foreign country where it is made payable, and returned to that country in which it was made or indorsed, and there taken up; the amount of this depends upon the course of exchange between the two countries, through which the bill has been negotiated. In other words, reexchange is the difference between the draft and redraft.
2. The drawer of a bill is liable for the whole amount of reexchange occasioned by the circuitous mode of returning the bill through the various countries in which it has been negotiated, as much as for that occasioned by a direct return. Maxw. L. D. ii. t.; 5 Com. Dig. 150.
3. In some states, legislative enactments have been made which regulate damages on reexchange. These damages are different in the several states, and this want of uniformity, if it does not create injustice, must be admitted to be a serious evil. 2 Amer. Jur. 79. See Chit. on Bills. (ed. of 1836,) 666. See Damages on Bills of Exchange.
REFALO. A word composed of the three initial syllables re. fa. lo., for recordari facias loquelam. (q. v.) 2 Sell. Pr 160; 8 Dowl. R. 514.
REFECTION, civil law. Reparation, reestablishment of a building. Dig. 19, 1, 6, 1.
REFEREE. A person to whom has been referred a matter in dispute, in order that he may settle it. His judgment is called an award. Vide Arbitrator; Reference.
REFERENCE, contracts. An agreement to submit to certain arbitrators, matters in dispute between two or more parties, for their decision, and judgment. The persons to whom such matters are referred are sometimes called referees.
REFERENCE, mercantile law. A direction or request by a party who asks a credit to the person from whom he expects it, to call on some other person named in order to ascertain the character or mercantile standing of the former.
REFERENCE, practice. The act of sending any matter by a court of chancery or one exercising equitable powers, to a master or other officer, in order that he may ascertain facts and report to the court. By reference is also understood that part of an instrument of writing where it points to another for the matters therein contained. For the effect of such reference, see 1 Pick. R. 27; 17 Mass. R. 443; 15 Pick. R. 66; 7 Halst. R. 25; 14 Wend. R. 619; 10 Conn. R. 422; 4 Greenl. R. 14, 471; 3 Greenl. R. 393; 6 Pick. R. 460; the thing referred to is also called a reference.
REFERENDUM, international law. When an amhassador receives propositions touching an object over which he has no sufficient power and he is without instruction, he accepts it ad referendum, that is, under the condition that it shall be acted upon by his government, to which it is referred. The note addressed in that case to his government to submit the question to its consideration is called a referendum.
REFORM. To reorganize; to rearrange as, the jury "shall be reformed by putting to and taking out of the persons so impanneled." Stat. 3 H. VIII. c. 12; Bac. Ab. Juries, A.
2. To reform an instrument in equity, is to make a decree that a deed or other agreement shall be made or construed as it was originally intended by the parties, when an error or mistake as to a fact has been committed. A contract has been reformed, although the party applying to the court was in the legal profession, and he himself drew the contract, it appearing clear that it was framed so as to admit of a construction inconsistent with the true agreement of the parties. 1 Sim. & Stu. 210; 3 Russ. R. 424. But a contract will not be reformed in consequence of an error of law. 1 Russ. & M. 418; 1 Chit. Pr. 124.
REFORMATION, criminal law. The act of bringing back a criminal to such a sense of justice, so that he may live in society without any detriment to it.
2. The object of the criminal law ought to be to reform the criminal, while it protects society by his punishment. One of the best attempts at reformation is the plan of solitary confinement in a penitentiary. While the convict has time to reflect he cannot be injured by evil example or corrupt communication.
TO REFRESH. To reexamine a subject by having a reference to something connected with it.
2. A witness has a right to examine a memorandum or paper which he made in relation to certain facts, when the same occurred, in order to refresh his memory, but the paper or memorandum itself is not evidence. 5 Wend. 301; 12 S. & R. 328; 6 Pick. 222; 1 A. K. Marsh. 188; 2 Conn. 213. See 1 Rep. Const. Ct. 336, 373, 423.
TO REFUND. To pay back by the party who has received it, to the party who has paid it, money which ought not to have been paid.
2. On a deficiency of assets, executors and administrators cum testamento annexo, are entitled to have refunded to them legacies which they may have paid, or so much as may be necessary. to pay the debts of the testator; and in order to insure this, they are generally authorized to require a refunding bond. Vide 8 Vin. Ab. 418; 18 In Vin. Ab. 273; Bac. Ab. Legacies, H.
REFUSAL. The act of declining to receive or to do something.
2. A grantee may refuse a title, vide Assent; one appointed executor may refuse to act as such. la some cases, a neglect to perform a duty which the party is required by law or his agreement to do, will amount to a refusal.
REGENCY. The authority of the person in monarchical countries invested with the right of governing the state in the name of the monarch, during his minority, absence, sickness or other inability.
REGENT. 1. A ruler, a governor. The term is usually applied to one who governs a regency, or rules in the place of another.
2. In the canon law, it signifies a master or professor of a college. Dict. du Dr. Call. h. t. 3. It sometimes means simply a ruler, director, or superintendent; as, in New York, where the board who have the superintendence of all the colleges, academies and schools, are called the regents of the University of the state of New York.
REGIAM MAJESTATEM. The name of an ancient law book ascribed to David I of Scotland. It is, according to Dr. Robertson, a servile copy of Glanville. Ro- bertson's Hist. of Charles V., vol. 1, note 25, p. 262; Ersk. Prin. B. 1, t. 1, n. 13.
REGICIDE. The killing of a king, aud, by extension, of a queen. Theorie des Lois Criminelles, vol. 1, p. 300. REGIDOR. Laws of the Spanish empire of the Indies. One of a body, never exceeding twelve, who formed a part of the ayuntamiento or municipal council in every capital of a jurisdiction. The office of regidor was held for life, that is to say, during the pleasure of the supreme authority. In most places the office was purchased; in some cities, however, they were elected by persons of the district, called capitulares. 12 Pet. R. 442, note.
REGIMIENTO. Laws of the Spanish empire of the Indies. The body of regi- dores who never exceeded twelve, forming a part of the municipal council or ayuntamiento, in every capital of a jurisdiction. 12 Pet. Rep. 442, note.
REGISTER, evidence. A book containing a record of facts as they occur, kept by public authority; a register of births, marriages and burials.
2. Although not originally intended for the purposes of evidence, public registers are in general admissible to prove the facts to which they relate.
3. In Pennsylvania, the registry of births, &c. made by any religious society in the state, is evidence by act of assembly, but it must be proved as at common law. 6 Binn. R. 416. A copy of the register of births and deaths of the Society of Friends in England, proved before the lord mayor of London by an ex parte affidavit, was allowed to be given in evidence to prove the death of a person; 1 Dall. 2; and a copy of a parish register in Barbadoes, certi-fied to be a true copy by the rector, proved by the oath of a witness, taken before the deputy secretary of the island and notary public, under his hand and seal was held admissible to prove pedigree; the handwriting and office of the secretary being proved. 10 Serg. & Rawle, 383.
4. In North Carolina, a parish register of births, marriages and deaths, kept pursuant to the statute of that state, is evidence of pedigree. 2 Murphey's R. 47.
5. In Connecticut, a parish register has been received in evidence. 2 Root, R. 99. See 15 John. R. 226. Vide 1 Phil. Ev. 305; 1 Curt. R. 755; 6 Eng. Eccl. R. 452; Cov. on Conv. Ev. 304.
REGISTER, common law. The certificate of registry granted to the person or persons entitled thereto, by the collector of the district, comprehending the port to which any ship or vessel shall belong; more properly, the registry itself. For the form, requisites, &c. of certificate of registry, see Act of Con. Dec. 31, 1792; Story's Laws U. S. 269 3 Kent, Com. 4th ed. 141.
REGISTER or REGISTRAR. An officer authorized by law to keep a record called a register or registry; as the register for the probate of wills.
REGISTER FOR THE PROBATE OF WILLS. An officer in Pennsylvania, who has gene- rally the same powers that judges of probates and surrogates have in other states, and the ordinary has in England, in admitting the wills of deceased persons to probate.
REGISTER OF WRITS. This is a book preserved in the English court of chancery, in which were entered, from time to time, all forms of writs once issued.
2. It was first printed and published in the reign of Henry VIII. This book is still in authority, as containing, in general, an accurate transcript of the forms of all writs as then framed, and as they ought still to be framed in modern practice.
3. It seems, however, that a variation from the register is not conclusive against the propriety of a form, if other sufficient authority can be adduced to prove its correctness. Steph. Pl. 7, 8.
REGISTRARIUS. An ancient name given to a notary. In England this name is confined to designate the officer of some court, the records or archives of which are in his custody.
REGISTRUM BREVIUM. The name of an ancient book which was a collection of writs. See Register of Writs
REGISTRY. A book authorized by law, in which writings are registered or recorded. Vide To Record; Register.
REGNANT. One having authority as a king; one in the exercise of royal authority.
REGRATING, crim. law. Every practice or device, by act, conspiracy, words, or news, to enhance the price of victuals or other merchandise, is so denomin-ated. 3 Inst. 196; 1 Russ. on Cr. 169.
2. In the Roman law, persons who monopolized grain, and other produce of the earth, were called dardanarii, and were variously punished. Dig. 47, 11, 6.
REGRESS. Returning; going back opposed to ingress. (q. v.)
REGULAR DEPOSIT. One where the thing deposited must be returned. It is distinguished from an irregular deposit.
REGULAR AND IRREGULAR PROCESS. Regular process is that which has been lawfully issued by a court or magistrate, having competent jurisdiction. Irregular process is that which has been illegally issued.
2. When the process is regular, and the defendant has been damnified, as in the case of a malicious arrest, his remedy is by an action on the case, and not trespass: when it is irregular, the remedy is by action of trespass.
3. If the process be wholly illegal or misapplied as to the person intended to be arrested, without regard to any question of fact, or whether innocent or guilty, or the existence of any debt, then the party imprisoned may legally resist the arrest and imprisonment, and may escape, be rescued, or even break prison; but if the process and imprisonment were in form legal, each of these acts would be punishable, however innocent the defendant might be, for he ought to submit to legal process, and obtain his release by due course of law. 1 Chit. Pr. 637; 5 East, R. 304, 308; S. C. 1 Smitt's Rep. 555; 6 T. R. 234; Foster, C. L. 312; 2 Wils. 47; 1 East, P. C. 310 Hawk. B. 2, c. 19, s. 1, 2.
4. When a party has been arrested on process which has afterwards been set aside for irregularity, he may bring an action of trespass and recover damages as well against the attorney who issued it, as the party, though such process will justify the officer who executed it. 8 Adolph. & Ell. 449; S. C. 35 E. C. L. R. 433; 15 East, R. 615, note c; 1 Stra. 509; 2 W. Bl. Rep., 845; 2 Conn. R. 700; 9 Conn. 141; 11 Mass. 500; 6 Greenl. 421; 3 Gill & John. 377; 1 Bailey, R. 441; 2 Litt. 234; 3 S. & R. 139 12 John. 257 3 Wils. 376; and vide Malicious Prosecution.
REHABILlTATION. The act by which a man is restored to his former ability, of which he had been deprived by a conviction, sentence or judgment of a competent tribunal.
REHEARING. A second consideration which the court gives to a cause, on a second argument.
2. A rehearing takes place principally when the court has doubts on the subject to be decided; but it cannot be granted by the supreme court after the cause has been remitted to the court below to carry into effect the decree of the supreme court. 7 Wheat. 58.
REI INTERVENTUS. When a party is imperfectly bound in an obligation, he may in general, annul such imperfect obligation; but when he has permitted the opposite party to act as if his obligation or agreement were complete, such things have intervened as to deprive him of the right to rescind such obligation; these circumstances are the rei interventus. Bell's Com. 328, 329, 5th ed.; Burt. Man. P. R. 128.
RE-INSURANCE, mar. contr. An insurance made by a former insurer, his executors, administrators, or assigns, to protect himself and his estate from a risk to which they were liable by the first insurance.
2. It differs from a double insurance (q. v.) in this, that in the latter cases, the insured makes two insurances on the same risk and the same interest.
3. The insurer on a re-insurance is answerable only to the party whom he has insured, and not to the original insured, who can have no remedy against him in case of loss, even though the original insurer become insolvent, because there is no privity of contract between them and the original insured. 3 Kent, Com. 227; Park. on Ins. c. 15, p. 276; Marsh. Ins. B. 1, c. 4, s. 4
REISSUABLE NOTES. Bank notes, which after having been once paid, may again be put into circulation, are so called.
2. They cannot properly be called valuable securities, while in the hands of the maker; but in an indictment, may properly be called goods and chattels. Ry. & Mood. C. C. 218; vide 5 Mason's R. 537; 2 Russ. on Cr. 147. And such notes would fall within the description of promissory notes. 2 Leach, 1090, 1093; Russ. & Ry. 232. Vide Bank note; Note; Promissory note.
REJOINDER, pleadings. The name of the defendant's answer to the plaintiff's replication.
2. The general requisites of a rejoinder are, 1. It must be triable. 2. It must not be double, nor will several rejoinders be allowed to the same declaration. 3. It must be certain. 4. It must be direct and positive, and not merely by way of recital or argumentative. 5. it must not be repugnant or insensible. 6. It must be conformable to, and not depart from the plea. Co. Litt. 304; 6 Com. Dig. 185 Archb. Civ. Pl. 278; U. S. Dig, Pleading, XIII.
RELAPSE. The condition of one who, after having abandoned a course of vice, returns to it again. Vide Recidive.
RELATION, civil law. The report which the judges made of the proceedings in certain suits to the prince were so called.
2. These relations took place when the judge had no law to direct him, or when the laws were susceptible of difficulties; it was then referred to the prince, who was the author of the law, to give the interpretation. Those reports were made in writing and contained the pleadings of the parties, and all the proceedings, together with the judge's opinion, and prayed the emperor to order what should be done. The ordinance of the prince thus required was called a rescript. (q. v.) the use of these relations was abolished by Justinian, Nov. 125.
RELATION, contracts, construction. When an act is done at one time, and it operates upon the thing as if done at another time, it is said to do so by relation; as, if a man deliver a deed as an escrow, to be delivered by the party holding it, to the grantor, on the performance of some act, the delivery to the latter will have relation back to the first delivery. Termes de la Ley. Again, if a partner be adjudged a bankrupt, the partnership is dissolved, and such dissolution relates back to the time when the commission issued. 3 Kent, Com. 33. Vide 18 Vin. Ab. 285; 4 Com. Dig. 245; 5 Id. 339; Litt. S. C. 462-466; 2 John. 510; 4 John. 230; 15 John. 809; 2 Har. & John. 151, and the article Fiction.
RELATIONS, kindred. In its most extensive signification, this term includes all the kindred of the person spoken of. In a more limited sense, it signifies those persons who are entitled as next of kin under the statute of distribution.
2. A legacy to "relations" generally, or to "relations by blood or marriage," without enumerating any of them, will, therefore, entitle to a share, such of the testator's relatives as would be entitled under the statute of distribution's in the event of intestacy. 1 Madd. Ch. R. 45; 1 Bro. C. C. 33. See the cases referred to under the word Relations, article Construction.
3. Relations to either of the parties, even beyond the ninth degree, have been holden incapable to serve on juries. 3 Chit. Pr. 795, note c. 4. Relationship or affinity is no objection to a witness, unless in the case of hushand and wife. See Witness.
RELATOR. A rehearser or teller; one who, by leave of court, brings an information in the nature of a quo warranto.
2. At common law, strictly speaking, no such person as a relator to an information is known; he being a creature of the statute 9 Anne, c. 20.
3. In this country, even where no statute similar to that of Anne prevails, informations are allowed to be filed by private persons desirous to try their rights, in the name of the attorney general, and these are commonly called relators; though no judgment for costs can be rendered for or against them. 2 Dall. 112; 5 Mass. 231; 15 Serg. & Rawle, 127; 3 Serg. & Rawle, 52; Ang. on Corp. 470. In chancery the relator is responsible for costs. 4 Bouv. Inst. n. 4022.
RELATIVE. One connected with another by blood or affinity; a relation, a kinsman or kinswoman. In an adjective sense, having relation or connexion with some other person or thing; as relative rights, relative powers.
RELATIVE POWERS. Those which relate to land, so called to distinguish them from those which are collateral to it.
2. These powers are appendant, as where a tenant for life has a power of making leases in possession. They are in gross when a person has an estate in the land, with a power of appointment, the execution of which falls out of the compass of his estate, but, notwithstanding, is annexed in privity to it, and takes effect in the appointee out of an interest appointed in the appointer. 2 Bouv. Inst. n. 1930.
RELATIVE RIGHTS. Those to which a person is entitled in consequence of his relation with others such as the rights of a hushand in relation to his wife; of a father, as to his children; of a master, as to his servant; of a guardian, as to his ward. 2. In general, the superior may maintain an action for an injury committed against his relative rights. See 2 Bouv. Inst. n. 2277 to 2296; 3 Bouv. Inst. n. 3491; 4 Bouv. Inst. n. 3615 to 3618.
RELEASE. Releases are of two kinds. 1. Such as give up, discharge, or abandon a right of action. 2. Such as convey a man's interest or right to another, who has possession of it, or some estate in the same. Touch. 320; Litt. sec. 444; Nels. Ab. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; Rolle's Ab. h. t.; Com. Dig. h. t.
RELEASE, contracts. A release is the giving or discharging of a right of action which a man has or may claim against another, or that which is his. Touch. 320 Bac. Ab. h. t.; Co. Litt. 264 a.
2. This kind of a release is different from that which is used for the purpose of convoying real estate. Here a mere right is surrendered; in the other case not only a right is given up, but an interest in the estate is conveyed, and becomes vested in the release.
3. Releases may be considered, as to their form, their different kinds, and their effect. §1. The operative words of a release are remise, release, quitclaim, discharge and acquit; but other words will answer the purpose. Sid. 265; Cro. Jac. 696; 9 Co. 52; Show. 331.
4. - §2. Releases are either express, or releases in deed; or those arising by operation of law. An express release is one which is distinctly made in the deed; a release by operation of law, is one which, though not expressly made, the law presumes in consequence of some act of, the releasor; for instance, when, one of several joint obligors is expressly released, the others are also released by operation of law . 3 Salk. 298. Hob. 10; Id. 66; Noy, 62; 4 Mod. 380; 7 Johns. Rep. 207.
5. A release may also be implied; as, if a creditor voluntarily deliver to his debtor the bond, note, or other evidence of his claim. And when the debtor is in possession of such security, it will be presumed that it has been delivered to him. Poth. Obl. n. 608, 609.
6. - §3. As to their effect, releases 1st, acquit the releasee: and 2dly, enable him to be examined as a witness.
7. - 1st. Littleton says a release of all demands is the best and strongest release. Sect. 508. Lord Coke, on the contrary, says claims is a stronger word. Co. Litt. 291 b.
8. In general the words of a release will he restrained by the particular occasion of giving it. 3 Lev. 273; 1 Show. 151: 2 Mod. 108, n.; 2 Show. 47; T. Raym. 399 3 Mod. 277; Palm. 218; 1 Lev. 235.
9. The reader is referred to the following cases where a construction has been given to the expressions mentioned. A release of "all actions, suits and demands," 3 Mod. 277: " all actions, debts, duties, and demands," Ibid. 1 and 64; 3 Mod. 185; 8 Co. 150 b; 2 Saund. 6 a; all demands," 5 Co. 70, b; 2 Mod. 281; 3 Mod 278; 1 Lev. 99; Salk. 578; 2 Rolle's Rep. 12 Mod. 465; 2 Conn. Rep. 120; "all actions, quarrels, trespasses " Dy. 2171 pl. 2; Cro. Jac. 487; " all errors, and all actions, suits, and writs of error whatsoever," T. Ray. 3 99 all suits," 8 Co. 150 of covenants," 5 Co. 70 b.
10. - 2d. A release by a witness where he has an interest in the matter which is the subject of the suit or release by the party on whose side he is interested, renders him competent. 1 Phil. Ev. 102, and the cases cited in n. a. Vide 2 Chitt. It. 329; 1 D. & R. 361; Harr. Dig. h. t.; Bouv. Inst. Index, h. t.
RELEASE, estates. The "conveyance of a man's interest or right, which he hath unto a thing, to another that hath the possession thereof, or some estate therein." Touch. 320.
2. The words generally used in such conveyance, are, "remised, released, and forever quit claimed." Litt. s ec, 445.
3. Releases of land are, in respect of their operation, divided into four sorts. 1. Releases that enure by way of passing the estate, or mitter l'estate. (q. v.) 2. Releases that enure by way of passing the right, or mitter le droit. 3. Releases that enure by enlargement of the estate; and
4. Releases that enure by way of extinguishment. Vide 4 Cruise, 71; Co. Lit. 264; 3 Marsh. Decis. 185; Gilb. Ten. 82; 2 Sumn. R. 487; 10 Pick. R. 195; 10 John. R. 456; 7 Mass. R. 381; 8 Pick. R. 143; 5 Har. & John. 158; N. H. Rep. 402; Paige's R. 299.
RELEASEE. A person to whom a release is made.
RELEASOR. He who makes a release.
ELEGATION, civil law. Among the Romans relegation was a banishment to a certain place, and consequently was an interdiction of all places except the one designated.
2. It differed from deportation. (q. v.) Relegation and deportation agree u these particulars: 1. Neither could be in a Roman city or province. 2. Neither caused the party punished to lose his liberty. Inst. 1,16 , 2; Digest, 48, 22, 4; Code, 9, 47,26.
3. Relegation and deportation differed in this. 1. Because deportation deprived of the right of citizenship, which was preserved notwithstanding the relegation. 2. Because deportation was always perpetual, and relegation was generally for a limited time. 3. Because deportation was always attended with confiscation of property, although not mentioned in the sentence; while a loss of property was not a consequence of relegation unless it was perpetual, or made a part of the sentence. Inst. 1, 12, 1 & 2; Dig. 48, 20, 7, 5; Id. 48, 22, 1 to 7; Code, 9, 47, 8.
RELEVANCY. By this term is understood the evidence which is applicable to the issue joined; it is relevant when it is applicable to the issue, and ought to be admitted; it is irrelevant, when it does not apply; and it ought then to be excluded. 3 Hawks, 122; 4 Litt. Rep. 272; 7 Mart. Lo. R. N. S. 198. See Greenl. Ev. §49, et seq.; 1 Phil. Ev. 169; 11 S. & R. 134; 7 Wend. R. 359; 1 Rawle, R. 311; 3 Pet. R. 336; 5 Harr. & Johns. 51, 56; 1 Watts. & Serg. 362; 6 Watts. R. 266; 1 S. & R. 298.
RELEVANT EVIDENCE. That which is applicable to the issue and which ought to be received; the phrase is used in opposition to irrelevant evidence, which is that which is not so applicable, and which must be rejected. Vide Relevancy.
RELICT. A widow; as A B, relict of C D.
RELICTA VFRIFICATIONE. When a judgment is confessed by cognovit actionem after plea pleaded, and then the plea is withdrawn, it is called a confession or cognovit actionem relicta verificatione. He acknowledges the action having abandoned his plea. See 5 Halst. 332.
RELICTION. An increase of the land by the sudden retreat of the sea or a river.
2. Relicted lands arising from the sea and in navigable rivers, (q. v.) generally belong to the state and all relicted lands of unnavigable rivers generally belong to the proprietor of the estate to which such rivers act as boundaries. Schultes on Aqu. Rights, 138; Ang. on Tide Wat. 75. But this reliction must be from the sea in its usual state for if it should inundate the land and then recede, this would be no reliction. Harg. Tr. 15. Vide Ang. on Wat. Co. 220. 3. Reliction differs from avulsion, (q. v.) and from alluvion. (q. v.)
RELIEF, Engl. law. A relief was an incident to every feudal tenure, by way of fine or composition with the lord for taking up the estate which was lapsed or fallen in by the death of the last tenant. At one time the amount was arbitrary; but afterwards the relief of a knight's fee became fixed at one hundred shillings. 2 Bl. Com. 65.
RELIEF, practice. That assistance which a court of chancery will lend to a party to annul a contract tinctured with fraud, or where there has been a mistake or accident; courts of equity grant relief to all parties in cases where they have rights, ex aequo et bono, and modify and fashion that relief according to circumstances.
RELIGION. Real piety in practice, consisting in the performance of all known duties to God and our fellow men.
2. There are many actions which cannot be regulated by human laws, and many duties are imposed by religion calculated to promote the happiness of society. Besides, there is an infinite number of actions, which though punishable by society, may be concealed from men, and which the magistrate cannot punish. In these cases men are restrained by the knowledge that nothing can be hidden from the eyes of a sovereign intelligent Being; that the soul never dies, that there is a state of future rewards and punishments; in fact that the most secret crimes will be punished. True religion then offers succors to the feeble, consolations to the unfortunate, and fills the wicked with dread.
3. What Montesquieu says of a prince, applies equally to an individual. "A prince," says he, " who loves religion, is a lion, which yields to the hand that caresses him, or to the voice which renders him tame. He who fears religion and bates it, is like a wild beast, which gnaws, the chain which re-strains it from falling on those within its reach. He who has no religion is like a terrible animal which feels no liberty except when it devours its vic- tims or tears them in pieces." Esp. des , Lois, liv. 24, c. 1.
4. But religion can be useful to man only when it is pure. The constitution of the United States has, therefore, wisely provided that it should never be united with the state. Art. 6, 3. Vide Christianity; Religious test; Theo- cracy.
RELIGIOUS TEST. The constitution of the United States, art. 6, s. 3, de-clares that "no religious test shall ever be required as a qualification to any office, or public trust under the United States."
2. This clause was introduced for the double purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test or affirmation, and to cut off forever every pretence of any alliance between church and state in the national government. Story on the Const. §1841.
RELINQUISHMENT, practice. A forsaking, abandoning, or giving over a right; for example, a plaintiff may relinquish a bad count in a declaration, and proceed on the good: a man may relinquish a part of his claim in order to give a court jurisdiction.
RELOCATION, Scotch law, contracts. To let again to renew a lease, is called a relocation.
2. When a tenant holds over after the expiration of his lease, with the consentof his landlord, this will amount to a relocation.
REMAINDER, estates. The remnant of an estate in lands or tenements expectant on a particular estate, created together with the same, at one time. Co. Litt. 143 a.
2. Remainders are either vested or contingent. A vested remainder is one by which a present interest passes to the party. though to be enjoyed in future; and by which the estate is invariably fixed to remain to a determinate person, after the particular estate has been spent. Vide 2 Jo ins. R. 288; 1 Yeates, R. 340.
3. A contingent remainder is one which is limited to take effect on an event or condition, which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding particular estate; in which case such remainder never can take effect.
4. According to Mr. Fearne, contingent remainders may properly be distin-guished into four sorts. 1. Where the remainder depends entirely on a contin-gent determination of the preceding estate itself. 2. Where the contingency on which the remainder is to take effect, is independent of the determination of the preceding estate. 3. Where the condition upon which the remainder is limited, is certain in event, but the determination of the particular estate may happen before it. 4. Where the person, to whom the remainder is limited, is not yet ascertained, or not yet in being. Fearne, 5.
5. The pupillary substitutions of the civil law somewhat resembled contingent remainders. 1 Brown's Civ. Law, 214, n.; Burr. 1623. Vide, generally, Viner's Ab. h. t.; Bac. Ab. h. t; Com. Dig. h. t.; 4 Kent, Com. 189; Yelv. 1, n.; Cruise, Dig. tit. 16; 1 Supp. to Ves. jr. 184; Bouv. Inst. Index, h. t.
REMAINDER-MAN. One who is entitled to the remainder of the estate after a particular estate carved out of it has expired.
TO REMAND. To send back or recommit. When a prisoner is brought before a judge on a habeas corpus, for the purpose of obtaining his liberty, the judge hears the case, and either discharges him or not; when there is cause for his detention, he remands him.
REMANDING A CAUSE, practice. The sending it back to the same court out ofwhich it came for the purpose of having some action on it there. March, R. 100.
REMANENT PRO DEFECTU EMPTORUM, practice. The return made by the sheriff to a writ of execution when he has not been able to sell the property seized, that the same remains unsold for want of buyers: in that case the plaintiff is entitled to a venditioni exponas. Com. Dig. Execution, C. 8.
REMANET, practice. The causes which are entered for trial, and which cannot be tried during tho term, are remanets. Lee's Dict. Trial, vii.; 1 Sell. Pr. 434; 1 Phil. Ev., 4.
REMEDIAL. That which affords a remedy; as, a remedial statute, or one which is made to supply some defects or abridge some superfluities of the common law. 1 131. Com. 86. The term remedial statute is also applied to those acts which give a new remedy. Esp. Pen. Act. 1.
REMEDY. The means employed to enforce a right or redress an injury.
2. The importance of selecting a proper remedy is made strikingly evident by tho following statement. "Recently a common law barrister, very eminent for his legal attainments, sound opinions, and great practice, advised that there was no remedy whatever against a married woman, who, having a considerable separate estate, had joined with her hushand in a promissory note for X2500, for a debt of her hushand, because he was of opinion that the contract of a married woman is absolutely void, and referred to a decision to that effect, viz. Marshall v. Rutton, 8 T. R. 545, he not knowing, or forgetting, that in equity, under such circumstances, payment might have been enforced out of the separate estate. And afterwards, a very eminent equity counsel, equally erroneously advised, in the same case, that the remedy was only in equity, although it appeared upon the face of the case, as then stated, that, after the death of her hushand, the wife had promised to pay, in consideration of forbearance, and upon which promise she might have been arrested and sued at law. If the common law counsel had properly advised proceedings in equity, or if the equity counsel had advised proceedings by arrest at law, upon the promise, after the death of the hushand, the whole debt would have been paid. But, upon this latter opinion, a bill in chancery was filed, and so much time elapsed before decree, that a great part of the property was dissipated, and the wife escaped with the residue into France, and the creditor thus wholly lost his debt, which would have been recovered, if the proper proceedings had been adopted in the first or even second instance. This is one of the very numerous cases almost daily occurring, illustrative of the consequences of the want of, at least, a general knowledge of every branch of law."
3. Remedies may be considered in relation to 1. The enforcement of contracts. 2. The redress of torts or injuries.
4. - §1. The remedies for the enforcement of contracts are generally by action. The form of these depend upon the nature of the contract. They will be briefly considered, each separately.
5. - 1. The breach of parol or simple contracts, whether verbal or written, express or implied, for the payment of money, or for the performance or omission of any other act, is remediable by action of assumpsit. (q, v.) This is the proper remedy, therefore, to recover money lent, paid, and had and re-ceived to the use of the plaintiff; and in some cases though the money have been received tortiously or by duress of, the person or goods, it may be recovered.in this form of action, as, in that case, the law implies a contract. 2 Ld. Raym. 1216; 2 Bl. R. 827; 3 Wils. R. 304; 2 T. R. 144; 3 Johns. R. 183. This action is also the proper remedy upon wagers, feigned issues, and awards when the submission is not by deed, and to recover money due on foreign judgments; 4 T. R. 493; 3 East, R. 221; 11 East, R; 124; and on by-laws. 1 B. & P. 98.
6. - 2. To recover money due and unpaid upon legal liabilities, Hob. 206; or upon simple contracts either express or implied, whether verbal or written, and upon contracts under seal or of record, Bull. N. P. 167; Com. Dig. Debt, A 9; and on statutes by a party grieved, or by a common informer, whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty; 7 Mass. R. 202; 3 Mass. R. 309, 310; the remedy is by action of debt. Vide Debt.
7. - 3. When a covenantee, has sustained damages in consequence of the non-performance of a promise under seal, whether such promise be contained in a deed poll, indenture, or whether it be express or implied by law from the terms of the deed; or whether the damages be liquidated or unliquidated, the proper remedy is by action of covenant. Vide Covenant.
8. - 4. For the detention of a cliattel, which the party obtained by virtue of a contract, as a bailment, or by some other lawful means, as by finding, the. owner, may in general support an action of detinue, (q. v.) and replevin; (q. v.) or when he has converted the property to his own use, trover and conversion. (q. v.)
9. - §2 . Remedies for the redress of injuries. These remedies are either public, by indictment, when the injury to the individual or to Iiis property affects the public; or private, when the tort is only injurious to the individual.
10. There are three kinds of remedies, namely, 1. The preventive. 2. That which seeks for a compensation. 3. That which has for its object punishment.
11. - 1. The preventive, or removing, or abating remedies, are those which may be by acts of the party aggrieved, or by the intervention of legal proceedings; as, in the case of injuries to the. person, or to personal or real property, defence, resistance, recaption, abatement of nuisance, and surety of the peace, or injunction in equity and perhaps some others.
12. - 2. Remedies for compensation are those which may he either by the acts of the party aggrieved, or summarily before justices, or by arb itration, or action, or suit at law or in equity.
13. - 3. Remedies which have for their object punishments, or compensation and punishments, are either summary proceedings before magistrates, or indictment, &c. The party injured in many cases of private injuries, which are also a public offence, as, batteries and libels, may-have both remedies, a public indictment for the criminal offence, and a civil action for the private wrong. When the law gives several remedies, the party entitled to them may select that best calculated to answer his ends. Vide 2 Atk. 344; 4 Johns. Ch. R. 140; 6 Johns. Ch. Rep. 78; 2 Conn. R. 353; 10 Johns. R. 481; 9 Serg. & Rawle, 302. In felony and some other cases, the private injury is so far merged in the public crime that no action can be maintained for it, at least until after the public prosecution shall have been ended. Vide Civil remedy.
14. It will be proper to consider, 1. The private remedies, as, they seek the prevention of offences, compensation for committing them, and the punishment of their authors. 2. The public remedies, which have for their object protection and punishment.
15. - 1. Private remedies. When the right invaded and the injury committed are merely private, no one has a right to interfere or seek a remedy except the party immediately injured and his professional advisers. But when the remedy is even nominally public, and prosecuted in the name of the commonwealth, any one may institute the proccedings, although not privately injured. 1 Salk. 174; 1 Atk. 221; 8 M. & S. 71.
16. Private remedies are, 1, By the act of the party, or by legal proceedings to prevent the commission or repetition of an injury, or to remove it; or, 2. They are to recover compensation for the injury which has been committed.
17. - 1. The preventive and removing remedies are principally of two descriptions, namely, 1st. Those by the act of the party himself, or of certain relations or third persons permitted by law to interfere, as with respect to the person, by self-defence, resistance, escape, rescue, and even prison breaking, when the imprisonment is clearly illegal; or in case of personal property, by resistance or recaption; or in case of real property, resistance or turning a trespasser out of his house or off his land, even with force; 1 Saund. 81, 140, note 4; or by apprehending a wrong-doer, or by reentry and re-gaining possession, taking care not to commit a forcible entry, or a breach of the peace; or, in case of nuisances, public or private, by abatement; vide Abatement of nuisances; or remedies by distress, (q. v.) or by set off or re-tainer. See, as to remedies by act of the parties, 1 Dane's Ab. c. 2, p. 130.
18. - 2. When the injury is complete or continuing, the remedies to obtain compensation are either specific or in damages. These are summary before jus-tices of the peace or others; or formal, either by action or suit in courts of law or equity, or in the admiralty courts. As an example of summary proceedings may be mentioned the manner of regaining possession by applying to magis-trates against forcible entry and detainer, where the statutes authorize the proceedings. Formal proceedings are instituted when certain rights have been invaded. If the injury affect a legal right, then the remedy is in general by action in a court of law; but if an equitable right, or if it can be better investigated in a court of equity,' then the remedy is by bill. Vide Chancery.
19. - 2. Public remedies. These may be divided into such as are intended to prevent crimes, and those where the object is to punish them. 1. The preven-tive remedies may be exercised without any warrant either by a constable, (q. v.) or other officer, or even by a private citizen. Persons in the act of committing a felony or a broach of the peace may arrested by any one. Vide Arrest. A public nuisance may be abated without any other warrant or authority than that given by the law. Vide Nuisance. 2. The proceedings intended as a punishment for offences, are either summary, vide Conviction; or by indict- ment. (q. v.)
20. Remedies are specific and cumulative; the former are those which can alone be applied to restore a right or punish a crime; for example, where a statute makes unlawful what was lawful before, and gives a particular remedy, that is specific and must be pursued, and no other. Cro. Jac. 644; 1 Salk. 4 5; 2 Burr. 803. But when an offence was antecedently punishable by a common law proceeding, as by indictment, and a statute prescribes a particular remedy, there such particular remedy is cumulative, and proceedings may be had at common law or under the statute. 1 Saund. 134, n. 4. Vide Bac. Ab. Actions in general, B; Bouv. Inst. Index, h. t.; Actions; Arrest; Civil remedy; Election of Actions.
REMEMBRANCERS; Eng. law. Officers of the exchequer, whose duty it is to remind the lord treasurer and the justices of that court of such things as are to be called and attended to for the benefit of the crown.
REMISE. A French word which literally means a surrendering or returning a debt or duty.
2. It is frequently used in this sense in releases; as, "remise, release and forever quit-claim." In the French law the word remise is synonymous with our word release. Poth. Du Contr. de Change, n. 176; Dalloz, Dict, h. t.; Merl. Rep. h. t.
REMISSION, civil law. A release.
2. The remission of the debt is either conventional, when it is expressly granted to the debtor by a creditor having a capacity to alienate; or tacit, when the creditor voluntarily surrenders to his debtor the original title under private signature constituting the obligation. Civ. Code of Lo. art. 2195.
3. By remission is also understood a forgiveness or pardon of an offence. It has the effect of putting back the offender into the same situation he was before the commission of the offence. Remission is generally granted in cases where the offence was involuntary, or committed in self defence. Poth. Pr. Civ. sec t. 7, art. 2, §2.
4. Remission is also used by common lawyers to expresss the act by which a forfeiture or penalty is forgiven. 10 Wheat. 246.
TO REMIT. To annul a fine or forfeiture.
2. This is generally done by the courts where they have a discretion by law: as, for example, when a juror is fined for nonattendance in court, after being duly summoned and, on appearing, he produces evidence to the court that he was sick and unable to attend, the fine will be remitted by the court.
3. In commercial law, to remit is to send money, bills, or something which will answer the purpose of money.
REMITTANCE, comm. law. Money sent by one merchant to another, either in specie, bill of exchange, draft or otherwise.
REMITTEE, contracts. A person to whom a remittance is made. Story on Bailm. §75.
REMITTER, estates. To be placed back in possession.
2. When one having a right to lands is out of possession, and afterwards the freehold is cast upon him by some defective title, and he enters by virtue of that title, the law remits him to his ancient and more certain right and by an equitable fiction, supposes him to have gained possession under it. 3 Bl. Com. 190; 18 Vin. Ab. 431; 7 Com. Dig. 234.
REMITTIT DAMNA. An entry on the record by which the plaintiff declares that he remits the damages or a part of the damages which have been awarded him by the jury, is so called.
2. In some cases, a misjoinder of actions may be cured by the entry of a remittit damna. 1 Chit. Pl. *207.
REMITTOR, contracts. A person who makes a remittance to another.
REMITTITUR DAMNUM, or DAMNA, practice. The act of the plaintiff upon the record, whereby he abates or remits the excess of damages found by the jury beyond the sum laid in the declaration. See 1 Saund. 285, n. 6; 4 Conn. 109; Bouv. Inst. Index, h. t.
REMITTUR OF RECORD. After a record has been removed to the supreme court, and a judgment has been rendered, it is to be remitted or sent back to the court below, for the purpose of re-trying the cause, when the judgment has been reversed, or of issuing an execution when it has been affirmed. The act of so returning the record, and the writ issued for that purpose, bear the name of remittitur.
REMONSTRANCE. A petition to a court, or deliberative or legislative body, in which those who have signed it request that something which it is in contemplation to perform shall not be done.
REMOTE. At a distance; afar off, not immediate. A remote cause is not in general sufficient to charge a man with the commission of a crime, nor with being the author of a tort.
2. When a man suffers an injury in consequence of the violation of a contract, he is in general entitled to damages for the violation of such contract, but not for remote consequences, unconnected with the contract, to which he may be subjected; as, for example, if the maker of a promissory note should not pay it at maturity; the holder will be entitled to damages arising from the breach of the contract, namely, the principal and interest; but should the holder, in consequence of the non-payment of such note, be compelled to stop payment, and lose his credit and his business, the maker will not be responsible for such losses, on account of the great remoteness of the cause; so if an agent who is bound to account should neglect to do so, and a similar failure should take place, the agent would not be responsible for the damages thus caused. 1 Brock. Cir. C. R. 103; see 3 Pet. 69, 84, 89; 5 Mason's R. 161; 3 Wheat. 560; 1 Story, R. 157; 3 Sumn. R. 27, 270; 2 Sm. & Marsh. 340; 7 Hill, 61. Vide Cause.
REMOVAL FROM OFFICE. The act of a competent officer or of the legislature which deprives an officer of his office. It may be express, that is, by a notification that the officer has been removed, or implied, by the appointment of another person to the same office. Wallace's C. C. R. 118. See 13 Pet. 130; 1 Cranch, 137.
REMOVER. practice. When a suit or cause is removed out of one court into another, which is effected by writ of error, certiorari, and the like. 11 Co.41.
REMUNERATION. Reward; recompense; salary. Dig. 17, 1, 7.
RENDER. To yield; to return; to give again; it is the reverse of prender.
RENDEZVOUS. A place appointed for meeting.
2. Among seamen it is usual when vessels sail under convoy, to have a rend ezvous in case of dispersion by storm, an enemy, or other accident,
3. The place where military men meet and lodge, is also called a rendezvous.
RENEWAL. A change of something old for for something new; as, the renewal of a note; the renewal of a lease. See Novation, and 1 Bouv. Inst. n. 800.
TO RENOUNCE. To give up a right; for example, an executor may renounce the right of administering the estate of the testator; a widow the right to administer to her intestate hushand's estate.
2. There are some rights which a person cannot renounce; as, for example, to plead the act of limitation. Before a person can become a citizen of the United States he must renounce all titles of nobility. Vide Naturalization; To Repudiate.
RENT, estates, contracts. A certain profit in money, provisions, chattels, or labor, issuing out of lands and tenements in retribution for the use. 2 Bl. Com. 41; 14 Pet. Rep. 526; Gilb., on Rents, 9; Co. Litt. 142 a; Civ. Code of Lo. art. 2750; Com. on L. & T. 95; 1 Kent, Com. 367; Bradb. on Distr. 24; Bac. Ab. h. t.; Crabb, R. P. SSSS 149-258.
2. A rent somewhat resembles an annuity, (q. v.) their difference consists in the fact that the former issues out of lands, and the latter is a mere personal charge.
3. At common law there were three kinds of rents; namely, rent-service, rent-charge, and rent-seek. When the tenant held his land by fealty or other corporeal service, and a certain rent, this was called rent-service; a right of distress was inseparably incident to this rent.
4. A rent-charge is when the rent is created by deed and the fee granted; and as there is no fealty annexed to such a grant of rent, the right of distress is not in incident; and it requires an express power of distress to be annexed to the grant, which gives it the name of a rent-charge, because the lands are, by the deed, charged with a distress. Co. Litt. 143 b.
5. Rent-seek, or a dry or barren rent, was rent reserves by deed, without a clause of distress,and in a case in which the owner of the rent had no future interest or reversion in the land, he was driven for a remedy to a writ of annuity or writ of assize.
6. But the statute of 4 Geo. II. c. 28, abolished all distinction in the several kinds of rent, so far as to give the remedy by distress in cases of rents-seek, rents of assize, and chief rents, as in the case of rents reserved upon a lease. In Pennsylvania, a distress is inseparably incident to every species of rent that may be reduced to a certainty. 2 Rawle's Rep. 13. In New York, it seems the remedy by distress exists for all kinds of rent. 3 Kent Com. 368. Vide Distress; 18 Viner's Abr. 472; Woodf, L. & T. 184 Gilb. on Rents Com. Dig. h. t.. Dane's Ab. Index, h. t.
7. As to the time when the rent becomes due, it is proper to observe, that there is a distinction to be made. It becomes due for the purpose of making a demand to take advantage of a condition of reentry, or to tender it to save a forfeiture, at sunset of the day on which it is due: but it is not actually due till midnight, for any other purpose. An action could not be supported which had been commenced on the day it became due, although commenced after sunset; and if the owner of the fee died between sunset and midnight of that day, the heir and not the executor would be entitled to the rent. 1 Saund. 287; 10 Co. 127 b; 2 Madd. Ch. R. 268; 1 P. Wms. 177; S. C. 1 Salk, 578. See generally, Bac. Ab. h. t.; Bouv. Inst. Index h. t.; and Distress; Reentry.
RENT-ROLL. A roll of the rents due to a particular person or public body. See Rental.
RENTAL. A roll or list of the rents of an estate containing the description of the lands let, the names of the tenants, and other particulars connected with such estate. This is the same as rent roll, from which it is said to be corrupted.
RENTE. In the French funds this word is nearly synonymous with our word annuity.
RENTE FONCIERE. This is a technical phrase used in Louisiana. It is a rent which issues out of land, and it is of its essence that it be perpetual, for if it be made but for a limited time, it is a lease. It may, however, be extinguished. Civ. Code of Lo. art. 2750, 2759; Poth. h. t. Vide Ground-rent.
RENTE VIAGERE, French law. This term, which is used in Louisiana, signifies an annuity for life. Civ. Code of Lo. art. 2764; Poth. Du Contract de Constitution de Rente, n. 215.
RENUNCIATION. The act of giving up a right.
2. It is a rule of law that any one may renounce a right which the law has established in his favor. To this maxim there are many limitations. A party may always renounce an acquired right; as, for example, to take lands by descent; but one cannot always give up a future right, before it has accrued, nor to the benefit conferred by law, although such advantage may be introduced only for the benefit of individuals.
3. For example, the power of making a will; the right of annulling a future contract, on the ground of fraud; and the right of pleading the act of limitations, cannot be renounced. The first, because the party must be left free to make a will or not; and the latter two, because the right has not yet accrued.
4. This term is usually employed to signify the abdication or giving up of one's country at the time of choosing another. The act of congress requires from a foreigner who applies to become naturalized a renunciation of all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, whereof such alien may, at the time, be a citizen or subject. See Citizen; Expatriation; Naturalization; To renounce.
REPAIRS. That work which is done to an estate to keep it in good order.
2. What a party is bound to do, when the law imposes upon him the duty to make necessary repairs, does not appear to be very accurately defined. Natural and unavoidable decay in the buildings must always be allowed for when there is no express covenant to the contrary; and it seems, the lessee will satisfy the obligation the law imposes on him, by delivering the premises at the expiration of his tenancy, in a habitable state. Questions in relation to repairs most frequently arise between the landlord and tenant.
3. When there is no express agreement between the parties, the tenant is always required to do the necessary repairs. Woodf. L. & T. 244: Arch. L. & T. 188. He is therefore bound to put in windows or doors that have been broken by him, so as to prevent any decay of the premises, but he is not required to put a new room on an old worn out house. 2 Esp. N. P. C. 590.
4. An express covenant on the part of the lessee to keep a house in repair, and leave it in as good a plight as it was when the lease was made, does not bind him to repair the ordinary and natural decay. Woodf. L. & T. 256. And it has been held that such a covenant does not bind him to rebuild a house which had been destroyed by a public enemy. 1 Dall. 210.
5. As to the time when the repairs are to be made, it would seem reasonable that when the lessor is bound to make them he should have the right to enter and make them, when a delay until after the expiration of the lease would be injurious to the estate: but when no such damage exists, the landlord should have no right to enter without the consent of the tenant. See 18 Toull. n. 297. When a house has been destroyed by accidental fire, neither the tenant nor the landlord is bound to rebuild unless obliged by some agreement so to do. 4 Paige R. 355; 1 T. R. 708; Fonbl. Eq. B. 1, c. 6, s. S. Vide 6 T. R. 650; 4 Camp. R. 275; Harr. Dig. Covenant VII. Vide Com. Rep. 627; 6 T. R. 650; 21 Show. 401; 3. Ves. Jr. 34; Co. Litt., 27 a, note 1; 3 John. R. 44; 6 Mass. R. 63; Platt on Cov. 266; Com. L. & T. 200; Com. Dig. Condition, L 12; Civil Code of Louis. 2070; 1 Saund. 322, n. 1; Id. 323, n. 7; 2 Saund, 158 b, n. 7 & 10; Bouv. Inst. Index. h. t.
REPARATION. The redress of an injury; amends for a tort inflicted. Vide Remedy; Redress.
REPARTIONE, FACIENDA, WRIT DE. The name of an ancient writ which lies by one or more joint tenants against the other joint tenants, or by a person owning a house or building against the owner of th; adjoining building, to compel the reparation of such, joint property. F. N. B. 295.
REPEAL, legislation. The abrogation or destruction of a law by a legislative act.
2. A repeal is express; as when it is literally declared by a subsequent law or implied, when the new law contains provisions contrary to or irreconcilable with those of the former law.
3. A law may be repealed by implication, by an affirmative as well as by a negative statute, if the substance is inconsistent with the old statute. 1 Ham. 10: 2 Bibb, 96; Harper, 101; 4 W. C. C. R. 691.
4. It is a general rule that when a penal statute punishes an offence by a certain penalty, and a new statute is passed imposing a greater or a lesser penalty, for the same offence, the former statute is repealed by implication. 5 Pick. 168; 3 Halst. 48; 1 Stew. 506; 3 A. K. Marsh. 70; 21 Pick. 373. See 1 Binn. 601; Bac. Ab. Statute D 7 Mass. 140.
5. By the common law when a statute repeals another, and afterwards the repealing statute is itself repealed, the first is revived. 2 Blackf. 32. In some states this rule has been changed, as in Ohio and Louisiana. Civ. Code of:Louis. art. 23.
6. When a law is repealed, it leaves all the civil rights of the parties acquired under the law unaffected. 3. L. R. 337; 4 L. R. 191; 2 South. 689; Breese, App. 29; 2 Stew. 160.
7. When a penal statute is repealed or so modified as to exempt a class from its operation, violations committed before the repeal are also exempted, unless specifically reserved, or unless there have been some private right divested by it. 2 Dana, 330; 4 Yeates, 392; 1 Stew. 347; 5 Rand. 657; 1 W. C. C. R. 84; 2 Virg. Cas. 382. Vide Abrogation; 18 Vin. Ab. 118.
REPERTORY. This word is nearly synonymous with inventory, and is so called because its contents are arranged in such order as to be easily found. Clef des Lois Rom. h . t.; Merl. Repertoire, h. t.
2. In the French law, this word is used to denote the inventory or minutes which notaries are required tomake of all contracts which take place before them. Dict. de Jur. h. t.
REPETITION, construction of wills. A repetition takes place when the same testator, by the same testamentary instrument, gives to the same legatee legacies of equal amount and of the same kind; in such case the latter is considered a repetition of the former, and the legatee is entitled to one only. For example, a testator gives to a legatee "ô30 a year during his life;" and in another part of the will he gives to the same legatee "an annuity of ô3O for his life payable quarterly," he is entitled to only one annuity of thirty pounds a year. 4 Ves. 79, 90; 1 Bro. C. C. 30, note.
REPETITION, civil law. The act by which a person demands and seeks to recover what he has paid by mistake, or delivered on a condition which has not been performed. Dig. 12, 4, 5. The name of an action which lies to recover the payment which has been made by mistake, when nothing was due.
2. Repetition is never admitted in relation to natural obligations which have been voluntarily acquitted, if the debtor had capacity to give his consent. 6 Toull. n. 386. The same rule obtains in our law. A person who has voluntarily acquitted a natural or even a moral obligation, cannot recover back the money by an action for money had and received, or any other form of action. D. & R. N. P. C. 254; 2 T. R. 763; 7 T. R. 269; 4 Ad. & Ell. 858; 1 P. & D. 253; 2 L. R. 431; Cowp. 290; 3 B. & P. 249, note; 2 East, R. 506; 3 Taunt. R. 311; 5 Taunt. R. 36; Yelv. 41, b, note; 3 Pick. R. 207; 13 John. It. 259.
3. In order to entitle the payer to recover back money paid by mistake it must have been paid by him to a person to whom he did not owe it, for otherwise he cannot recover it back, the creditor having in such case the just right to retain the money. Repetitio nulla est ab eo qui suum recepit.
4. How far money paid under a mistake of law is liable to repetition, has been discussed by civilians, and opinions on this subject are divided. 2 Poth. Ob. by Evans, 369, 408 to 487; 1 Story, Eq. Pl. §111, note 2.
REPETITION, Scotch law. The act of reading over a witness deposition, in order that he may adhere to it, or correct it at his choice. The same as Recolement, (q. v.) in the French law. 2 Benth. on Ev. B. 3, c. 12, p. 239.
REPLEADER, practice. When an immaterial issue has been formed, the court will order the parties to plead de novo, for the purpose of obtaining a better issue this is called a repleader.
2. In such case, they must begin to replead at the first fault. If the declaration, plea and replication be all bad, the parties must begin de novo, if the plea and replication be both bad and a repleader is awarded, it must be as to both; but if the declaration and plea be good, and the replication only bad, the parties replead from the replication only.
3. In order to elucidate this point, it may be proper to give an instance, where the court awarded a repleader for a fault in the plea, which is the most ordinary cause of a repleader. An action was brought against hushand and wife, for a wrong done by the wife alone, before the marriage, and both pleaded that they were not guilty of the wrong imputed to them, which was held to be bad, because there was no wrong alleged to have been committed by the hushand, and therefore a repleader was awarded, and the plea made that the wife only was not guilty. Cro. Jac. 5. See other instances in: Hob. 113: 5 Taunt. 386.
4. The following rules as to repleaders were laid down in the case of Staples v. Haydon, 2 Salk. 579. First. That at common law, a repleader was allowed before trial, because a verdict did not cure an immaterial issue, but now a repleader ought not to be allowed till after trial, in any case when the fault of the issue might be helped by the verdict, or by the statute of jeofails. Second. That if a repleader be allowed where it ought not to be granted, or vice versa, it is error. Third. That the judgment of repleader is general, quod partes replacitent, and the parties must begin at the first fault, which occasioned the immaterial issue. Fourth. No costs are allowed on either side. Fifth. That a repleader cannot be awarded after a default at nisi prius; to which may be added, that in general a repleader cannot be awarded after a demurrer or writ of error, without the consent of the parties, but only after issue joined; where however, there is a bad bar, and a bad replication, it is said that a repleader may be awarded upon a demurrer; a repleader will not be awarded where the court can give judgment on the whole record, and it is not grantable in favor of the person who made the first fault in pleading. See Com. Dig. Pleader, R 18; Bac. Abr. Pleas, M; 2 Saund. 319 b, n. 6; 2 Vent. 196; 2 Str. 847; 5 Taunt. 386; 8 Taunt. 413; 2 Saund. 20; 1 Chit. Pl. 632; Steph. pl. 119; Lawes, Civ. Pl. 175.
5. The difference between a repleader and a judgment non obstante veredicto, is this; that when a plea is good in form, though not in fact, or in other words, if it contain a defective title or ground of defence by which it is apparent to the court, upon the defendant's own showing, that in any way of putting it, he can have no merits, and the issue joined thereon be found for him there, as the awarding of a repleader could not mend the case, the court for the sake of the plaintiff will at once give judgment non obstante veredicto; but where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or defendant, there for their own sake they will award a repleader; a judgment, therefore, non obstante veredicto, is always upon the merits, and never granted but in a very clear case; a repleader is upon the form and manner of pleading. Tidd's Pr. 813, 814; Com. Dig. Pleader, R 18 Bac. Abr. Pleas, M; 18 Vin. Ab. 567; 2 Saund. 20; Doct. Plac. h. t.; Arch. Civ. Pl. 258; 1 Chit. Pl. 632; U. S. Dig. XII.
REPLEGIARE, To redeem a thing detained or taken by another, by putting in legal sureties. See Replevin.
REPLEVIN, remedies. The name of an action for the recovery of goods and chattels.
2. It will be proper to consider, 1. For what property this action will lie. 2. What interest the plaintiff must have in the same. 3. For what injury. 4. The pleadings. 5. The judgment.
3. - 1. To support replevin, the property affected must be a personal chattel, and not an injury to the freehold, or to any matter which is annexed to it; 4 T. R. 504; nor for anything which has been turned into a chattel by having been separated from it by the defendant, and carried away at one and the same time; 2 Watts, R. 126; 3 S. & R. 509 6 S. & R. 4761; 10 S. & R. 114; 6 Greenl. R. 427; nor for writings which concern the realty. 1 Brownl. 168.
4. The chattel also must possess indicia or ear-marks, by which it may be distinguished from all others of the same description; otherwise the plaintiff would be demanding of the law what it has not in its power to bestow; replevin for loose money cannot, therefore, be maintained; but it may be supported for money tied up in a bag, and taken in that state from the plaintiff. 2 Mod. R. 61. Vide 1 Dall. 157; 6 Binn. 2; 3 Serg. & Rawle, 562; 2 P. A. Browne's R. 160; Addis. R. 134; 10 Serg. & Rawle, 114; 4 Dall. Appx. i.; 2 Watt's R. 126; 2 Rawle's R. 423.
5. - 2. The plaintiff, at the time of the caption, must have been possessed, or, which amounts to the same thing, have had an absolute property in and be entitled to the possession of the chattel, or it could not have been taken from him. He must, in other words, have had a general property, or a special property, as the bailee of the goods. His right to the possession must also be continued down to the time of judgment pronounced, otherwise he has no claim to the restoration of the property. Co. Litt. 145, b. It has however, been doubted whether on a more naked tailment for safe keeping, the bailee can maintain replevin. 1 John. R. 380; 3 Serg. & Rawle, 20.
6. - 3. This action lies to recover any goods which have been illegally taken. 7 John R. 140; 5 Mass. R. 283; 14 John. R. 87; 1 Dall. R. 157; 6 Binn. R. 2; 3 Serg. & Rawle, 562; Addis. R. 134; 1 Mason, 319; 2 Fairf. 28. The primary object of this action, is to recover back the chattel itself, and damages for taking and detaining it are consequent on the recovery. 1 W. & S. 513; 20 Wend. 172; 3 Shepl. 20. When the properly has been restored this action cannot, therefore, be maintained. But the chattel is considered as detained, not-withstanding the defendant may have destroyed it before the suit was commenced; for he cannot take advantage of his own wrong.
7. - 4. This being a local action, the declaration requires certainty in the description of the place where the distress was taken. 2 Chit: Pl. 411, 412; 10 John. R. 53. But it has been held in Pennsylvania, that the declaration is sufficient, if the taking is laid to be in the county. 1 P. A. Browne's Rep. 60. The strictness which formerly prevailed on this subject, has been relaxed. 2 Saund. 74, b. When the distress has been taken for rent, the defendant usually avows or makes cognizance, in order to obtain a return of the goods to which avowry or cognizance the plaintiff pleads in bar, or the defendant may, in proper cases, plead non cepit, cepit in alio loco, guilty. 1 Chit. Pl. 490, 491.
8. - 5. As to the judgment, Vide article Judgment in Replevin. Vide, gen-erally, Bac. Ab. h. t.; 1 Saund. 347, n. 1; 2 Sell. Pr. 153; Doct. Pl. 414; Com. Dig. h. t.; Dane's Ab. h. t.; Petersd. Ab. h. t.; 18 Vin. Ab. 576; Yelv. 146, a; 1 Chit., Pl. 157; Ham. N. P. ch. 3, p. 372 to 498; Amer. Dig. h. t.; Harr. Dig. h. t.; Bouv. Inst. Index, h. t. As to the evidence required in replevin, see Roscoe's Civ. Ev. 353. Vide, also, article Detinuit.
REPLEVY. To re-deliver goods which have been distrained to the original possessor of them, on his giving pledges in all action of replevin. It signifies also the bailing or liberating a man from prison, on his finding bail to answer. See Replevin.
REPLIANT. One who makes a replication.
REPLICATION, pleading. The plaintiff's answer to the defendant's plea.
2. Replications will be considered, 1. With regard to their several kinds. 2. To their form. 3. To their qualities.
3. - §1. They are to pleas in abatement and to pleas in bar.
4. - 1. When the defendant pleads to the jurisdiction of the court, the plaintiff may reply, and in this case the replication commences with a statement that the writ ought not to be quashed, or that the court ought not to be ousted of their jurisdiction, because &c., and concludes to the country, if the replication merely deny the subject-matter of the plea. Rast. Entr. 101 Thomps. Entr. 2; Clift's Entr. 17; 1 Chit. Pl. 434. As a general rule, when the plea is to the misnomer of the plaintiff or defendant, or when the plea consists of matter of fact which the plaintiff denies, the replication may begin without any allegation that the writ or bill ought not to be quashed. 1 Bos. & Pull. 61.
5. - 2. The replication is, in general, governed by the plea, and most frequently denies it. When the plea concludes to the country, the plaintiff must, in general, reply by adding a similiter; but when the plea concludes with a verification, the replication must either, 1. Conclude the defendant by matter of estoppel; or, 2. May deny the truth of the matter alleged in the plea, either in whole or in part; or, 3. May confess and avoid the plea; or, 4. In the case of an evasive plea, may new assign the cause of action. For the several kinds of replication as they relate to the different forms of action, see 1 Chit. Pl. 551, et seq.; Arch. Civ. Pl. 258.
6. - §2. The form of the replication will be considered with regard to, 1. The title. 2. The commencement. 3. The body. 4. The conclusion.
7. - 1. The replication is usually entitled in the court and of the term of which it is pleaded, and the names of the plaintiff and defendant are stated in the margin, thus "A B against C D." 2 Chit. Pl. 641.
8. - 2. The commencement is that part of the replication which immediately follows the statement of the title of the court and term, and the names of the parties. It varies in form when it replies to matter of estoppel from what it does when it denies, or confesses and avoids the plea; in the latter case it commences with an allegation technically termed the preclude non. (q. v.) It generally commences with the words, "And the said plaintiff saith that the said defendant," &c. 1 Chit. Pl. 573.
9. - 3. The body of the replication ought to contain either. 1. Matter of estoppel. 2. Denial of the plea. 3. A confession and avoidance of it; or, 4. In case of an evasive plea, a new assignment. 1st. When the matter of estoppel does not appear from the anterior pleading, the replication should set it forth; as, if the matter has been tried upon a particular issue in trespass, and found by the jury, such finding may be replied as an estoppel. 3 East, R. 346; vide 4 Mass. R. 443. 2d. The second kind of replication is that which denies or traverses the truth of the plea, either in part or in whole. Vide Traverse, and 1 Chit. Pl. 576, note a. 3d. The third kind of replication admits, either in words or in effect, the fact alleged in the plea, and avoids the effect of it by stating new matter. If, for example, infancy be pleaded, the plaintiff may reply that the goods were necessaries, or that the defen-dant, after he came of full age, ratified and confirmed the promise. Vide Confession and Avoidance. 4th. When the plea is such as merely to evade the allegation in the declaration, the plaintiff in his replication may reassign it. Vide New Assignment, and 1 Chit. Pl. 601.
10. - 4. With regard to the conclusion, it is a general rule, that when the replication denies the whole of the defendant's plea, containing matter of fact, it should conclude to the country. There are other conclusions in particular cases, which the reader will find fully stated in 1 Chit. Pl. 615, et seq.; Com. Dig. Pleader, F 5 vide 1 Saund. 103, n.; 2 Caines' R. 60 2 John. R. 428; 1 John. R. 516; Arcb. Civ. Pl. 258; 19 Vin. Ab 29; Bac. Ab. Trespass, I 4; Doct. Pl. 428; Beames' Pl. in Eq. 247, 325, 326.
11. - §3. The qualities of a replication are, 1. That it must answer so much of the defendant's plea as it professes to answer, and that if it be bad in part, it is bad for the whole. Com. Dig. Pleader, F 4, W 2; 1 Saund. 338; 7 Cranch's Rep. 156. 2. It must not depart from the allegations in the declaration in any material matter. Vide Departure, and 2 Saund . 84 a, note 1; Co. Lit. 304 a. See also 3 John. Rep. 367; 10 John. R. 259; 14 John., R. 132; 2 Caines' R. 320. 3. It must be certain. Vide Certainty. 4. It must be single. Vide U. S. Dig. Pleading, XI.; Bouv. Inst. Index, h. t.; Duplicity; Pleadings.
REPORT, legislation. A statement made by a committee to a legislative assembly, of facts of which they were charged to inquire.
REPORT, practice. A certificate to the court made by a master in chancery, commissioner or other person appointed by the court, of the facts or matters to be ascertained by him, or of something of which it is his duty to inform the court.
2. If the parties in the case accede to the report, find no exceptions are filed, it is in due time confirmed; if exceptions are filed to the report, they will, agreeably to the rules of the court, be heard, and the report will either be confirmed, set aside, or referred. back for the correction of some error. 2 Madd. Ch. 505; Blake's Ch. Pr. 230; Vin. Ab. h. t.
REPORTER. A person employed in making out and publishing the history of cases decided by the court.
2. The act of congress of August 26, 1842, sect., 2, enacts, that in the supreme court of the United States, one reporter shall be appointed by the court with the salary of twelve hundred and fifty dollars; provided that he deliver to the secretary of state for distribution, one hundred and fifty copies of each volume of reports that he shall hereafter prepare and publish, immediately after the publication thereof, which publication shall be made annually within four months after the adjournment of the court at which the decisions are made.
3. In some of the states the reporters are appointed by authority of law; in others, they are volunteers.
REPORTS. Law books, containing a statement of the facts and law of each case which has been decided by the courts; they are generally the most certain proof of the judicial decisions of the courts, and contain the most satisfactory evidence, and the most authoritative and precise application of the rules of the common law. Lit. s. 514; Co. Lit. 293 a; 4 Co. Pref.; 1 Bl. Com. 71 Ram. on Judgm. ch. 13.
2. The number of reports has increased to an inconvenient extent, and should they multiply in the same ratio which of late they have done, they will so soon crowd our libraries as to become a serious evil. The indiscriminate re-port of cases of every description is deserving of censure. Cases where first principles are declared to be the law, are reported with as much care as those where the most abstruse questions are decided. But this is not all; sometimes two reporters, with the true spirit of book-making, report the same set of cases, and thereby not only unnecessarily increase the lawyer's already encumbered library, but create confusion by the discrepancies which occasionally appear in the report of the same case.
3. The modern reports are too often very diffuse and inaccurate. They seem too frequently made up for the purpose of profit and sale, much of the matter they contain being either useless or a mere repetition, while they are deficient in stating what is really important.
4. A report ought to contain, 1. The name of the case. 2. The court in which it originated; and, when it has been taken to another by appeal, certiorari, or writ of error, it ought to mention by whom it was so taken, and by what proceeding. 3. The state of the facts, including the pleadings, as far as requisite. 4. The true point before the court. 5. The manner in which that point has been determined, and by whom. 6. The date.
5. The following is believed to be a correct list of the American and English Reports; the former arranged under the heads of the respective states; and the latter in chronological order. It is hoped this list will be useful to the student.
AMERICAN REPORTS.
UNITED STATES.
1. Supreme Court.
Dallas' Reports. From August term, 1790, to August term, 1800. 4 vols. Cranch's Reports. From 1800 to February term, 1815. 9 vols. Wheaton's Reports. From February term, 181 to January term, 1827, inclusive. 12 vols.
Peters' Reports. 16 vols. Peters' Condensed Reports of Supreme Court of the United States. These volumes contain condensed reports of all the cases in second, third, and fourth Dallas, the nine volumes of Cranch, and the twelve volumes of Wheaton.
Howard's Reports. From 1843 to 1852. 11 vols.
2. Circuit Courts - First Circuit
Gallison's Reports. From 1812 to 1815, inclusive. 2 vols.
Mason's Reports. From 1816 to 1830, inclusive. 5 vols.
Sumner's Reports. From 1830 t. 1837. 2 vol.
Story's Reports. From 1839 to l845. 3 vols.
Woodbury and Minot's Reports. From 1845 to 1847. 2 vols.
Second Circuit
.
Paine's Reports. From 1810 to 1826. 1 vol.
Third Circuit.
Dallas' Reports. The second, third and fourth volumes contain cases decided in
this court. From Washington's C. C. Reports. From 1803 to 1827. 4 vols.
Peters' C. C. Reports. From 1803 to 1818. 1 vol.
Baldwin's Reports. From Oct. term, 1829, to April term 1833 inclusive. 1 vol.
Wallace's Reports. Include the cases of May Sessions, 1801. 1 vol.
Wallace, Jr's. Reports. 1 vol.
Fourth Circuit.
Marshall's Decisions. From 1802 to 1832, published since the death of Chief Justice Marshall, from his manuscripts, by John M. Brockenbrough. 2 vols.
Seventh Circuit.
McLean's Reports. From 182 9 to 1845. 3 vols,
3. District Courts - Distnct of New York.
Van Ness' Reports. I vol.
District of Pennsylvania
.
Peters' Admiralty Decisions. From 1792 to 1807. 2 vols.
Eastern District of Pennsylvania
.
Gilpin's Reports. From Nov. term, 1828, to Feb. term, 1836, inclusive. 1 vol.
District of South Carolina
.
Bee's Admiralty Reports. From 1792 to 1805. 1 vol.
District of Maine.
Reports of cases argued and determined in the District Court of the United States, for the District of Maine, from 1822 to 1839. 1 vol. Cited Ware's Reports.
STATE REPORTS.
Alabama.
Alabama Reports. By Henry Minor. From 1820 to 1826. 1 vol.
Stewart's Reports. From 1827 to 1831. 3 vols.
Stewart & Porter's Reports. From 1831 to 1833. 5 vols.
Porter's Reports. From 1834 to 1839. 9 vols.
Alabama Reports. From 1840 to 1849. 14 vols.
Arkansas.
Pike's Reports. From 1837 to 1842. 5 vols.
Connecticut.
Kirby's Reports,. From 1785 to 1788. 1 vol.
Root's Reports. From 1799 to 1798. 2 vols.
Day's Reports, From 1802 to 1813. 5 vols.
Connecticut Reports. By Thomas Day. From June, 1814 to 1847. 18 vols.
Delaware.
Harrington's Reports. From 1832 to 1847. 4 vols.
Florida.
Florida Reports. From 1846 to 1847. 2 vols.
Georgia.
T. U. P. Chariton's Reports. A Cases decided previous to 1810. 1 vol.
Dudley's Reports. From 1831 to 1833. 1 vol.
R. M. Charlton's Reports. From 1811 to 1837. 1 vol.
Kelly's Reports, 3 vols.
Georgia Reports. From 1846 to 1849. 6 vols.
Illinois.
Breese's Reports. From 1819 to 1830. 1 vol.
Scammond's Reports. From 1832 to 1843. 4 vols.
Gilman's Reports. From 1844 to 1847. 4 vols.
Indiana.
Blackford's Reports. From May, 1817, to May, 1838, inclusive, 7 vols.
Iowa.
Green's Reports. 1 vol.
Kentucky
Hughes' Reports. From 1785 to 1801. 1 vol.
Kentucky Decisions. From 1801 to 1806. 1 vol.
Hardin's Reports. Fr@m 1805 to 1806. 1 vol.
Bibb's Reports. From 1808 to 1817. 4 vols.
A. K. Marshall's Reports. From 1817 to 1821 3 vols.
Littells Reports. From 1822 to 1824. 6 vols.
Littells Select Cases. From 1795 to 1821. 1 vol.
Munro's Reports. From 1824 to 1828. 7 vols
J. S. Marshall's Reports. From 1829 to 1832 7 vols.
Dana's Reports. From 1833 to 1840. 9 vols.
B. Monroe's Reports. From 1840 to 1848. 8 vols.
Louisiana.
Orleans Term Reports. By Martin. From 1809 to 1812. 2 vols in 1. Louisiana Term Reports. By Martin, From 1812 to 1823. 10 vols. Martin's Reports, N. S. (sometimes cited simply New Series,) 1823 to 1830. 8 vols. The whole of Martin's Reports amount to twenty volumes; the first twelve, namely, the Orleans and the Louisiana Term Reports, are cited as Martin's Reports; from the twelfth, they are sometimes cited as first, second, &c., Martin's New Series, and sometimes simply New Series. Louisiana Reports. 19 vols. The first five volumes, from 1830 to August term, 1834, and the first part of the sixth volume, are the work of Branch W. Miller. The remainder were reported by Mr. Currey, and are continued to June term, 1839. The whole of the 19 volumes are cited Louisiana Reports. Robinson's Reports. From 1841 to 1843. 12 vols.
Maine.
By a resolve of the legislature, passed in 1836, each volume subsequent to the third volume of Fairfield's Reports, shall be entitled and lettered upon the back thereof, "Maine Reports;" and the first volume subsequent to the third volume of Fairfield's shall be numbered the thirteenth Volume of Maine Reports. Maine Reports. 26 vols. These reports consist of Greenleaf's Reports. From 1820 to 1832. The first 9 vols.
Fairfield's Reports. From 1833 to 1835. The 10th, 11th, and 12th vols.
Shepley's Reports. From 1836 to 18401. The 13th to 18th vols., inclusive. 6
vols.
Appleton's Reports. The 19th vol. 2 vols.
Appleton, part of vol. 20.
Shepley's Reports, part of vol. 20 and vol. 21 to 28, inclusive. From 1841 to
1846. 8 vols.
Maryland.
Harris & McHenry's Reports. From 1709 to 1799. 4 vols. Sometimes cited
Maryland Reports.
Harris & Johnson. From 1800 to 1826. 7 vols.
Harris & Gill. From 1826 to 1829. 2 vols.
Gill & Johnson. From 1829 to 1840. 12 vols.
Bland's Chancery Reports. From 1811 to 1832. 3 vols.
Gill's Reports. From 1813 to 1849. 5 vols.
Massachusetts.
Massachusetts Reports. The first volume is reported by Ephraim Williams. His reports commenced with September term, 1804, in Berkshire, and terminate with June term, 1805, in Hancock. The 16 volumes from the second to the seventeenth, inclusive, are reported by Dudley Alkins Tyng, and embrace from March term, 1806, in Suffolk, to March term, 1822, in Suffolk. The reports of Williams and Tyng are cited Massachusetts Reparts. Pickering's Reports. From 1832 to March 1840. 24 vols. Metcalf's Reports. From 1840 to 1848. 1 vols.
Michigan.
Harrington's Reports. 1 vol.
Walker's Chancery Cases. From 1842 to 1845. 1 vol.
Douglass' Reports. From 1843 to 1847. 2 vols.
Mississippi.
Walker's Reports. From 1818 to 1832. 1 vol.
Howard's Reports. From 1834 to 1843. 7 vols.
Smedes & Marshall's Reports. From 1843 to 1849. 12 vols.
Freeman's Chancery Reports. From 1839 to 1843. 1 vol.
Smedes & Marshall's Chancery Reports. From 1840 to 1843. 1 vol.
Missouri.
Missouri Reports. From 1821 to 1846. 9 vols.
New Hampshire.
New Hampshire Reports. From 1816 to 1842. 13 vols.
Nathaniel Adams reported cases from 1816 to 1819, which makes the first
volume of N. H. Rep. Levi Woodbury and William Richardson reported the
cases from 1819, to 1823; and William Richardson from 1823 to 1832, making
the third fourth and fifth volumes of N. H. Rep. They are continued under
the direction of the supreme court, and already make thirteen volumes.
New Jersey.
Coxes' Reports. From 1790 to 1795. 1 vol.
Pennington's Reports. From 1806 to 1813. 2 vols.
Southard's Reports. From 1816 to 1820. 2 vols.
Halstead's Reports. From 1821 to 1831. 7 vols.
Green's Reports. From 183@ to 1836. 3 vols.
Harrison's Reports. From 1837 to 1842. 4 vols.
Sexton's Chancery Reports. From 1830 to 1832. 1 vol.
Green's Chancery Reports, 1838 to 1846. 3 vols.
Spencer's Reports. From 1842 to 1845. 1 vol.
Halsted's Chancery Reports. From 1845 to 1846. 1 vol.
New York.
Coleman & Caine's Cases. From 1794 to 1805. 1 vol.
Caine's Reports. From 180,3 to 1805. 3 vols.
Caine's Cases. For 1804 and 1805. 2 vols.
Anthon's Nisi Prias Cases. From 1808 to 1818. 1 vol.
Roger's New York City Hall Recorder. From 1816 to 1821. 6 vols.
Wheeler's Criminal Cases. 3 vols.
Hall's Reports. For 1828 and 1829. 2 vols.
Hoffman's Vice Chancery Reports. From 1839 to 1840. 1 vol.
Edwards' Vice Chancery Reports. From 1831 to 1842. 3 vols.
Clarke's Vice Chancery Reports. From 1839 to 1841., 1 vol.
Johnson's Cases. From 1799 to 1803. 3 vols.
Johnson's Repoets. From 1806 to 1823. 20 vols.
Cowen's Reports. From 1823 to 1828. 9 vols,
Wendell's Reporti. From 1828 to 1841. 26 vols.
Hill's Reports from 1841 to 1845. 7 vols.
John ns &a cery Reparts. From 1814 to 1823. 7 vols.
Howard's Practice Reports. For 1844 and 1845. 3 vols.
Denio's Reports. From 1845 to 1847. 5 vols.
Hopkin's Chancery Reports. From 1823 to 1826. 1 vol.
Paige's Chancery Reports. From 1828 to 1845. 11 vols.
Sandford's Vice Chancery Reports. From 1843 to 1846. 3 vols.
Barbour's Chancery Reports. From 1845 to 1849. 3 vols.
Barbour's Superior Court. For 1847 and 1848. 4 vols.
Sandford's Superior Court. For 1847 and 1848. 1 vol.
Lockwood's Reversed Cases. From 1799 to 1847. 1 vol.
Comstock's Supreme Court. For 1847 and 1848. 1 vol.
North Carolina
Martin's Reports. 1 vol.
Heywood's Reports. From 1789 to 1806. 2 vols.
Taylor's Reports. From 1789 to 1802. 1 vol.
North Carolina Term Reports, (sometimes bound and lettered are cited as the
third Law Repository.) It is a second volume of Reports by John Louis
Taylor; it contains cases from 1816 to 1818. 1 vol.
Conference Reports. By Cameron & Norwood. From 1800 to 1804. 1 vol.
Murphy's Reports. From 1804 to 1819. 3 vols.
Carolina Law Repository. From 1813 to 1816. 2 vols.
Hawks' Reports. From 1820 to 1826. 4 vols.
Ruin's Reports, (bound with Hawks' Reports.)
Devereux's Reports. From 1826 to 1834. 4 vols.
Devereux's Equity Reports. From 1826 to 1834. 2 vols.
Devereux & Battle's Reports. From 1834 to 1840. 4 vols.
Deveretlx & Battle's Equity Reports. From 1834 to 1840. 2 vols.
Iredell's Reports, Law. From 1840 to 1849. 9 vols.
Iredell's Reports, Chancery. From 1840 to 1848, 5 vols.
Ohio.
Ohio Reports. 15 vols.
These reports are composed of Hammond's Reports. From 1821 to 1839. 9 vols.
Wright's Reports. From 1831 to 1834. 1 vol.
Wilcox's Reports. From 1840 to 1841. 1 vol.
Stanton's Reports. From 1841 to 1843. 3 vols.
Griswold's Reports. From 1844 to 1846. 2 vols.
Pennsylvania.
Dallas' Reports. From 1754 to 1806. 4 vols. Vide Supra.
Yeates' Reports. From 1791 to 1808. 4 vols.
Binney's Reports. From 1799 to 1814. 6 vols
Sergeant & Rawle's Reports. From 1818 to 1829. 17 vols
Rawle's Reports. trom 1828 to 1835. 5 vols.
Wharton's Reports. From 1835 to 1841. 6 vols.
Pennsylvania Reports, reported by William Rawle, Charles B. Penrose, and
Frederick Watts. From 1829 to 1832. 3 vols.
Watts' Reports. From 1832 to 1840. 10 vols.
Watts & Sergeant's Reports. 9 vols.
Browne's Reports. From 1806 to 1814. 2 vols.
Miles' Reports. For 1835 and 1841. 2 vols.
Addison's Reports. From 1791 to 1799. 1 vol.
Ashmead's Reports. From 1808 to 1841. 2 vols.
Pennsylvania State Reports. By Robert M.
Barr. From 1844 to 1849. 10 vols. 1849 to 1850. 2 vol. By J. Pringle Jones.
1830 to 1852. 4 vols. By Geo. W. Harris.
South Carolina.
Bay's Reports. From 1783 to 1804. 2 vols.
Dessaussure's Equity Reports. From the Revolution to 1813. 4 vols.
Brevard's Reports. From 1793 to 1816. 3 vols.
South Carolina Reports. From 1812 to 1816. 2 vols.
Nott & M'Cord's Reports. From 1817 to 1820. 2 vols.
Mills' Constitutional Reports, N. S. For 1817 and 1818. 2 vols.
Harper's Reports. For 1823 and 1824. 1 vol.
Harper's Equity Reports. For 1824. 1 vol.
M'Cord's Reports. From 1820 to 1829. 4 vols.
M'Cord's Chancery Reports. From 1825 to 1827. 2 vols.
Bailey's Reports. From 1828 to 1832. 2 vols.
Bailey's Cbancery. From 1830 to 1831. 1 vol.
Hill's Reports. From 1833 to 1837. 3 vols.
Hill's Chancery Reports. For 1838. 2 vols.
Riley's Chancery Cases. From 1836 to 1887. 1 vol
Riley's Law Cases. From 1836 to 1837. 1 vol.
Dudley's Law Reports. From 1837 to 1838 1 vol.
Dudley's Equity Reports. From 1837 to 1838 1 vol.
Rice's Reports. Frlom 1838 to 1839. 1 vol.
Rice's Chancery Reports. From 1838 to 1839. 1 vol.
Cheves' Reports. From 1839 to 1840. 2 vols.
McMullan's Chancery. From 1840 to 1842. 1 vol.
McMullen's Law. FTOM 1835 to 1842. 2 vols.
Spear's Equity. From 1842 to 1844. 1 vol.
Spear's Law. For 1843. 2 vols.
Richardson's Law Reports. From 1844 to 1847. 3 vols.
Richardson's Equity Reports. From 1844 to 1846. 2 vols.
Strobhart's Law Reports. From 1846 to 1848. 3 vols.
Strobhart's Equity Reports. From 1846 to 1848. 2 vols.
Statutes at Large, For 1838. 9 vols.
Tennessee.
Tennessee Reports. From 179i to 1815. 2 vols. These cases were reported by
John Overton. They are cited Tenn. Rep. Cooke's Reports. From 1811 to 1814.
1 vol.
Heywood's Reports. From 1816 to 1818. 3 vols. These volumes are numbered
three, four, and five, in a series with Judge Heywood's North
Carolina Reports, volumes one and two.
Peck's Reports. From 1822 to 1824. 1 vol.
Martin & Yerger's Reports. From 1825 to 1828. 1 vol.
Yerger's Reports. From 1832 to 1837. 10 vols.
Meigs' Reports. From 1838 to 1839. 1 vol.
Humphrey's Reports. From 1839 to 1846. 8 vols.
Vermont.
N. Chipman's Reports. From 1789 to 1791. 1 vol.
Tyler's Reports. From 1801 to 1803. 2 vols
Brayton's Reports. From 1815 to 1819. 1 vol.
D. Chipman's Reports. Containing Select Cases from N. Chipman's Reports,
and cages down to 1825. 2 vols.
Aiken's Reports. For 1826 and 1827. 2 vols.
Vermont Reports. From 1826 to 1846. 18 vols. These reports are composed of
Judges Reports, the first 9 vols.
Shaw's Reports. The 10th and part of the 11th vol.
Watson's Reports. Part of 11th, the whole of 12th, 13th, and 14th vols.
Slade's Reports. The 15th vol.
Washburne's Reports. The 16th, 17th, and 18th vols.
Virginia.
Wythe's Chancery Reports. From 1790 to 1795. 1 vol.
Washington's Reports. From 1790 to 1796. 2 vols.
Call's Reports. From 1790 to 1818. 6 vols.
Henning and Mumford's Reports. From 1806 to 1809. 4 vols.
Mumford's Reports. From 1810 to 1820. 6 vols. I
Gilmer's Reports, (sometimes cited Virginia Reports.) During 1820 and 1821.
1 vol.
Randolph's Reports. From 1821 to 1828. 6 vols.
Leigh's Reports. From 1829 to 1841. 12 vols.
Jefferson's Reports. From 1730 to 1772. 1 vol.
Virginia cases. From 1789 to 1826. 2 vols.
The first of these volumes is by Judges Brockenbrough and Holmes, and
contains cases decided from 1789 to 1814; the second volume is by Judge
Brockenbrough, and contains cases decided from 1815 to 1826.
Robinson's Reports. From 1842 to 1844. 2 vols.
Grattan's Reports. From 1844 to 1848. 5 vols.
Wisconsin.
Burritt's Reports. 1 Vol.
ENGLISH AND IRISH REPORTS.
6. The following is a chronological list of English and Irirh contemporary Reports, alphabetically arranged under each reign.
Henry III. Oct. 19, 1216. Nov. 16, 1272.Jenkins, Ex., 4, 19, 21.
Edward I. Nov. 16, 1272. July 7, 1307. Jenkins, Ex., 18, 34. Keilwey, K. B. and C. P., 6. Year Book, K. B., C. P. and Exchequer, part 1.
Edward II. July 7, 1307. Jan. 25, 1327. Jenkins, Ex., 5, 15, 18. Year Book, K. B., C. P;, and Ex., part I.
Edward III. Jan. 25, 1327., June 21, 1377. Benloe, K. B. and C. P., 32. Jenkins, Ex., I to 47. Keilwey, K. B. and C. P. 1 to 47. Year Book' K. B. and C. P., part 2-1 to 10. Year Book: K. B. and C. P., P.,t 3-17, 18, 21 to 28, 38, 89. Year Book, K. B. and C. P., part 4-40 to 50. Year Book, part 5, Liber Assisarum, 1 to 51.
Richard II. June 21, 1377. Sept. 29, 1399. Bellewe, K. B. and C. P., 1 to 22. Jenkins, Ex., I to 22.
Henry IV. Sept. 29, 1399. Mar. 20, 1413. Jenkins, Ex., 1 to 14. Year Book, K. B. and C. P., part 6, 1 to 14.
Henry V. Mar. 20, 1413. Aug. 31, 1422. Jenkins, Ex., 1 to 10. Year Book, K. B. and C. P., part 6 - 1, 2, 5, 7 to 10.
Henry VI. Aug. 31, 1422. Mar. 4, 1461. Benloe, K. B. and C. P., 2, 18. Jenkins, Ex., I to 39. Year Book, K. B. and C. P., parts 7 and 8 - 4, 7 to 12, 14, 18 to 22, 27, 28, 30 to 39.
Edward IV. Mar. 4, 1461. April 9, 1483. Jenkins, Ex., 1 to 21. Year Book, K. B. and C. P., part 9 - 1 to 22. Year Book, K. B., C. P., and Ex., part 10-5.
Edward V. April 9, 1483. June 22, 1483. Jenkins, Ex. Year Book, X. B. and C. P., part 11.
Richard III. June 22, 1483., Aug. 22, 1485. Jenkins, Ex., 1, 2. 1 Year Book, K. B. and C. P., part 11 - 1, 2.
Henry VII. Aug. 22, 1485. April 22, 1509. Benloe, K. B. and C. P. 1. Jenkins, Ex., 1 to 21. Keilwey, K. B. and C. P.; 12, 13, 17 to 24. Moore, K. B. and C. P., Ex. and Chan., 1 to 2 Year Book, K. B, and C. P., part 11 - 1 to 16, 20 to 24.
Henry VIII. April 22, 1509. Jan. 28, 1547. Anderson, C. P., 25, &c.;Benloe, C. P., 1 to 38. Benloe, (New), K. B., C. P., and Ex., 22, &c;Benloe, Keilwey and Ashe, K. B., C. P and Ex. Brooke's New Cases, K. B., C. P., and Exchequer. Dalison, C. P., 38. Dyer, K. B., C. P., Ex. and Chan. 4, &c.;Jenkins, Ex., 1 to 38. Keilwey, K. B. and C. P., 1 to 11, and 21. Moore, K. B., C. P., Ex. and Chan., 3. Year Book, K. B., and C. P., part 11-13, 14, 18, 19, 26, 27, 29 to 38.
Edward VI. Jan, 28, 1547. July 6, 1553. Anderson, C. P., 1 to 6. Benloe and Dalison, C. P., 2, Brooke's New Cases, K. B., C. P. and Ex. Benloe (New), K. B., C. P. and Ex. 1 to 6. Dyer, K. B., C. P.; Ex. and Chan. 1 to 6. Jenkins, Ex., 1 to 6. Moore, K. B., C. P., Ex. and Chan., 1 to 6. Plowden, K. B., C. P. and Exchequer, 4 to 6.
Mary. - July 6, 1553. Nov. 17, 1558. Anderson, C. P., 1 to 6. Benloe and Dalison, C P., 1 to 5. Benloe in Keilwey and Ashe, K. B., C. P. a Ex., 1 to 5. Benloe (New), K. B., C. P. and Ex., 1 to 5. Booke's New Cases, K. B., C. P., and Ex., 1 to 5. Cary, Chan., 5. Dyer, K. B., C. P., Ex. and Chan., 1 to 5. Dalison, in Keilwey and Ashe, C. P., 1, 4, 5. Jenkins, Ex., 1 to 5. Leonard, K. B., C. P., and Ex., 1 to 5. Owen, K. B. and C. P., 4, 5. Plowden, K. B., C. P. and Ex., I to 5.
Elizabeth. Nov. 17, 1558. Mar. 24, 1603. Anderson, C. P., 1 to 45. Benloe in Keilwey and Ashe, K. B., C. P., and Ex., 2 to 20. Benloe, K. B., C. P., and Ex., 1 to 17. Benloe, C. P., 1 to 21. Brownlow and Goldeshorough, C. P., 11 to 45. Cary, Chan., 1 to 45. Coke, K. B , C. P., Ex. and Chan., 14 to 45. Croke, K. B., and C. P., 24 to 45. Dalison, C. P., 1 to 16. Dalison in Keilwey and Ashe, C. P., 2 to 7. Dickens, Chan., a few cases. Dyer, K. B. and C. P., 1 to 23. Godbolt, K. B., &c., 17 to 45. Goldeshorough, K. B., &c., 28 to 31, 39 to 43. Hobart, K. B., &c., a few cases. Hutton, C. P., 26 to 38. Jenkins, Ex., I to 45. Leonard, K. B., C. P. and Ex., 1 to 45. Moore, K. B., C. P., Ex. and Chan. 1 to 45. Noy. K. B. and C. P., 1 to 45. Owen, K. B. and C. P., I to 45. Plowden, K. B., C. P. and Ex. Popham, K. B., C. P. and Chan., 34, 9 Savill e, C. P. and Ex., 22 to 36. Tothill, Chan., 1 to 45. YelveKton, K. B. 44, 45.
James I. Mar. 24, 1603. Mar. 27, 1625. Anderson, C. P., 1. Benloe, K. B., C. P., and Ex., 19 to 23. Bridgman, C. P , 12 to 19. Brownlow and Goldeshorough, C. P., 1 to 23. Bulstrode, K. B., 7 to 15. Cary, Chan. 1. Coke, K. B., C. P, Ex. and Chan., 1 to 13. Croke, K. B. and C. P. 1, 23. Davis, K. B., C. P. and Ex., 2 to 9. Glanville, election before committee of H. C., 21, 22. Godbolt, K. B., &c., 1 to 23. Hobert, K. B., &c., 1 to 23. Hutton, C. P., 10 to 23. Jenkins, Ex., 1 to 21. Jones (W.) K. B. and C. P., 18 to 33. Lane, Ex., 3 to 9. Leonard, K. B., C. P. and Ex., 1 to 12. Ley, K. B., C. P., Ex. and Court of Wards, 6 to 23. Moore, K. B., C. P., Ex. and Chan., 1 to 18. Noy, K. B. and C. P. 1 to 23. Owen, K. B. and C. P., 1 to 12. Palmer, K. B., 17 to 23. Popham, K. B., C. P., and Chan., 15 to 23. Reports in Chancery, 13. Rolle, K. B., 12 to22. Tothill, Chan., 1 to 23. Winch, C. P., 19 to 23. Yelverton, K. B., 1 to 10.
Charles I. - Mar. 27, 1625. Jan. 30, 1649. Aleyn, K. B., 22 to 24. Benloe, K. B., C. P. and Ex., 1 to 3. Bulstrode, K. B., 1 to 14. Clayton, Pleas of As. York, 7 to 24. Croke, K. B. and C. P., 1 to 16 Godbolt, K. B., &c., 1 to 13. Hetley, C. P., 3 to 7. Hutton, C. P.. 1 to 14. Jones, (W.) K. B. and C. P., 1 to 16. Latch, K. B., 1 to 3. Ley, K. B., C. P., Ex. and Court of Wards, 1 to 4. Littleton, C. P. and Ex., 2 to 7. March, K. B. and C. P., 15 to 18. Nelson, Chan., 1 to 24. Noy, K. B. and C. P., 1 to 24. Palmer, K. B. and C. P., 1 to 4. Popham, K.,B., C. P. and Chan., 1, 2. Reports in Chancery, 1 to 24. Style, K. B., 21 to 24. Tothill, Chan., I to 21.
Charles II. May 29, 1660. Feb. 6, 1685. Bridgman, C. P., 1 to 8. Carter, C. P., 16 to 27. Cases in Chancery, part 1-12 to 30. Cases in Chancery, part 2-26 to 37. Most of these cases in 2 C. C. are grossly misreported, said per Lord Loughborough,* 1 H. Bl. 332 Cayton, Pleas of As. York, 1, 2. Dickens, Chan., a few cases. Finch, Chan., 25 to 32. Freeman, K. B., C. P., Ex. and Chan., 22 to 37. Hardres, Ex., 7 to 21. Jones (Tho.) K. B. and C. P., 19 to 37 Krebi K. B., 13 to 30. Kelyng (Sir J.) Crown Cades and in K. B., 14 to 20. Levinz, X. B. and C. P., 12 to 37 Lutwyche, C. P., 34 to 37. Modern, K. B., C. P., Ex. and Chan., vols. 1, 2 - 1 to 29. Modern, K. B., C. P., Ex. and Cban., vol. 2 - 26 to 30. Modern, K. C., C. P., Ex. and Chan., vol. 3 - 34 to 37. Nelson, Chan., 1 to 37. Parker, Ex., 30. Pollexfen, K. B., C. P. and Chan., 22 to 37. Raymond, (T.) K. B., C. P. and Ex., 12 to 35. Reports in Chancery, 1 to 37. Saunders, k. B., 18 to 24. Select Cases in Chancery, 33. Shower, K. B., 30 to 37. Siderlin, K. Ii., C. P. and Ex., 9 to 22. Skinner, K. B., 33 to 37. Style, K. B., I to 7. Vaughan, C. P., 17 to 25. Ventris, K. B., C. P., Ex. and Chan., 20 to 37. Vernon, Chan., 32 to 37,
James II. Feb. 6, 1685. Feb. 13, 1689. Carthew, K. B., 2 to 4. N Cases in Chancery, part 2 - 1 to 3. Cases of Settlement, K. B., 2 to 4. Comberbach, K. B., 1 to 4. Comberbach is said, by Lord Thurlow, to be bad authority. 1 Bro. C. C. 97. Freeman, K. B., C. P., Ex. lind Chan., 1 to 4. Levinz, K. B. and C. P., 1, 2. Lutwyche, C. P. 1 to 4. N Modern, K B., C. P. and Chan. vol. 3 - 1 to 4. Parker, Ex., 3, 4. Reports in Chancery, 1 to 3. Shower, K. B., 1 to 4. Skinner, K. B., 1 to 4. Ventris, K. B., C. P., Ex. and Chan., 1 to 4. Vernon, Ch., 1 to 4.
William III. & Mary. Feb. 13, 1682. Mar. 8, 1702. Carthew, K. B., 1 to 12. Cases concerning Settlements, X. B., 1 to 14. Colles, Parliamentary Cases, 9 to 14. Comberbach, K. B., 1 to 10. Comyns, K. B., C. P., Ex. Chan. and before the Delegates, 7 to 14. Fortescue, K: B., C. P., Ex. and Chan., 7 to 14. Freeman, K B., C. P., I Ex. and Chan., 1 to 14. Kelyng, (Sir J.) Crown Canes, and in K. B., 8 to 13. Levinz, K. B. and C. P., 1 to 18. Lutwyche, C. P., I to 14. Modern, K. B,., C. P., Ex. and Chan., vol. 3 - 1, 2. Modern, K. B., C. P., Fx- and Chan., vol. 4 - 3 to 7. Modern, K. B., C. P., Ex- and Chan., vol. 5 - 5 to 11. Modern, K. B., C. 'P., Ex. and Chan., vol. 12 - 2 to 14. Parker, Ex., 4 to 13. Peere Williams, Chan. and K. B., 7 to 14. Precedents in Chancery, 1 to 4. Raymond, (Lord) K. B. and C. P., 4 to 14. Reports in Chancery, vol. 2-5. Reports temp. Holt, K. B., C. P.,Ex. and Chan., 1 to 14. Salkeld, K. B., C. P., Ex. and Chair., 1 to 14. Select Cases in Chancery, 5,,9. Shower, K. B., 1 to 6. Skinner, K. B , I to 9. Ventris, K. B., C. P., Ex. and Chan., 1, 2. Vernon, Chan., 1 to 14.
Anne. Mar. 8, 1702. dug. 1, 1714, Brown's Parliamentary Cases, 1 to 1.3. Banbury, Ex., 12, 13. Cases concerning Settlements, K. B., 1 to 13. Cases on Practice, C. P., 5 to 13. Colles, Parliamentary Cases, 1 to 8. Comyns, K. B., C. P., Ex. Chanc. and before the Delegates, 1 to 13. Dickens, Chan., a few cases. Fortesque, K. B., C. P., Ex. and Chan., 1 to 13. Freeman, K. J3., C. P., Ex. and Chan., 1 to 5. Gilbert's Cases in Law an Equity, 12, 13. Gilbert, K. B.,.Chan. and Ex., 4 to 43. Relyng, (Sir J.) Crown Cases, and in K. B. Lutwyche, C. P., 1, 2. Modern, K. B., C. P., Ex. and Chan., vol. 6 - 2, 3. Modern, K. B., C. P., Ex. and Chan., vol. 7 - 1. Modern, K. B., C. P., Ex. and Chan., vol. 10 - 8 to 13. Modern, K. B., C. P., Ex. and Chan., vol. 11 - 4 to 8. Parker, Ex., 6 to 12. Peere Williams, Chan. and K. B., 1 to 13. Practical Register, C. P.) 3 to 13. Precedents in Chancery, 1 to 13. Raymond, (Lord) K. B. and C. P., 1 to 13. Reports in Chancery, 4 to 8. Reports temp. Holt, 1 to 9. Robertson's App. Cases, 5 to 13. Salkeld, K.,B., C. P., Ex. and Chan., 1 to 10. Session Cases, K. B., 9 to 13 Vernon, Chan., 1 to 13.
George I. Aug. 1, 1714. June 11, 1727. Barnardiston, K. B., 12, 13. This book is said to be "not of much authority;" Dougl. 333, n.; "of still less authority than 10 Mod.;" Dougl. 669, n; "a bad reporter." 1, East, 642, n. Brown's Parliamentary Cases, 1 to 13. Bunbury, Ex., 1 to 13. Mr. Bunbury never meant that those cases should be published; they are very loose notes. 5 Burr. 2568. Cases concerning Settlements, K. B., 1 to 13. Cases of Practice, C. P., 1 to 13. Comyns, K. B., C. P., Ex. Chanc. and before the Delegates, 1 to 13. Dickens, Chan., 1 to 13. Fortescue, K.@ B., C. P., Ex. and Chan., 1 to 13. Gilbert, K. B., Chan. and Ex., 1 to 12. Modern, K. B., C. P., Ex.,and Chan., vols. 8 and 9 - 8 to 12. Modern, K. B., C. P.,. Ex., and Chan., vol. 10 - 1 to 11. Mosely' Chan., 12, 13. Parker, Ex., 4 to 13. Peere Williams, Chan. and K. B., 1 to 13. Practical Register, C. P., 1 to 13. Precedents in Chancery, 1 to 8. Raymond (Lord) K. B. and C. P., 1 and 10 to 13. Robertson's Appeal Cases, 1 to 13. Select Cases in Chan., 10 to 12. Sessions Cases, K. B., 1 to 13. Strange, K. B., C. P., Ex. and Chan., 2 to 13. Vernon, Chan. 1 to 5.
George II. June 11, 1727. Oct. 25, 1760. Ambler, Chap. and Ex. 11 to 34. Andrews, K. B., 11, 12. Atkyn's Chan., 9 to 27. Barnardiston, C. B., 1 to 7. Barnardiston, Chan., 13, 14. Barnes, C. P., 5 to 34. Belt's Supplement to Vesey, Chan., 20 to 28. Blackstone (Wm.) K. B. and C. P., 20 to 24, and 30 to 34. These reports are said not to be very accurate, per Lord Mansfield, Doug. 92, n. Brown's Parl. Cases, 1 to 34. Bunbury, Ex., 1 to 14. Burrow's K. B., 30 to 34. Burrow's Settlement Cases, K. B., 5 to 34. Cases of Settlement, K. B., 1 to 5. Cases of Practice, K. P., 1 to 20. Cases temp. Talbot, Chan. K. B., C. P., 7, 10. Comyns, Ex., Chan. and before the Delegates, 1 to 13. Cunningham, K. B., 7, 8. Dickens, Chan., 1 to 34. Mr. Dickens was a very attentive and diligent register; but his notes being rather loose, are not to be considered as of very high authority, per Lord Redesdale, 1 Sch. & Lef. 240. Vide also Sug. Vend. 146. Eden, Chan., 30 to 34. Fitzgibbon, K. B., C. P., Ex. and Chan., 1 to 5. Fortescue, 1 to 10. Foster, Crown Cases, 16 to 34. Kelynge, (W.) K. B.; C. P. and Chan., 1 to 8. Konyon, K. B., &c., 26 to 30., Leach, Crown Cases, 4 to 34. Lee, (Sir Geo.) Ecclesiastical, 25 to 32. Moseley, Chan., 1 to 3. Parker, Fx , 16 to 34. Peere Williams, Chan. and K. B., 1 to 8. Practical Register, C. P., I to 15. Raymond, (Lord) K. B. and C. P., 1 to 6. Reports temp. Hardwicke, K. B., 7, 10. Robertson's Appeal Cases, a few. Sayer, K. B., 25 to 29. Select Cases in Chancery, 6. Sessions Cases, K. B., 1 to 20. Strange, K. B., C. P., Ex. and Chan., 1 to 21. Vesey, (sen.) Chan., 20 to 28. Willes, C. P., Exch., Chan. and House of Lords. 11 to 32. Wilson, K. B., C. P., 16 to 34.
George III. Oct. 25, 1762. Jan. 29, 1820. Acton, Appeal Cases, 49, 50. Ambler, Chan. and Ex., 1 to 24. Anstruther, Ex., 32 to 37. Ball and Beatty, Irish Chan., 47 to 54. Barnewell and Alderson, K. B., 58 to 60. Blackstone, (Sir W.) K. B. and C.,P., 1 to 20. Blackstone, (H.) C. P. and Ex. Chamb., 28 to 36. Bligh, Appeal Cases, 59, 60. Bosanquet and Puller, C. P., and Exch. Chamb., to 47. Bott, Settlement Cases, 1 to 60. Broderip and Bingham, C. P., 59, 60. Brown, Chancery, 18 to 34. Brown, Parl. Cases, 1 to 40. Buck, Bankruptcy, 57 to 60. Burrow, K. B., 1 to 12. Burrow, Settlement Cases, K. B., 1 to 16. Caldecot, Settlement Cases, K. B., 17 to 26. Campbell, Nisi Prius, K. B., C. P., and Home Circuit, 48 to 56. Cases of Practice, K. B., 1 to 14. Chitty, K. B., 47 to 60. Cooper, Chan., 55. Corbet and Daniel, Election Cases. Cowper, K. B., 14 to 18. Cox, Chan., 23 to 36. Daniell, Ex., 57 to 60. Dickens, Chan., I to 38. Dodson, Admiralty, 51 to 57. Douglas, K. B., 19 to 25. Dow, H. of Lords, 53 to 58. Durnford and East, K. B., 26 to 40. East, K. B., 41 to 52. Edwards, Admiralty, 48, 49. Eden, Cban., 1 to 7. Espinasse, Nisi Prius, K. B., C. P. and Home Circuit, 33 to 47. Forrest, Ex., 41@ Fraser, Elec., H. Com. 32. Gow, Nisi Prius, C. P., 59, 60. Haggard, Consistory Court, 29 to 60. Holi, Nisi Prius, C. P. and North Circuit, 55 to 18. Jacob & Walker, Chan., 60. Kenyon, K. B., &c.;Leach's Crown Cases, 1 to 55. Lofft, K. B., C. P. and Chan., 12 to 14. Luders, Election Cases, 25 to 30. Mariott, Admiralty, 16 to 19. Marshall, C. P., 54 to 57. Maddock, Vice Chan., 55 to 60. Maule & Selwyn,, K. B., 53 to 57 Merivate, Chan., 57 to 58. Moore, C. P., 57 to 60. Nolan, K. B., 32 to 34. Parker, Ex., 1 to 7. Peake, Nisi Prius, K. B., 30 to 35. Peckwell, Election Cases, 45,46. Phillimore, Ecclesiastical, 49 to 60. Price, Ex., 54 to 60. Robinson, Admiralty, 39 to 48. Rose, Bankruptcy 50 to 56. Russell & Ryan, Crown Cases, 39, &c.;Schoales & Lefroy, Irish Chan., 42 to 44. Smith, K. B. and Chan., 44 to 46. Starkie, Nisi Prius, K. B., C. P. and North Cir., 5 to 60. Swanston, Chan., 58 to 60. Taunton, C. P., 48 to 58. Vesey, jun., Chan., 29 to 52. Vesey & Beames, dhan., 52 to 54. Wightwick, Ex., 50, 51. Wilson, K. B. and C. .P., 1 to 14. Wilson, Chan., 58 to 60. Wilson; Ex., 57.
George IV. Jan. 29, 1820, June 26, 1830. Addams, Eccl. 2 to 6. Barnwell & Alderson, K. B., 1 to 3. Barnewall & Cresswell, K. B., 3 to 10. Adolphus, K. B., 10, &c.;Batty, K. B., (Ireland) 5 & 6. Beitty, Chan., (do.) 7 & 8. Bingham, C. P., 3, &c.;Bligh, H. of Lords, 1, &c.;Bott, Settlement Cases, 1 to 7. Broderip & Bingham, C. P., 1 to 3. Carrington & Payne, N. P., 4, &c.;Chitty, K. B., 1 to 3. Cresswell, Insolvent, 7 to 9. Daniell, Exchequer. Danson & Lloyd, Mercantile Cases, 8, 9. Dowling & Ryland, 2 to 7. Fox & Smith, K. B., (Ireland) 3 to 5. Glyn & Jameson, Bankruptcy. Haggard, Eccles. 7 to 10. Hogan, Rolls, (rreland) 6 & 7. Hudson & Brooke, K. B., (Ireland) 7 to 11. Jacob & Walker, Chan., 1, 2. Jacob, Chan., 2, 3. Lloyd & Welshy, Mercantile Cases, 10, &c.;Maddock, Vice-Chan., I to 3. Manning & Ryland, K. B., 7 to 9. Molloy, Chan., (Ireland) 7 to 11. Moody & Malkin, N. P., 7, &c.;Moore, C. P., 1 to 7. Moore & Payne, C. P., 7, &c.;Phillimore, Eccles., 1, 2. Price, Exchequer, 1, &c.;Russell & Ryan, Cro. Cases, 1 to 3. Russell, Chan., 6 &c.;Russell & Mylne, 9, &c.;Ryan & Moody, N. P., 4 to 7. Ryan & Moody, Cro. Cases, 4 to 10. Simon & Stuart, Vice-Chan., 2 to 7. Simons, Vice-Chan., 7 &c.;Smith & Batty, K B., (Ireland) 4, & 5 Starke, N. P., 1 &c.;Turner, Chan., 3, &c.;Younge & Jervis, Ex., 7, &c.;Younge, Ex. Eq., 11, &C.
William IV. June 26, 1830. June 20, 1837. Adolphus & Ellis, K. B., 4 to Barnewell & Adolphus, X. B., 1 to 3. Bingham, C. P., 1 to Bligh, H. of Lords, 1 to Carrington & Payne' N. P., 1 to Clark & Finnelli, 2 to Cockburn & Rowe, 3. Crompton & Jervis, Exch., 1 & 2, Crompton & Meeson, Exch., 3 & 4, Crompton, Meeson & Roscoe, Ech., 4 to 6. Curteis, 5 to Deacon & Chitty, Bankruptcy, 2 to 5. Deacon, Bankruptcy, 6 to Dow & Clarke, H. of Lords, 1 to Dowling, Practice, Cases, 1 to Haggard, Ecclesiastical, 1 to Haggard, Admiralty, 1 to Hayes, Exch., (Ireland) 1 to 3. Knapp, Appeal Cases, 1 to Knapp & Ombler, Election Cases, 5 to Lloyd & Goold, Irish Chan., 5 to Manning & Ryland, K. B., 1 to Meeson & Welshy, 6. Montagu & Bligh, Bankruptcy, 2 & 3. Montagu & Ayrton, Bankruptch, 3 to Moody & Malkin, N. P., 1 to Moore & Payne, C. P., 1 to Moore & Scott, C. P., 1 to Mylne & Craig. Mylne & Keen, Chan., 3 to Neville & Manning, K. B., 3 Perry & Knapp, election Cases, 3 to 5. Russell & Mylne, Chan., 1 to 3. Scott, C. P., 5 tyo Simons, Vice-Chan. 1 to Tamlyn, Rolls, 1 to Tyrwhitt, Exch., 1 to Tyrwhitt & Granger. Wilson & Shaw. H. of Lords, 1 to Wilson & Courtenay, H. of Lords, 2 to Younge, Equity Exch., 1 to Younge & Collyer, Equity Exch., 4,to
Victoria. June 20, 1837. Adolphus & Ellis, K. B. Adolphus & Ellis, New Series. Alcock & Napier, K. B., (Ireland) Alcock's REgistry Cases. Armstrong & Mercartney, N. P. (Ireland) Baron & Austin, Election Cases. Baron & Arnold, Election Cases. Beavan, Rolls Court. Bells, Appeal Cases to H. of L., (Ireland) Bell, Murray, Young & Tennent, Session Cases, (Ireland) Brown, High Court of Justiciary, (Ireland.) Bingham, C. P., 1 to Bligh, House of Lords. Bligh, New Series. Carrington & Kirwan, N. P. Carrington & Marshman, N. P., C. P. and Exch. Carrington & Payne, N. P., Q. P., C. P. Exch. Carrow, Hammerton & Allen, Magistrates' Cases., Clark & Finnelly, H. of Lords. Collyer, Chancery. Connor & Lawson, Chancery, (Ireland.) Cooper, Chancery Practice Caset. Cooper tempore Brougham, Chancery. Craig & Phillips, Chancery. Crawford & Dix, Abridged Cases in all the Courts, (Ireland.) Crawford & Dix, Circuit Cases, (Ireland) Curtis, Ecclesiastical. Davison & Manning, Q. B. Deacon, Bankruptcy. Denison, Crown Cases, reserved. De Gex & Smales, Chancery. Dow & Clark, H. of L. Dowling & Lowndes, Points of Practice. Dowling, Practice Cases Dowling, New Series. Drury & Walsh, Chancery, (Ireland) Drury & Warren, Chancery, (Ireland) Dunlap, Bell, Murray, Sessions Cases, (Ireland) Dunlap, BeIl, Murray & Donaldson, Sessions cases, (Ireland.) Exchequer Reports, by Welshy, Hurstone & Gordon. Falconer & Fitzherbert, Election. Flanagan & Kelle, Rolls, (Ireland.) Gale & Davison, K. B. Haggard, Admiralty, Hare, Chancery. Jebb & Bourke, Q. B., (Ireland.) Jebb & Symes, K. B., (Ireland.) Jones & Latouche, Q. B., (Ireland.) Jones Exchequer, (Ireland.) Jones & Carey, Exchequer, (Ireland.) Keen, Rolls. Law Recorder, in all the Courts, (Ireland.) Longfield & Townsend, Exch., (Ireland.) McLean & Robinson, H. of L (Ireland.) Manning & Granger, C. P. Manning, Granger & Scott, C. P. Meeson & Welshy, Exch. Montagu & Ayrton, Bankruptcy. Montagu & Chitty, Bankruptcy. Montagu, Deacon & De Gex, Bankruptcy. Montagu & Neale, Election. Moody, N. P. and Crown Cases. Moodv & Robinson, Nisi Prius. Moore, Appeal Cases. Moore, East India Appeals. Moore, Privy Council. Mylne & Craig, Chancery. Neville & Perry, K. B. Perry & Davidson, K. B., Phillips, Chancery. Robinson, Admiralty. Robinson, House of Lords. Sausse & Scully, Rolls, (Ireland.) Scott, C. P. Scott, New Series. Shaw & Maclean, House of Lords. Smyth; C. P., (Ireland.) Simons, Vice-Chancellor. Welsh, Registry Cases, (Ireland.) West, Parl. Reports. Younge & Collyer, Equity Ex.
REPRESENTATIVE. One who represents or is in the place of another.
2. In legi4lation, it signifies one who has been elected a moraber of that branch of the legislature called the house of representatives.
3. A representative of a deceased person, sometimes called a "personal representative," or legal personal representative," is one who is executor or administrator of the person described. 6 Madd. 159; 5 yes. 402.
REPRESENTATIVE DEMOCRACY. A form of government where the powers of the sovereignty are delegated to a body of men, elected from time to time, who exercise them for the benefit of the whole nation. 1 Bouv. Inst. n. 31.
TO REPRESENT. To exhibit; to expose before the eyes: to represent a thing is to produce it publicly. Dig. 10, 4, 2, 3.
REPRESENTATION, insurances. A representation is a collateral statement, either by writing not inserted in the policy, or by parol, of such facts or circumstances relative to the proposed adventure, as are necessary to be communicated to the underwriters, to enable them to form a just estimate of the risk.
2. A representation, like a warranty, may be either affirmative, as where the insured avers the existence of some fact or circumstance which may affect the risk; or promissory, as where he engages the performance of, something executory.
3. There is a material difference between a representation and a warranty.
4. A warranty, being a condition upon which the contract is to take effect, is always a part of the written policy, and must appear on the face of it. Marsh. Ins. c. 9, §2. Whereas a representation is only a matter of collateral information or intelligence on the subject of the voyage insured, and makes no part of the policy. A warranty being in the nature of a condition precedent, must be strictly and literally complied with; but it is sufficient if the representation be true in substance, whether a warranty be material to the risk or not, the insured stakes his claim of indemnity upon the precise truth of it, if it be affirmative, or upon the exact performance of it, if executory; but it is sufficient if a representation be made without fraud, and be not false in any material point, or if it be substantially, though not literally, fulfilled. A false warranty avoids the policy, as being a breach of the condition upon which the contract is to take effect; and the insurer is not liable for any loss though it do not happen in consequence of the breach of the warranty; a false representation is no breach of the contract, but if material, avoids the policy on the ground of fraud, or at least because the insurer has been misled by it. Marsh. Insur. B. 1, c. 10, s. 1; Dougl. R. 247: 4 Bro. P. C. 482. See 2 Caines' R. 155; 1 Johns. Cas. 408; 2 Caines' Cas. 173, n.; 3 Johns. Cas. 47; 1 Caines' Rep. 288; 2 Caines' R. 22; Id. 329; Sugd. Vend. 6; Bouv. Inst. Index, h. t. and Concealment; Misrepresentation.
REPRESENTATION, Scotch law. The name of a plea or statement presented to a lord ordinary of the court of sessions, when his judgment is brought under review.
REPRESENTATION OF PERSONS; A fiction of the law, the effect of which is to put the representative in the place, degree, or right of the person represen-ted.
2. The heir represents his ancestor. Bac. Abr. Heir and Ancestor, A. The devisee, his testator; the executor, his testator; the administrator, his intestate; the successor in corporations, his predecessor. And generally speaking they are entitled to the rights of the persons whom they represent, and bound to fulfil the duties and obligations, which were binding upon them in those characters.
3. Representation was unknown to the Romans, and was invented by the commentators and doctors of the civil law. Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 3, n. 180. Vide Ayl. Pand. 397; Dall. Diet. mot Succession, art. 4, §2.
REPRIEVE, crim. law practice. This term is derived from reprendre, to take back, and signifies the withdrawing of a sentence for an interval of time, and operates in delay of execution. 4 Bl. Com. 394. It is granted by the favor of the pardoning power, or by the court who tried the prisoner.
3. Reprieves are sometimes granted ex necessitate legis; for example, when a woman is convicted of a capital offence, after judgment she may allege pregnancy in delay of execution. In order, however, to render this plea available she must be quick with child, (q. v.) the law presuming, perhaps absurdly enough, that before that period, life does not commence in the foetus. 3 Inst. 17; 2 Hale, 413; 1 Hale, 368; 4 Bl. Com. 395.
4. The judge is also bound to grant a reprieve when the prisoner becomes insane. 4 Harg. St. Tr. 205, 6; 3 Inst. 4; Hawk B. 1, c. 1, s. 4; 1 Chit. Cr. Law, 757.
REPRIMAND, punishment. The censure which in some cases a public office pronounces against an offender.
2. This species of punishment is used by legislative bodies to punish their members or others who have been guilty of some impropriety of conduct towards them. The reprimand is usually pronounced by the speaker.
REPRISALS, war. The forcibly taking a thing by one nation which belonged to another, in return or satisfaction for a injury committed by the latter on the former. Vatt. B., 2, ch. 18, s. 342; 1 Bl. Com. ch. 7.
2. Reprisals are used between nation and nation to do themselves justice, when they cannot otherwise obtain it. Congress have the power to grant letters of marque (q. v.) and reprisal. Const. art. 1, s. 8 cl. 11.
3. Reprisals are made in two ways either by embargo, in which case the act is that of the state; or, by letters of marque and reprisals, in which case the act is that of the citizen, authorized by the government. Vide 2 Bro. Civ. Law, 334.
4. Reprisals are divided into negative, when a nation refuses to fulfil a perfect obligation, which it has contracted, or to permit another state to enjoy a right which it justly claims; or positive, when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction.
5. They are also general or special. They are general when a state which has received, or supposes it has received an injury from another nation delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, in retaliation for such acts, wherever they may be found. It usually amounts to a declaration of war. Specia reprisals are such as are granted in times of peace, to particular individuals who have suffered an injury from the citizens or subjects of the other nation. Bynker. Quaest. Jur. Pub. lib. 1, Duponce, au's Translation, p. 182, note; Dall. Diet. Prises maritimes, axt. 2, §5.
6. The property seized in making reprisals is preserved, while there is any hope of obtaining satisfaction or justice, as soon as that hope disappears, it is confiscated, and then the reprisal is complete. Vattel, B. 2, c. 18, §342.
REPRISES. The deductions and payments out of lands, annuities, and the like, are called reprises, because they are taken back; when we speak of the clear yearly value of an estate, we say it is worth so much a year ultra reprises, besides all reprises.
2. In Pennsylvania, lands are not to be sold when the rents can pay the encumbrances in seven years, beyond all reprises.
REPROBATION, eccl. law. The propounding exceptions either against facts, persons or things; as, to allege that certain deeds or instruments have not been duly and lawfully executed; or that certain persons are such that they are incompetent as witnesses; or that certain things ought not for legal reasons to be admitted.
REPUBLIC. A commonwealth; that form of government in which the administration of affairs is open to all the citizens. In another sense, it signifies the state, independently of its form of government. 1 Toull. n. 28, and n. 202, note. In this sense, it is used by Ben Johnson. Those that, by their deeds make it known, whose dignity they do sustain; And life, state, glory, all they gain, Count the Republic's, not their own, Vide Body Politic; Nation; State.
REPUBLICAN GOVERNMENT. A government in the republican form; a government of the people; it is usually put in opposition to a monarchical or aristocratic government.
2. The fourth section of the fourth article of the constitution, directs that "the United States shall guaranty to every state in the Union a republican form of government." The form of government is to be guarantied, which supposes a form already established, and this is the republican form of government the United States have undertaken to protect. See Story, Const. §1807.
REPUBLICATION. An act done by a testator from which it can be concluded that be intended that an instrument which had been revoked by him, should operate as his will; or it is the re-execution of a will by the testator, with a view of giving it full force and effect.
2. The republication is express or implied. It is express when there has been an actual re-execution of it; 1 Ves. 440; 2 Rand. R. 192; 9 John, R. 312; it is implied when, for example, the testator by a codicil executed according to the statute of frauds, reciting that he had made his will, added, "I hereby ratify and confirm my said will, except in the alterations after mentioned." Com. R. 381.; 3 Bro. P. C. 85, The will might be at a distance, or not in the power of the testator, and it may be thus republished. 1 Ves. 437; 3 Bing. 614; 1 Ves. jr. 486; 4 Bro. C. C. 2.
3. The republication of a will has the effect; 1st. To give it all the force of a will made at the time of the republication; if, for example, a testator by his will devise "all his lands in A," then revokes his will, and afterwards buys other lands in A, the republication, made after the purchase, will pass all the testator's lands in A. Cro. Eliz. 493. See 1 P. Wms. 275. 2d. It sets up a will which had been revoked. See, generally, 2 Hill. Ab. 509; 3 Lomax, Dig. tit. 28, c. 6; 2 Bouv. Inst. n. 216 4.
TO REPUDIATE. To repudiate a right is to express in a sufficient manner, a determination not to accept it, when it is offered.
2. He who repudiates a right cannot by that act transfer it to another. Repudiation differs from renunciation in this, that by the former he who repudiates simply declares that he will not accept, while he who renounces a right does so in favor of another. Renunciation is however sometimes used in the sense of repudiation. See To Renounce; Renunciation; Wolff, Inst. 339.
REPUDIATION. In the civil law this term is used to signify the putting away of a wife or a woman betrothed.
2. Properly divorce is used to point out the separation of married persons; repudiation, to denote the separation either of married people, or those who are only affianced. Divortium est repudium et separatio maritorum; repodium est renunciatio sponsalium, vel etiam est divortium. Dig. 50, 16, 101, 1. Repudiation is also used to denote a determination to have nothing to do with any particular thing; as, a repudiation of a legacy, is the abandonment of such legacy, and a renunciation of all right to it.
3. In the canon law, repudiation is the refusal to accept a benefice which has been conferred upon the party repudiating.
REPUGNANCY, contracts. That which in a contract, is inconsistent with something already contracted for; as, for example, where a man by deed grants twenty acres of land, excepting one, this latter clause is repugnant, and is to be rejected. But if a farm or tract of land is conveyed by general terms, in exception of any number of acres, or any particular lot, it is not repugnant, but valid. 4 Pick. 54; Vide 3 Pick. 272; 6 Cowen, 677.
REPUGNANCY, pleading. Where the material facts stated in a declaration or other pleading, are inconsistent one with another for example, where in an action of trespass, the plaintiff declared for taking and carring away certain timber, lying in a certain place, for the completion of a house then lately built; this declaration was considered bad, for repugnancy; for the timber could not be for the building of a house already built. 1 Salk. 213.
2. Repugnancy of immaterial facts, and what is merely redundant, and which need not have been put into the sentence, and contradicting what was before alleged, will not, in general, vitiate the pleading. Gilb. C. P. 131; Co. Litt. 303 b; 10 East, R. 142; 1 Chit. Pl. 233. See Lawes, Pl. 64; Steph. Pl. 378; Com. Dig. Abatement H 6; 1 Vin. Ab. 36; 19 Id. 45; Bac. Ab. Amendment, &c. E 2 Bac. Ab. Pleas, Ac. I 4 Vin. Ab. h. t.
REPUGNANT. That which is contrary to something else; a repugnant condition is one contrary to the contract itself; as, if I grant you a house and lot in fee, upon condition that you shall not aliens, the condition is repugnant and void. Bac. Ab. Conditions, L.
REPUGNANT CONDITION. One which is contrary to the contract itself; as, if I grant you a house and lot in fee, upon condition that you shall not aliens, the condition is repugnant and void, as being consistent with the right granted.
REPUTATION, evidence. The opinion generally entertained by persons who know another, as to his character, (q. v.) or it is the opinion generally entertained by person; who know a family as to its pedigree, and the like.
2. In general, reputation is evidence to prove, 1st. A man's character in society. 2d. A pedigree. (q. v.) 3d. Certain prescriptive or customary rights and obligations and matters of public notoriety. (q. v.) But as such evidence is in its own nature very weak, it must be supported. 1st. When it relates to the exercise of the right or privilege, by proof of acts of enjoyment of such right or privilege, within the period of living memory; 1 Maule & Selw. 679; 5 T. R. 32; afterwards evidence of reputation may be given. 2d. The fact must be of a public nature. 3d. It must be derived from persons likely to know the facts. 4th. The facts must be general and, not particular. 5th. They must be free from suspicion. 1 Stark. Ev. 54 to 65. Vide 1 Har. & M'H. 152; 2 Nott & M'C. 114 5 Day, R. 290; 4 Hen. & M. 507; 1 Tayl. R. 121; 2 Hayw. 3; 8 S. & R. 159; 4 John. R. 52; 18 John. R. 346; 9 Mass. R. 414; 4 Burr. 2057; Dougl. 174; Cowp. 594; 3 Swanst. 400; Dudl. So. Car. R. 346; and arts. Character; Memory.
REQUEST, contracts. A notice of a desire on the part of the person making it, that the other party shall do something in relation to a contract.
2. In general when a debt exists payable immediately, the law does not impose on the creditor to make a request of payment. But when by the express terms of a contract, a request is necessary, it must be made. And in some cases where there is no express agreement a request is also requisite; as where A sells a horse to B to be paid for on delivery, a demand or request to deliver must be made before B can sustain an action; 5 T. R. 409; 1 East, 209; or, it must be shown that A has incapacitated himself to deliver the horse because he has sold the horse to another person. 10 East. 359; 5 B. & A. 712. On a general promise to marry, a request must be made before action, unless the proposed defendant has married another. 2 Dow. & Ry. 55. Vide Demand.
3. A request, like a notice, ought to be in writing and state distinctly what is required to be done without any ambiguous terms. 1 Chit. Pr. 497, 498.
REQUEST, pleading. The statement in the plaintiff's declaration that a demand or request has been made by the plaintiff from the defendant, to do some act which he was bound to perform, and for which the action is brought.
2. A request is general or special. The former is called the licet saepius requisitus, (q. v.) or "although often requested so to do;" though generally inserted in the common breach to the money counts, it is of no avail in pleading, and the omission of it will not vitiate the declaration. 2 Hen. Bl. 131; 1 Bos. & Pull. 59, 60; and see 1 John. Cas. 100. Whenever it is essential to the cause of action, that the plaintiff should have requested the defendant to perform his contract, such request must be stated in the declaration and proved. The special request must state by whom, and the time and place when it was made, in order that the court may judge of its sufficiency. 1 Str. 89. , Vide Com. Dig. Pleader, C 69, 70; 1 Saund. 33; 2 Ventr. 75; 3 Bos. & Pull. 438; 3 John. R. 207; 1 John. Cas. 319; 10 Mass. R. 230; 3 Day's R. 327; and the articles Demand; Licet saepius requisitus.
REQUEST NOTES, Engl. law. Certain notes or requests from persons amenable to the excise laws, to obtain a permit for removing any excisable goods or articles from one place to another.
REQUISITION. The act of demanding a thing to be done by virtue of some right. 2. The constitution of the United States, art. 4, s. 2, provides that fugitives from justice shall be delivered up to the authorities of the state from which they are fugitives, on the demand of the executive from such state. The demand made by the governor of one state on the governor of another for a fugitive is called a requisition.
RES, property. Things. The terms "Res," "Bona," "Biens," used by jurists who have written in the Latin and French languages, are intended to include movable or personal, as well as immovable or real property. 1 Burge, Confl. of Laws, 19. See Biens; Bona; Things.
RES GESTA, evidence. The subject matter; thing done.
2. When it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it, is admissible evidence, as part of the res gesta, for the purpose of showing its true character. On an indictment for a rape, for example, what the girl said so recently after the fact as to exclude the possibility of practising on her, has been held to be admissible evidence, as a part of the transaction. East, P. C. 414; 2 Stark. Cas. 241; 1 Stark. Ev. 47; 1 Phil. Ev. 218: Bouv. Inst. Index, h. t.
RES INTEGRA. An entire thing; an entirely new or untouched matter. This term is applied to those points of law which have not been decided, which are "untouched by dictum or decision." 3 Meriv. R. 269; 1 Burge on the Confl. of Laws, 241.
RES INTER ALIOS ACTA, evidence. This is a technical phrase which signifies acts of others, or transactions between others.
2. Neither the declarations nor any other acts of those who are mere stran-gers, or, as it is usually termed, any res inter alios ada, are admissible in evidence against any one when the party against whom such acts are offered in evidence, was privy to the act, the objection ceases; it is no longer res inter alios. 1 Stark Ev. 52; 3 Id 1300.
RES TUDIC ATA, practice. The decision of a legal or equitable issue, by a court of competent jurisdiction.
2. It is a general principle that such decision is binding and conclusive upon all other courts of concurrent power. This principle pervades not only our own, but all other systems of jurisprudence, and has become a rule of universal law, founded on the soundest policy. If, therefore, Paul sue Peter to recover the amount due to him upon a bond and on the trial the plaintiff fails to prove the due execution of the bond by Peter, in consequence of which a verdict is rendered for the defendant, and judgment is entered thereupon, this judgment, till reversed on error, is conclusive upon the parties, and Paul cannot recover in a subsequent suit, although he may then be able to prove the due execution of the bond by Peter, and that the money is due to him, for, to use the language of the civilians, res judicata facit ex albo nigrum, ex nigro album, ex curvo redum, ex recto curvum.
3. The constitution of the United States and the amendments to it declare, that no fact, once tried by a jury, shall be otherwise reexaminable in any court of the United States than according to the rules of the common law. 3 Pet. 433; Dig. 44, 2; and Voet, Ibid; Kaime's Equity, vol. 2, p. 367; 1 Johns. Ch. R. 95; 2 M. R. 142; 3 M. R. 623; 4 M. R. 313, 456, 481; 5 M. R. 282, 465; 9 M. R. 38; 11 M. R. 607; 6 N. S. 292; 5 N. S. 664; 1 L. R. 318; 8 L. R. 187; 11 L. R. 517. Toullier, Droit Civil Francais, vol. 10, No. 65 to 259.
4. But in order to make a matter res judicata there must be a concurrence of the four conditions following, namely: 1. Identity in the thing sued for. 2. Identity of the cause of action; if, for example, I have claimed a right of way over Blackacre, and a final judgment has been rendered against me, and afterwards I purchase Blackacre, this first decision shall not be a bar to my recovery, when I sue as owner of the land, and not for an easement over it, which I claimed as a right appurtenant to My land Whiteacre. 3. Identity of persons and of parties to the action; this rule is a necessary consequence of the rule of natural justice: ne inauditus condemnetur. 4. Identity of the quality in the persons for or against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administrator of Paul, to recover the same horse. Vide, Things adjudged.
RES MANCIPI, Rom. civ. law. Those things which might be sold and alienated, or the property of them transferred from one person to another. The division of things in to res mancipi and res nec mancipi, was one of ancient origin, and it continued to a late period in the empire. Res mancipi (Ulph. Frag. xix.) are praedia in italico solo, both rustic and urban also, jura rusticorum praediorum or servitutes, as via, iter, aquaeductus; also slaves, and four-footed animals, as oxen, horses, &c., qum collo dorsove domantur. Smith, Diet. Gr. and Rom. Antiq. To this list, may be added children of Roman parents, who were, according to the old law, res mancipi. The distinction between res mancipi and nec mancipi was abolished by Justinian in his code. Id.; Coop. Ins. 442.
RES NOVA. Something new; something not before decided.
RES NULLIUS. A thing which has no owner. A thing which has been abandoned by its owner is as much res nullius as if it had never belonged to any one.
2. The first possessor of such a thing becomes the owner, res nullius fit primi occupantis. Bowy. Com. 97.
RES PERIT DOMINO The thing is lost to the owner. This phrase is used to express that when a thing is lost or destroyed, it is lost to the person who was the owner of it at the time. For example, an article is sold; if the seller have perfected the title of the buyer so that it is his, and it be destroyed, it is the buyer's loss; but if, on the contrary, something remains to be done before the title becomes vested in the buyer, then the loss falls on the seller. See Risk.
RES UNIVERSATIS. Those things which belong to cities or municipal corporations are so called; they belong so far to the public that they cannot be appropriated to private use; such as public squares, market houses, streets, and the like. 1 Bouv. Inst. n. 446.
RESALE. A second sale made of an article; as, for example, if A sell a horse to B, and the latter not having paid, for him, refuse to take him away, when by his contract he was bound to do so, and then A sells the horse to C.
2. The effect of a resale, is not always to annul the first sale, because, as in this case, B would be liable to A for the difference of the price between the sale and resale. 4 Bing. 722; Blackb. on Sales, 336; 4 M. & G. 898.
RESCEIT. The act of receiving or admitting a third person to plead his right in a cause commenced by two; as when an action is brought against a tenant for life or term of years, the reversioner is allowed to defend. Cowell.
RESCEIT or RECEIT. The admission or receiving of a third person to plead his right in a cause formerly commenced between two other persons; as, when an action is brought against a tenant for life or years, or any other particular tenant, and he makes default, in such case the reversioner may move that he may be received to defend his right, and to plead with the demandant. Jacob, L. D. h. t. Resceit is also applied to the admittance of a plea, when the controversy is betweeen the same two persons. Co. Litt. 192; 3 Nels. Ab. 146.
RESCISSION OF A CONTRACT. The destruction or annulling of a contract.
2. The right to rescind a contract seems to suppose not that the contract has existed only in appearance; but that it has never had a real existence on account of the defects which accompanied it; or which prevented its actual execution. 7 Toul. n. 551 17 Id. n. 114.
3. A contract cannot, in general, be rescinded by one party unless both parties can be placed in the same situation, and can stand upon the same terms as existed when the contract was made. 5 East, 449; 15 Mass. 819; 5 Binn. 355; 3 Yeates, 6. The most obvious instance of this rule is, where one party by taking possession, &c., has received a partial benefit from the contract. Hunt v. Silk. 5 East, 449.
4. A contract cannot be rescinded in part. It would be unjust to destroy a contract in toto, when one of the parties has derived a partial benefit, by a performance of the agreement. In such case it seems to have been the practice formerly to allow the vendor to recover the stipulated price, and the vendee to recover, by a cross-action, damages for the breach of the contract. 7 East, 480, in the note. But according to the later and more convenient practice, the vendee, in such case, is allowed in an action for the price, to give evidence of the inferiority of the goods in reduction of damages, and the plaintiff who has broken his contract is not entitled to recover more than the value of the benefit the defendant has actually derived from the goods or labor; and when the latter has derived no benefit, the plaintiff cannot recover at all. Stark. on Evidence, part 4, tit. Goods sold and delivered; Chitty on Contr. 276.
5. A sale of land, by making a deed for the same, and receiving security for the purchase money, may be rescinded before the deed has been recorded, by the purchaser surrendering the property and, the deed to the buyer, and receiving from him the securities he had given; in Pennsylvania, these acts revest the title in the original owner. 4 Watts, 196, 199. But this appears contrary to the current of decisions in other states and in England. 4 Wend. 474; 2 John. 86; 5 Conn. 262; 4 Conn. 350; 4 N. H. Rep. 191; 9 Pick. 105; 2 H. Bl. 263, 264; Pre. in- Chan. 235; 6 East, 86; 4 B. & A. 672. See 7 East, 484; 1 Mass. R. 101 14 Mass. 282; Whart on's Dig. 119, 120 10 East, 564; 1 Campb. 78, 190; 3 Campb. 451; 3 Starkie, 32; 1 Stark. R. 108; 2 Taunt. 2; 2 New Rep. 136; 6 Moore, 114; 3 Chit. Com. L. 153; 1 Saund. 320, b. note; l Mason, 437; 1 Chip. R. 159; 2 Stark. Ev. 97, 280 8 lb. 1614, 1645 3 New Hamp. R. 455; 2 South, R. 780 Day's note to Templer v. McLachlan, 2 N. R. 141; 1 Mason, 93; 20 Johns. 196; 5 Com. Dig. 631, 636; and Com. Dig. Action upon the case upon Assumpsit, A 1, note x, .p. 829, for a very full note; Com. Dig. Biens, D 3, n. s.
6. As to the cases where a contract will be rescinded in equity on the ground of mistake, see Newl. Cont. 432; or where heirs are dealing with, their expectancies, lbid. 435; sailors with their prize money, Ibid. 443; children dealing with their parents, Ibid. 445; guardians with their wards, Ibid. 448; attorney with his client, Ibid. 453; cestui que trust, with trustee, Ibid. 459; where contracts are rescinded on account of the turpitude of their consideration, Ibid. 469; in fraud of marital rights, Ibid. 424 in fraud of marriage agreement, Ibid. 417 on account of imposition, Ibid. 351; in fraud of creditors, lb. 369; in fraud of purchasers, Ib. 391; in fraud of a deed of composition by creditors, lb. 409.
RESCOUS, crim. law, torts. This word is used synonymously with rescue, (q. v.) and denotes the illegal taking away and setting at liberty a distress taken, or a person arrested by due process of law. Co. Litt. 160.
2. In civil cases when a defendant is rescued the officer will or will not be liable, as the process under which the arrest is made, is or is not final. When the sheriff executes a fi. fa. or ca. sa. he may take the posse comitatus; Show. 180; and, neglecting to do so, he is responsible; but on mesne or original process, if the defendant rescue himself, vi et armis, the sheriff is not answerable. 1 Holt's R. 537; 3 Engl. Com. Law Rep. 179, S. C. Vide Com. Dig. h. t.; Yelv. 51; 2 T. R. 156; Woodf. T. 521 Bac. Ab. Rescue, D; Doct. Pl. 433.
RESCRIPT, conv. A counterpart.
2. In the canon law, by rescripts are understood apostolical letters, which emanate from the pope, under whatever form they may be. The answers of the pope in writing are so called. Diet. Dr. Can. h. v. Vide Chirograph; Counterpart; Part.
RESCRIPTION, French law. A rescription is a letter by which the maker requests some one to pay a certain sum of money, or to account for him to a third person for it. Poth. Du Contr. de Change, n. 225.
2. According to this definition, bills of exchange are a species of rescription. The difference appears to be this, that a bill of exchange is given when there has been a contract of exchange between the drawer and the payee; whereas the rescription is sometimes given in payment of debt, and at other times it is lent to the payee. Id.
RESCRIPTS, civ. law. The answers of the prince at the request of the parties respecting some matter in dispute between them, or to magistrates in relation to some doubtful matter submitted to him.
2. The rescript was differently denominated, according to the character of those who sought it. They were called annotations or subnotations, when the answer was given at the request of private citizens; letters or epistles, when he answered the consultation of magistrates; pragmatic sanctions, when he answered a corporation, the citizens of a province, or a municipality. Lecons El. du Dr. Rom. §53; Code, 1, 14, 3.
RESCUE, crim. law. A forcible setting at liberty against law of a person duly arrested. Co. Litt. 160; 1 Chitty's Cr, Law, *62; 1 Russ. on Cr. 383. The person who rescues the prisoner is called the rescuer.
2. If the rescued prisoner were arrested for felony, then the rescuer is a felon; if for treason, a traitor; and if for a trespass, he is liable to a fine as if he had committed the original offence. Hawk. B. 5, c. 21. If the principal be acquitted, the rescuer may nevertheless be fined for the misdemeanor in the obstruction and contempt of public justice. 1 Hale, 598.
3. In order to render the rescuer criminal, it is necessary he should have knowledge that the person whom he sets at liberty has been apprehended for a criminal offence, if he is in the custody of a private person; but if he be under the care of a public officer, then he is to take notice of it at his peril. 1 Hale, 606.
4. In another sense, rescue is the taking away and setting at liberty, against law, a distress taken for rent, or services, or damage feasant. Bac. Ab. Rescue, A.
5. For the law of the United States on this subject, vide Ing. Dig. 150. Vide, generally, 19 Vin. Ab. 94.
RESCUE, mar. war. The retaking by a party captured of a prize made by the enemy. There is still another kind of rescue which partake's of the nature of a recapture; it occurs when the weaker party before he is overpowered, obtains relief from the arrival of fresh succors, and is thus preserved from the force of the enemy. 1 Rob. Rep. 224; 1 Rob. Rep. 271.
2. Rescue differs from recapture. (q. v.) The rescuers do not by the rescue become owners of the property, as if it had been a new prize - but the property is restored to the original owners by the right of postliminium. (q. v.)
RESCUSSOR. The party making a rescue, is sometimes so called, but more properly he is a rescuer.
RESERVATION, contracts. That part of a deed or other instrument which reserves a thing not in esse at the time of the grant, but newly created. 2 Hill. Ab. 359; 3 Pick. R. 272; It differs from an exception. (q. v.) See 4 Verm. 622; Brayt. R. 230; 9 John. R. 73; 20 John, R. 87; 3 Ridg. P. C. 402; Co. Litt. 43 a; 2 Tho Co. Litt. 412
RESET OF THEFT, Scotch law. The receiving and keeping of stolen goods knowing them to be stolen, with a design of feloniously retaining them from the real owner. Alis. Pr. Cr. 328.
RESETTER, Scotch law. A receiver of stolen goods, knowing them to have been stolen.
RESIANCE. A man's residence or permanent abode. Such a man is called a resiant. Kitch. 33.
RESIDENCE. The place of one's domicil. (q. v.) There is a difference between a man's residence and his domicil. He may have his domicil in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicil, he may have several residences. A residence is generally tran-sient in its nature, it becomes a domicil when it is taken up animo manendi. Roberts; Ecc. R. 75.
2. Residence is prima facie evidence of national character, but this may at all times be explained. When it is for a special purpose and transient in its nature, it does not destroy the national character.
3. In some cases the law requires that the residence of an officer shall be in the district in which he is required to exercise his functions. Fixing his residence elsewhere without an intention of returning, would violate such law. Vide the cases cited under the article Domicil; Place of residence.
RESIDENT, international law. A minister, according to diplomatic language, of a third order, less in dignity than an ambassador, or an envoy. This term formerly related only to the continuance of the minister's stay, but now it is confined to ministers of this class.
2. The resident does not represent the prince's person in his dignity, but only his affairs. His representation is in reality of the same nature as that of the envoy; hence he is often termed, as well as the envoy, a minister of the second order, thus distinguishing only two classes of public ministers, the former consisting of ambassadors who are invested with the representative character in preeminence, the latter comprising all other ministers, who do not possess that exalted character. This is the most necessary distinction, and indeed the only essential one. Vattel liv. 4, c. 6, 73.
RESIDENT, persons. A person coming into a place with intention to establish his domicil or permanent residence, and who in consequence actually remains there. Time is not so essential as the intent, executed by making or beginning an actual establishment, though it be abandoned in a longer, or shorter period. See 6 Hall's Law Journ. 68; 3 Hagg. Eccl. R. 373; 20 John. 211 2 Pet. Ad. R. 450; 2 Scamm. R. 377.
RESIDUARY LEGATEE. He to whom the residuum of the estate is devised or bequeathed by will. Roper on Leg. Index, h. t.; Powell Mortg. Index, h. t.; 8 Com. Dig. 444.
RESIDUE. That which remains of something after taking away a part of it; as, the residue of an estate, which is what has not been particularly devised by will.
2. A will bequeathing the general residue of personal property, passes to the residuary legatee everything not otherwise effectually disposed of and it makes no difference whether a legacy falls into the estate by lapse, or as void at law, the next of kin is equally excluded. 15 Ves. 416; 2 Mer. 392. Vide 7 Ves. 391; 4 Bro. C. C. 55; 1 Bro. C. C. 589; Rop. on Leg. Index, h. t.; Worth. on Wills, 454.
RESIGNATION. The act of an officer by which he declines his office, and renounces the further right to use it. It differs from abdication. (q. v.)
2. As offices are held at the will of both parties, if the resignation of a officer be not accepted, he remains in office. 4 Dev. R. 1.
RESIGNEE. One in favor of whom a resignation is made. 1 Bell's Com. 125 n.
RESISTANCE. The opposition of force to force.
2. Resistance is either lawful or unlawful. 1. It is lawful to resist one who is in the act of committing a felony or other crime, or who maliciously endeavors to commit such felony or crime. See self defence. And a man may oppose force to force against one who endeavors to make an arrest, or to enter his house without lawful authority for the purpose; or, if in certain cases he abuse such authority, and do more than he was authorized to do; or if it turn out in the result he has no right to enter, then the party about to be imprisoned, or whose house is about to be illegally entered, may resist the illegal imprisonment or entry by self-defence, not using any dangerous weapons, and may escape, be rescued, or even break prison, and others may assist him in so doing. 5 Taunt. 765; 1 B. & Adol, 166; 1 East, P. C. 295; 5 East, 304; 1 Chit. Pr. 634. See Regular and Irregular Process.
3. - 2. Resistance is unlawful when the persons having a lawful authority to arrest, apprehend, or imprison, or otherwise to advance or execute the public justice of the country, either civil or criminal, and using the proper means for that purpose, are resisted in so doing; and if the party guilty of such resistance, or others assisting him, be killed in the struggle, such homicide is justifiable; while on the other hand, if the officer be killed, it will, at common law, be murder in those who resist. Fost. 270; 1 Hale, 457; 1 East, P. C. 305.
RESOLUTION. A solemn judgment or decision of a court. This word is frequently used in this sense, in Coke and some of the more ancient reporters. It also signifies an agreement to a law or other thing adopted by a legislature or popular assembly. Vide Dict. de Jurisp. h. t.
RESOLUTION, Civil law. The act by which a contract which existed and was good, is rendered null.
2. Resolution differs essentially from rescission. The former presupposes the contract to have been valid, and it is owing to a cause posterior to the agreement that the resolution takes place; while rescission, on the contrary, supposes that some vice or defect annulled the contract from the beginning. Resolution may be by consent of the parties or by the decision of a competent tribunal; rescission must always be by the judgment of a court. 7 Troplong, de la Vente, n. 689; 7 Toull. 551; Dall. Dict. h. t.
RESOLUTORY CONDITION. On which has for its object, when accomplished, the revocation of the principal obligation; for example, I will sell you my crop of cotton, if my ship America does not arrive in the United States, within six months. My ship arrives in one month, my contract with you is revoked. 1 Bouv. Inst. n. 764.
RESORT. The authority or jurisdiction of a court. The supreme court of the United States is a court of the last resort.
RESPECTABLE WITNESS. One who is competent to testify in a court of justice. To pass lands in Alabama, a will must be attested by three or more respectable witnesses. See Attesting witness; Competent witness; Credible witness and Witness.
RESPIRATION, Med. jur. Breathing, which consists of the drawing into, inhaling, or more technically, inspiring, atmospheric air into the lungs, and then: forcing out, expelling, or technically expiring, from the lungs the air therein. Chit. Med. Jur. 92 and 416, note n.
RESPITE, contracts, civil law. An act by which a debtor who is unable to satisfy his debts at the moment, transacts (i. e. compromises) with his creditors, and obtains from them time or delay for the payment of the sums which he owes to them. Louis. Code, 3051.
2. The respite is either voluntary or forced; it is voluntary when all the creditors consent to the proposal, which the debtor makes to pay in a limited time the whole or a part of his debt; it is forced when a part of the credi-tors refuse to accept the debtor's proposal, and when the latter is obliged to compel them by judicial authority, to consent to what the others have deter-mined in the cases directed by law. Id. 3052; Poth. Proced. Civ. 5eme partie, ch. 3.
3. In Pennsylvania, there is a provision in the insolvent act of June 16, 1836, s. 41, somewhat similar to involuntary respite. It is enacted, that whenever a majority in number and value of the creditors of any insolvent, as aforesaid, residing within the United States, or having a known attorney therein, shall consent in writing thereto, it shall be lawful for the court by whom such insolvent shall have been discharged, upon the application of such debtor, and notice given thereof, in the manner hereinbefore provided for giving notice of his original petition, to make an order that the estate and effects which such insolvent may afterwards acquire, shall be exempted for the term of seven years thereafter from execution, for any debt contracted, or cause of action existing previously to such discharge, and if after such order and consent, any execution shall be issued for such debt or cause of action, it sliall be the duty, of any judge of the court from which such execution issued, to set aside the same with costs.
4. Respite also signifies a delay, forbearance or continuation of time.
RESPITE, crim. law. A suspension of a sentence, which is to be executed at a future time. It differs from a pardon, which is in abolition of the crime. See Abolition; Pardon.
RESPONDEAT OUSTER. The name of a judgment when an issue in law, arising on a dilatory plea, has been decided for the plaintiff, that the defendant answer over. See 1 Meigs, 122; 1 Ala. R. 442; 3 Ala. R. 278; 3 Pike, 339; 4 Pike, 445; 4 Misso. R. 366; 5 Blackf. 167; 5 Metc. 88; 1 Gilm. R. 395 16 Conn. 436; 24 Pick. 49. Vide Judgment of Respondeat Ouster.
RESPONDENT, practice. The party who makes an answer to a bill or other proceeding in chancery. In the civil law, this term signifies one who answers or is security for another; a fidejussor. Dig. 2, 8, 6.
RESPONDENTIA, maritime law. A loan of money on maritime interest, on goods laden on board of a ship, which, in the course of the voyage must, from their nature, be sold or exchanged, upon this condition, that if the goods should be lost in the course of the voyage, by any of the perils enumerated in the contract, the lender shall lose his money; if not, that the borrower shall pay him the sum borrowed, with the interest agreed upon,
2. The contract is called respondentia, because the money is lent on the personal responsibility of the borrower. It differs principally from bottomry, in the following circumstances: bottomry is a loan on the ship; respondentia is a loan upon the goods. The money is to be repaid to the lender, with mari-time interest, upon the arrival of the ship, in the one case and of the goods, in the other. In all other respects the contracts are nearly the same, and are governed by the same principles. In the former, the ship and tackle, being hypothecated, are liable, as well as the person of the borrower; in the latter, the lender has, in general, only the personal security of the borrower. Marsh. Ins. B. 2, c. 1, p. 734. See Lex Mer. Amer. 354; Com. Dig. Merchant, E 4; 1 Fonb. Eq. 247, n. I.; Id. 252, n. o.; 2 Bl. Com. 457; Park. Ins. ch. 21; Wesk. Ins. 44; Beawes' Lex. Mex. 143; 3 Chitty's Com. Law, 445 to 536; Bac. Abr. Merchant and Merchandise, K; Bottomry.
RESPONDERE NON DEBET. The prayer of a plea where the defendant insists that he ought not to answer, as when he claims a privilege; for example, as being a member of congress, or a foreign amhassador. 1 Chit. Pl. *433.
RESPONSA PRUDENTUM, civil law. Opinions given by Roman lawyers. Before the time of Augustus, every lawyer was authorized de jure, to answer questions put to him, and all such answers, response prudentum had equal authority, which had not the force of law, but the opinion of a lawyer. Augustus was the first prince who gave to certain distinguished jurisconsults the particular privi-lege of answering in his name; and from that period their answers required greater authority. Adrian determined in a more precise manner the degree of authority which these answers should have, by enacting that the opinions of such authorized jurisconsults, when unanimously given, should have the force of law (legis vicenz,) and should be followed by the judges; and that when they were divided, the judge was allowed to adopt that which to him appeared the most equitable.
2. The opinions of other lawyers held the same place they had before, they were considered merely as the opinions of learned men. Mackel. Man. Intro. §43; Mackel. Hist. du Dr. Rom. SSSS 40, 49; Hugo, Hist. du Dr. Rom. §313; Inst. 1, 2, 8,; Institutes Expliquees, n. 39.
RESPONSALIS, old Eng. law., One who appeared for another in court. Fleta, lib. 6, c., 21. In the ecclesiastical law, this name is sometimes given to a proctor.
RESPONSIBILITY. The obligation to answer for an act done, and to repair any injury it may have caused.
2. This obligation arises without any contract, either on the part of the party bound to repair the injury, or of the party injured. The law gives to the person who has suffered loss, a compensation in damages.
3. it is a general rule that no one is answerable for the acts of another unless he has, by some act of his own, concurred in them. But when he has sanctioned those acts, either explicitly or by implication, he is responsible. An innkeeper in general, civilly liable for the acts of his servants towards his guests, for anything done in their capacity of servants. The owner of a carriage is also, civilly responsible to a passenger for any injury done by the driver as such. See Driver.
4. There are cases where persons are made civilly responsible for the acts of others by particular laws and statutory provisions, when they have not done anything by which they might be considered as participating in such acts. The responsibility which the hundred (q. v.) in England formerly incurred to make good any robbery committed within its precincts, may be mentioned as an instance. A somewhat similar liability is incurred now in some places in this country by a county, when property has been destroyed by a mob.
5. Penal responsibility is always personal, and no one can be punished for the commission of a crime but the person who has committed it or his accomplice. Vide Damages; Injury; Loss.
RESTITUTION, maritime law. The placing back or restoring articles which have been lost by jettison; this is done when the remainder of the cargo has been saved at the general charge of the owners of the cargo; but when the remainder of the goods are afterwards lost, there is not any restitution. Stev. on Av. 1, c. 1, s. 1, art. 1, ii., 8. Vide Recompense.
RESTITUTION, practice. The return of something to the owner of it, or to the person entitled to it.
2. After property has been taken into execution, and the judgment has been reversed or set aside, the party against whom the execution was sued out shall have restitution, and this is enforced by a writ of restitution. Cro. Jac. 698; 4 Mod. 161. When the thing levied upon under an execution has not been sold, the thing itself shall be restored; when it has been sold, the price for which it is sold is to be restored. Roll. Ab. 778; Bac. Ab. Execution, Q; 1 Al. & S. 425.
3. The phrase restitution of conjugal rights frequently occurs in the ecclesiastical courts. A suit may there be brought for this purpose whenever either the hushand or wife is guilty of the injury of subtraction, or lives separate from the other without sufficient reason; by which the party injured may compel the other to return to cohabitation. 1 Bl. Com. 94; 1 Addams, R. 305; 3 Hagg. Eccl. R. 619.
TO RESTORE. To return what has been unjustly taken; to place the owner of a thing in the state in which he formerly was. By restitution is understood not only the return of the thing itself, but all its accessories. It is to return the thing and its fruits. Dig. 60, 16, 35, 75 et 246, §1.
RESTRAINING. Narrowing down, making less extensive; as, a restraining statute, by which the common law is narrowed down or made less extensive in its operation.
RESTRAINING POWERS. A term used in equity. When the donor of a power, who is the owner of the estate, imposes certain restrictions by the terms of the powers, these restrictions are called restraining powers.
RESTRAINT. Something which prevents us from doing what we would desire to do.
2. Restraint is lawful and unlawful. It is lawful when its object is to prevent the violation of the law, or the rights of others. It is unlawful when it is used to prevent others from doing a lawful act; for example, when one binds himself not to trade generally; but an agreement not to trade in a particular place is lawful. A legacy given in restraint of marriage, or on condition that the legatee shall not marry, is good, and the condition alone is void. The Roman civil law agrees with ours in this respect; a legacy given on condition that the legatee shall not marry is void. Clef des Lois Rom. mot Passion. See Condition; Limitation.
RESTRICTIVE INDORSEMENT, contracts. One which confines the negotiability of a promissory note or bill of exchange, by using express words to that effect, as by indorsing it "payable to A,B only." 1 Wash. C. C. 512; 2 Murph. 138; 1 Bouv. Inst. n. 1138.
RESULTING TRUSTS, estates. Resulting, implied or constructive trusts, are those which arise in cases where it would be contrary to the principles of equity that be in whom the property becomes vested, should hold it otherwise than as a trustee. 2 Atk. 150.
2. As an illustration of this description of a resulting trust, may be mentioned the case of a contract made for the purchase of a real estate; on the completion of the contract, a trust immediately results to the purchaser, and the vendor becomes a trustee for him till the conveyance of the legal estate is made. Again, when an estate is purchased in the name of one person, and the purchase money is paid by another, there is a resulting trust in favor of the person who gave or paid the consideration. Willis on Tr. 55; 1 Cruise, Dig. tit. 12, s. 40, 41; Ch. Ca. 39; 9 Mod. 78; 7 Ves. 725; 3 Hen. & Munf. 367; 1 Supp. to Ves. jr. 11; Pow. Mortg. Index, h. t.; 2 John. Ch. R. 409, 450; 3 Bibb, R. 15, 506; 4 Munf. R. 222; 1 John. Ch. Rep. 450, 582; Sugd. on Vend. ch. 15, s. 2 Cox, Ch. Rep. 93; Bac. Ab. Trusts, C; Bouv. last. Index, h. t. Vide Trusts; Use.
RESULTING USE, estates. One which having been limited by deed, expires or cannot vest; it then returns back to him who raised it, after such expiration, or during such impossibility.
2. When the legal seisin and possession of land is transferred by any common law conveyance, and no use is expressly declared, nor any consideration nor evidence of intent to direct the use, such use shall result back to the original owner of the estate; for in such case, it cannot be supposed that it was intended to give away the estate. 2 Bl. Com. 335; Cruise, Dig. t. 11, c. 4, s. 20, et seq.; Bac. Tracts, Read. on Stat. of Use's, 351; Co. Litt. 23, a.; Id. 271, a; 2 Binn. R. 387; 3 John. R. 396.
RESUMPTION. To reassume; to promise again; as, the resumption of payment of specie by the banks is general. It also signifies to take things back; as the government has resumed the possession of all the lands which have not been paid for according to the requisitions of the law, and the contract of the purchasers. Cow. Int. h. t.
RETAIL. To sell by retail, is to sell by small parcels, and not in the gross. 5 N. S. 279.
RETAILER OF MERCHANDISE. One who deals in merchandise by selling it in smaller quantities than he buys, generally with a view to profit.
TO RETAIN, practice. To engage the services of an attorney or counsellor to manage a cause, at which time it is usual to give him a fee, called the re-taining fee. The act by which the attorney is authorized to act in the case is called a retainer.
2. Although it is not indispensable that the retainer should be in writing, unless required by the other side, it is very expedient. It is therefore recommended, particularly when the client is a stranger, to require from him a written retainer, signed by himself; and, in order to avoid the insinuation that it was obtained by contrivance, it should be witnessed by one or more respectable persons. When there are several plaintiffs, it should be signed by all and not by one for himself and the others, especially if they are trustees or assignees of a bankrupt or insolvent. The retainer should also state whether it be given for a general or a qualified authority. Vide the form of a retainer in 3 Chit. Pr. 116, note m.
3. There is an implied contract on the part of an attorney who has been retained, that he will use due diligence in the course of legal proceedings, but it is not an undertaking to recover a judgment. Wright, R. 446. An attorney is bound to act with the most scrupulous honor, he ought to disclose to his client if he has any adverse retainer which may affect his judgment, or his client's interest; but the concealment of the fact does not necessarily imply fraud. 3 Mason's R. 305; 2 Greenl. Ev. §139.
RETAINER. The act of withholding what one has in one's own hands by virtue of some right.
2. An executor or administrator is entitled to retain in certain cases, for a debt due to him by the estate of a testator or intestate.
3. It is proposed to inquire, 1. Who may retain. 2. Against whom. 3. On what claims. 4. What amount may be retained.
4. - 1. In inquiring who may retain, it is natural to consider, 1st. Those cases where there is but one executor or administrator. 2d, Where there are several, and one of them only has a claim against the estate of the deceased.
5. - 1. A sole executor may retain in those cases where, if the debt had been due to a stranger, such stranger might have sued the executor and recov-ered judgment; or where the executor might, in the due administration of the estate, have paid the same. 3 Burr. 1380. He may, therefore, retain a debt due to himself; 3 Bl. Com. 18; or to himself in right of another; 3 Burr. 1380; or to another in trust for him; 2 P. Wms. 298: the debt may be retained when administration is committed to another for the use of the creditor who is a lunatic; 3 Bac. Abr. 10, n; Com. Dig. Administration, C or an infant entitled to administration. 4 Ves. 763. An executor may retain if he be the executor of the first testator; but an executor of one of the executors of the first tes-tator, the other executor, being still living, is not an executor of the first testator, and therefore cannot retain. 11 Vin. Abr. 363, An executor may re-tain before he has proved the will, and if he die after having intermeddled with the goods of the testator and before probate, his executor has the same power. 3 P. Wms. 183, and note B.; 11 Vin. Abr. 263.
6. - 2. Where there are several executors, and one has a claim against the estate of the deceased, he may retain with or without the consent of the others; Off. Ex. 33; but where several of them have debts of equal degree they can retain only pro rata. Bac. Abr. Executors, A 9.
7. - II. Against whom. In those cases, 1. Where the deceased was alone bound. 2. Where he was bound with others. 3. Where the executor of the obligee is also his executor.
8. - 1. Where the deceased was sole obligor, his executor may clearly retain.
9. - 2. Where two are jointly and severally bound, and one of them appoints the obligee his executor; Rob. 10; 2 Lev. 73; Bac. Abr. Executors, A 9; Com. Dig. Administration,, C 1; or the obligee takes out letters of administration to him, the debt is immediately satisfied by way of retainer, if, the executor or administrator have sufficient assets.
10. - 3. If the obligee make the administrator of the obligor his executor, it is a discharge of the debt, if the administrator have assets of the estate of the obligor; but if he have fully administered, or if no assests to pay the debt came to his hands, it is no discharge, for there is nothing for him to retain. 8 Serg. & Rawle, 17.
11. - III. On what claims. 1. As to the priority of the claim. 2. As to its nature.
12. - 1. In the payment of the debts of a decedent, the law gives a preference to certain debts over others, an executor cannot, therefore, retain his debt, while there are unpaid debts of a superior degree, because if he could have brought an action for the recovery of his claim, he could not have re-covered in prejudice of such a creditor. 5 Binn. 167 Bac. Ab. Executors, A 9; Com. Dig. Administration, C 2; 1 Hayw. 413. He may retain only where he has superior claim, or one of equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261; Com. Dig. Administration, C 1. And in a case where two men were jointly bound in a bond, one as principal, the other as surety, after which the principal died intestate, and the surety took out administration to his estate, the bond being forfeited, the administrator paid the debt; it was held he could not retain as a specially creditor because being a party to the bond it became his own debt; 11 Vin. Abr. 265; Godb. 149, Pl. 194; but see 7 Serg. & Rawle, 9; after having paid the debt, however, he became a simple contract creditor, and might retain it as such. Com. Dig. Administration, C 2, n.
13. - 2. As to the nature of the claim for which an executor may retain, it seems that damages which are in their nature arbitrary cannot be retained, because, till judgment, no man can foretel their amount; such are damages upon torts. But where damages arise from the breach of a pecuniary contract, there is a certain measure for them, and such damages may well be retained. 2 Bl. Rep. 965; and see 3 Munf. 222. A debt barred by the act of limitation may be retained, for the executor is not bound to plead the act against others, and it shall, therefore, not operate against him. 1 Madd. Ch. 583.
14. - IV. What amount may be retained. 1. By the common law an executor is entitled to retain his debt in preference to all other creditors in an equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261. This he might do, because he is to be placed in the situation of the most vigilant creditor, who by suing and obtaining a judgment might have obtained a preference. Where however, the exec-utor cannot, by bringing suit, obtain a preference, the reason seems changed, and therefore in Pennsylvania, when do such preference can be obtained, the executor is entitled to retain only pro rata with creditors of the same class. 8 Serg. & Rawle, 17; 5 Binn. 167. A creditor cannot obtain a reference by bringing suit and obtaining judgment against executors in the following states, namely: Alabama; 4 Griff. L. R. 582; Connecticut; 3 Griff. L. R. 75; Illinois; Id. 422; Louisiana;, 4 Griff. L. R. 693; Maine; Id. 1004; Maryland; Id. 938; Massachusetts; 3 Griff. L. R. 516 Mississippi; 4 Griff. L. R. 669; Missouri Id. 625; Now Hampshire; 3 Griff. L. R 46; Ohio; Id. 402; Pennsylvania; Id. 262; 8 Serg. & Rawle, 17; 5 Binn. 1 67; Rhode Island; 8 Griff. L. R. 114; South Carolina; 4 Griff. L. R. 860; Vermont; 3 Griff. L. R. 20. Such a preference can be given by the laws of the following states, namely: Delaware; 4 Griff. L. R. 1064; Kentucky; Id. 1135; North Carolina; 3 Griff. L. R. 221; Now Jersey; 4 Griff. L. R. 1282; New York; 3 Griff. L. R, 141; Tennessee; 4 Griff. L. R. 791; Virginia; 3 Griff. L. R. 360, In Georgia; 3 Griff. L. R. 444; and Indiana.; Id. 467; the matter is doubtful.
15. - 2. Where the estate is solvent an executor may of course retain for the whole of his debt, with interest.
RETAINER, practice. The act of a client, by which he engages an attorney or counsellor to manage a cause, either by prosecuting it, when he is plaintiff, or defending it, when he is defendant.
2. "The effect of a retainer to prosecute or defend a suit," says Professor Greenleaf; Ev. vol. ii. §141; "is to confer on the attorney all the powers exercised by the forms and usages of the courts, in which the suit is pending. He may receive payment; may bring a second suit after being non-suited in the first for want of formal proof; may sue a writ of error on the judgment; may discontinue the suit; may restore an action after a non pros; may claim an appeal and bind his client in his name for the prosecution of it; way submit the suit to arbitration; may sue out an alias execution; may receive livery of seisin of land taken by an extent may waive objections to evidence, and enter into stipulation for the admission of facts or conduct of the trial and for release of bail; may waive the right of appeal, review, notice, and the like, and confess judgment. But he has no authority to execute a discharge of a debtor but upon the actual payment of the full amount of the debt, and that in money only; nor to release sureties; nor to enter a retraxit; nor to act for the legal representatives of his deceased client; nor to release a witness."
RETAINING FEE. A fee given to counsel on being consulted in order to insure his future services.
RETAKING. The taking one's goods, wife, child, &c., from another, who with-out right has taken possession thereof. Vide Recaption; Rescue.
RETALIATION. The act by which a nation or individual treats another in the same manner that the latter has treated them. For example, if a nation should lay a veryheavy tariff on American goods, the United States would be justified in return in laying heavy duties on the manufactures and productions of such country. Vatt. Dr. des Gens, liv. 2, c. 18, §341. Vide Lex talionis.
RETENTION, Scottish law. The right which the possessor of a movable has, of holding the same until he shall be satisfied for his claim either against such movable or the owner of it; a lien.
2. The right of retention is of two kinds, namely, special or general. 1. Special retention is the right of withholding or retaining property of goods which are in one's possession under a contract, till indemnified for the labor or money expended on them. 2. General retention is the right to withhold or detain the property of another, in respect of any debt which happens to be due by the proprietor to the person who has the custody; or for a general balance of accounts arising on a particular train of employment. 2 Bell's Com. 90, 91, 5th ed. Vide Lien.
RETORNO HABENDO. The name of a writ issued to compel a party to return property which has been adjudged to the other in an action of replevin. Vide Writ pro retorno habendo.
RETORSION, war. The name of the act employed by a government to impose the same hard treatment on the citizens or subjects of a state, that the latter has used towards the citizens or subjects of the former, for the purpose of obtaining the removal of obnoxious measures. Vattel, liv. 2, c. 18, §341; De Martens, Precis, liv. 8, c. 2, §254; Kluber, Droit dos Gens, s. 2 c. 1, §234; Mann. Comm. 105.
2. Retorsion signifies also the act by which an individual returns to his adversary evil for evil; as, if Peter call Paul thief, and Paul says you are a greater thief.
TO RETRACT. To withdraw a proposition or offer before it has been accepted.
2. This the party making it has a right to do is long as it has not been accepted; for no principle of law or equity can, under these circumstances, require him to persevere in it.
3. The retraction may be express, as when notice is given that the offer is withdrawn; or, tacit as by the death of the offering party, or his inability to complete the contract; for then the consent of one of the parties has been destroyed, before the other has acquired any existence; there can therefore be no agreement. 16 Toull. 55.
4. After pleading guilty, a defendant will, in certain cases where he has entered that plea by mistake or in consequence of some error, be allowed to retract it. But where a prisoner pleaded guilty to a charge of larceny, and sentence has been passed upon him, he will not be allowed to retract his plea, and plead not guilty. 9 C. & P. 346; S. C. 38 E. C. L. R. 146; Dig. 12, 4, 5.
RETRAXIT, practice. The act by which a plaintiff withdraws his. suit; it is so called from the fact that this was the principal word used when the law entries were in Latin.
2. A retraxit differs from a nonsuit, the former being the act of the plain-tiff himself, for it cannot even be entered by attorney; 8 Co. 58; 3 Salk.245; 8 P. S. R. 157, 163; and it must be after declaration filed; 3 Leon. 47; 8 P. S. R. 163; while the latter occurs in consequence of the neglect merely of the plaintiff. A retraxit also differs from a nolle prosequi. (q. v.) The effect of a retraxit is a bar to all actions of a like or a similar nature; Bac. Ab. Nonsuit, A; a nolle prosequi is not a bar even in a criminal prosecution. 2 Mass. R. 172. Vide 2 Sell. Pr. 338; Bac. Abr. Nonsuit; Com. Dig. Pleader, X 2. Vide article Judgment of retraxit.
RETRIBUTION. 1. That which is given to another to recompense him for what has been received from him; as a rent for the hire of a house. 2. A salary paid to a person for his services. 3. The distribution of rewards and punishments.
RETROCESSION, civil law. When the assignee of heritable rights conveys his rights back to the cedent, it is called a retrocession. Erskine, Prin. B. 3, t. 5, n. 1; Dict. do Jur. h. t.
RETROSPECTIVE. Looking backwards.
2. This word is usually applied to those acts of the legislature, which are made to operate upon some subject, contract or crime which existed before the passage of the acts, and they are therefore called retrorospective laws. These laws are generally unjust and are, to a certain extent, forbidden by that article in the constitution of the United States, which prohibits the passage of ex post facto laws or laws impairing contracts.
3. The right to pass retrospective laws, with the exceptions above mentioned, exists in the several states, according to their own constitutions, and become obligatory if not prohibited by the latter. 4 S. & R. 364; 3 Dall. R. 396; 1 Bay, R. 179; 7 John. R. 477; vide 4 S. & R. 403; 1 Binn. R. 601; 3 S. & R. 169; 2 Cranch. R. 272 2 Pet. 414; 8 Pet. 110; 11 Pet. 420; 1 Bald. R. 74; 5 Penn. St. R. 149. 4. An instance may be found in the laws of Connecticut. In 1795, the legislature passed a resolve, setting aside a decree of a court of probate disapproving of a will and granted a new hearing; it was held that the resolve not being against any constitutional principle in that state, was valid. 3 Dall. 386. And in Pennsylvania a judgment was opened by the act of April 1, 1837, which was holden by the supreme court to be constitutional. 2 Watts & Serg. 271.
5. Laws should never be considered as applying to cases which arose previously to their passage, unless the legislature have clearly declared such to be their intention. 12 L. R. 352 Vide Barringt. on the Stat. 466, n. 7 John. R. 477; 1 Kent, Com. 455; Tayl. Civil Law, 168; Code, 1, 14, 7; Bracton, lib. 4, fo. 228; Story, Cons. §1393; 1 McLean, Rep. 40; 1 Meigs, Rep. 437; 3 Dall. 391; 1 Blackf.R.193; 2 Gallis. R. 139; 1 Yerg. R. 360; 5 Yerg. R. 320; 12 S. & R. 330; and see Ex post facto.
RETURN, contracts, remedies. Persons who are beyond the sea are exempted from the operation of the statute of limitations of Pennsylvania, and of other states, till after a certain time has elapsed after their returning. As to what shall be considered a return, see 14 Mass. 203; 1 Gall. 342; 3 Johns. 263; 3 Wils. 145; 2 Bl. Rep. 723; 3 Littell's Rep. 48; 1 Harr. & Johns. 89, 350; 17 Mass. 180.
RETURN DAY. A day appointed by law when all writs are to be returned which have issued since the preceding return day. The sheriff is in general not required to return his writ until the return day. After that period he may be ruled to make a return.
RETURN OF WRITS, practice. A short account in writing, made by the sheriff, or other ministerial officer, of the manner in which he has executed a writ. Steph. on Pl. 24.
2. It is the duty of such officer to return all writs on the return day; on his neglecting to do so, a rule may be obtained on him to return the writ and, if he do not obey the rule, he may be attached for contempt. See 19 Vin. Ab. 171; Con]. Dig. Return; 2 Lilly's Abr. 476; Wood. b. 1, c. 7; 1 Penna. R. 497; 1 Rawle, R. 520; 3 Yeates, 17; 3 Yeates, 47; 1 Dall. 439.
REUS, civil law. This word has two different meanings. 1. A party to a suit, whether plaintiff or defendant; Reus est qui cum altero litem contestatem habet, sive legit, sive cum eo adum est. 2. A party to a contract; reus credendi is be to whom something is due, by whatever title it may be; reus debendi is he who owes, for whatever cause. Poth. Pand. lib. 50, h. t.
REVENDICATION, civil and French law. An action by which a man demands a thing of which he claims to be owner. It applies to immovables as well as movables; to corporeal or encorporeal things. Merlin, Repert. h. t.
2. By the civil law, he who has sold goods for cash or on credit may demand them back from the purchaser, if the purchase-money is not paid according to contract. The action of revendication is used for this purpose. See an attempt to introduce the principle of revendication into our law, in 2 Hall's Law Journal, 181.
3. Revendication, in another sense, corresponds, very nearly, to the stoppage in transitu (q. v.) of the common law. It is used in that sense in the Code de Commerce, art. 577. Revendication, says that article, can take place only when the goods sold are on the way to their place of destination, whether by land or water, and before they have been received into the warehouse of the insolvent, (failli,) or that of his factor or agent, authorized to sell them on account of the insolvent. See Dig. 14, 4, 15;Dig. 18, 1, 19, 53; Dig. 19, f, 11.
REVENUE. The income of the government arising from taxation, duties, and the like; and, according to some correct lawyers, under the idea of revenue is also included the proceeds of the sale of stocks, lands, and other property owned by the government. Story, Const. §877. Vide Money Bills. By revenue is also understood the income of private individuals and corporations.
REVERSAL, international law. First. A declaration by which a sovereign promises that he will observe a certain order, or certain conditions, which have been once established, notwithstanding any changes that may happen to cause a deviation therefrom; as, for example, when the French court, consented for the first time, in 1745, to grant to Elizabeth, the Czarina of Russia, the title of empress, exacted as a reversal, a declaration purporting that the assumption of the title of an imperial government, by Russia, should not dero-gate from the rank which France had held towards her. Secondly. Those letters are also termed reversals, Litterae Reversales, by which a sovereign declares that, by a particular act of his, he does not mean to prejudice a third power. Of this we have an example in history: formerly, the emperor of Germany, whose coronation, according to the golden ball, ought to have been solemnized at Aix-la-Chapelle, gave to that city when he was crowned elsewhere, reversals, by which he declared that such coronation took place without prejudice to its rights, and without drawing any consequences therefrom for the future.
TO REVERSE, practice. The decision of a superior court by which the judgment, sentence or decree of the inferior court is annulled.
2. After a judgment, sentence or decree has been rendered by the court below, a writ of error may be issued from the superior to the inferior tribunal, when the record and all proceedings are sent to the supreme court on the return to the writ of error. When, on the examination of the record, the superior court gives a judgment different from the inferior court, they are said to reverse the proceeding. As to the effect of a reversal, see 9 C. & P. 513 S, C. 38 E. C. L. Rep. 201.
REVERSION, estates. The residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him; it is also defined to be the return of land to the grantor, and Iiis heirs, after the grant is over. Co. Litt. 142, b.
2. The reversion arises by operation of law, and not by deed or will, and it is a vested interest or estate, and in this it differs from a remainder, which can never be limited unless by either deed or devise. 2 Bl. Comm. 175; Cruise, Dig. tit. 17; Plowd. 151; 4 Kent, Comm. 349; 19 Vin. Ab. 217; 4 Com. Dig. 27; 7 Com. Dig. 289: 1 Bro. Civil Law, 213 Wood's Inst. 151 2 Lill. Ab. 483. A reversion is said to be an incorporeal hereditament. Vide 4 Kent, Com. 354. See, generally, 1 Hill. Ab. c. 52, p. 418; 2 Bouv. Inst. n. 1850, et seq.
REVERSIONER, estates. One entitled to a reversion.
2. Although not in actual possession, the reversioner having a vested interest in the reversion, is entitled to his action for an injury done to the inheritance. 4 Burr. 2141. The reversioner is entitled to the rent, and this important incident passes with a grant or assignment of the reversion. It is not inseparable from it, and may be severed and excepted out of the grant by special words. Co. Litt. 143, a, 151, a, b Cruise, Digest, t. 17, s. 19.
REVERSOR, law of Scotland. A debtor who makes a wadset and to whom the right of reversion is granted. Ersk. Pr. L. Scotl. B. 2, t. 8, sect. 1. A reversioner. Jacob, L. D. h. t.
REVERTER. Reversion. A formedon in reverter is a writ which was a proper remedy when the donee in tail or issue died without issue and a stranger abated: or they who were seised by force of the entail discontinued the same. Bac. Ab. Formedon, A 3.
REVIEW, practice. A second examination of a matter. For example, by the laws of Pennsylvania, the courts having jurisdiction of the subject may grant an order for a view of a proposed road; the viewers make a report, which when confirmed by the court would authorize the laying out of the same. After this, by statutory provision, the parties may apply for a review, or second examination; and the last viewers may make a different report. For the practice of reviews in chancery, the reader is referred to Bill of Review, and the cases there cited.
REVIVAL, contracts. An agreement to renew the legal obligation of a just debt, after it has been barred by the act of limitation or lapse of time, is called its revival. Vide Promise.
REVIVAL, practice. The act by which a judgment, which has lain dormant or without any action upon it for a year and a day is, at common law, again restored to its original force.
REVIVE, practice. When a judgment is more than a day and a year old, no execution can issue upon it at common law; but till it has been paid, or the presumption arises from lapse of time, that it has been satisfied, it may be revived and have all its original force, which was merely suspended. This may be done by a scire facias, or an action of debt on the judgment. Vide Scire facias; Wakening.
REVIVOR. the name of a bill in chancery used to renew an original bill which for some reason has become inoperative. Vide Bill of Revivor.
REVOCATION. The act by which a person having authority, calls back or annuls a power, gift, or benefit, which had been bestowed upon another. For example, a testator may revoke his testament; a constituent may revoke his letter of attorney; a grantor may revoke a grant made by him, when he has reserved the power in the deed.
2. Revocations are expressed or implied. An express revocation of a will must be as formal as the will itself. 2 Dall. 289; 2 Yeates, R. 170. But this is not the rule in all the states. See 2 Conn. Rep. 67; 2 Nott & McCord, Rep. 485; 14 Mass. 208; 1 Harr. & McHenry, R. 409; Cam. & Norw. Rep. 174 2 Marsh. Rep. 17.
3. Implied revocations take place, by marriage and birth of a child, by the English law. 4 Johns. Ch. R. 506, and the cases there cited by Chancellor Kent. 1 Wash. Rep. 140; 3 Call, Rep. 341; Cooper's Just. 497, and the cases there cited. In Pennsylvania, marriage or birth of a child, is a revocation as to them. 3 Binn. 498. A woman's will is revoked by her subsequent marriage, if she dies "before her hushand. Cruise, Dig. tit. 38, c. 6, s. 51. 4. An alienation of the estate by the devisor has the same effect of revoking a will. 1 Roll. Ab. 615. See generally, as to revoking wills, Lovelass on Wills, oh. 3, p. 177 Fonbl. Eq. c. 2, s. 1; Robertson Wills, ch . 2, part 1.
5. Revocation of wills may be effected, 1. By cancellation or obliteration. 2. By a subsequent testamentary disposition. 3. By an express revocation contained in a will or codicil, or in any other distinct writing. 4. By the republication of a prior wili; by presumptive or implied revocation. Williams on Wills, 67; 3 Lom. on Ex'rs, 59. Vide Domat, Loix Civ. liv. 3, t. 1, s. 5.
6. The powers and authority of an attorney or agent may be revoked or deter-mined by the acts of the principal; by the acts of the attorney or agent; and by operation of law.
7. - 1. By the acts of the principal, which may be express or implied. An express revocation is made by a direct and formal and public declaration, or by an informal writing, or by parol. An implied revocation takes place when such circumstances occur as manifest the intention of the principal to revoke the authority; such, for example, as the appointment of another agent or attorney to perform acts which are incompatible with the exercise of the power formerly given to another; but this presumption arises only when there is such incompatibility, for if the original agent has a general authority, and the second only a special power, the revocation will only operate pro tanto. The performance by the principal himself of the act which he has authorized to be done by his attorney, is another example; as, if the authority be to collect a debt, and afterwards the principal receive it himself.
8. - 2. The renunciation of the agency by the attorney will have the same effect to determine the authority.
9. - 3. A revocation of an authority takes place by operation of law. This may be done in various ways: 1st. When the agency terminates by lapse of time; as, when it is created to endure for a year, it expires at the end of that period; or when a letter of attorney is given to transact the constituent's business during his absence, the power ceases on his return. Poth. du Mandat, n. 119; Poth. Ob. n. 500.
10. - 2d. When a change of condition of the principal takes place so that he is rendered incapable of performing the act himself, the power he has delegat-ed to another to do it must cease. Liverm. Ag. 306; 8 Wheat. R, 174. If an unmarried woman give a power of attorney and afterwards marry, the marriage does, ipso facto, operate as a revocation of the authority; 2 Kent, Com. 645, 3d edit. Story Bailm. §206; Story, Ag. §481; 5 East, R. 206; or if the principal become insane, at least after the establishment of the insanity by an inquisition. 8 Wheat. R. 174, 201 to 204. When the principal becomes a bankrupt, his power of attorney in relation to property or rights of which he was dives-ted by the bankruptcy, is revoked by operation of law. 2 Kent, Com. 644, 3d edit.; 16 East, R. 382.
11. - 3d. The death of the principal will also have the effect of a revocation of the authority. Co. Litt. 52; Paley, Ag. by Lloyd, 185; 2 Liverm. Ag. 301; Story, Ag. §488; Story, Bailm. §203; Bac. Ab. Authority, E; 2 Kent, Com. 454, 3d edit.; 3 Chit. Com. Law, 223.
12. - 4th. When the condition of the agent or attorney has so changed as to render him incapable to perform his obligation towards the principal. When a married woman is prohibited by her hushand from the exercise of an authority given to her, it thereby determines. When the agent becomes a bankrupt, his authority is so far revoked that he cannot receive any money on account of his principal; 5 B. & Ald. 645, 3d edit.; but for certain other purposes, the bankruptcy of the agent does not operate as a revocation. 3 Meriv. 322; Story, Ag. §486. The insanity of the agent would render him unfit to act in the business of the agency, and would determine his authority.
13. - 5th. The death of the agent puts an end to the agency. Litt. §66.
14. - 6th. The extinction of the subject-matter of the agency, or of the principal's power over it, or the complete execution of the trust confided to the agent, will put an end to and determine the agency.
15. It must be remembered that an authority, coupled with an interest, cannot be revoked either by the acts of the principal, or by operation of law. 2 Mason's R. 244, 342; 8 Wheat. R. 170; 1 Pet. R. 1; 2 Esp. R. 565; 10 B. & Cr. 731; Story Ag. §477, 483.
16. It is true in general, a power ceases with the life of the person making it; but if the interest or estate passes with the power, and vests in the person by whom the power is exercised, such person acts in his own name. The es-tate being in him, passes from him by a conveyance in his own name. He is no longer a substitute acting in the name of another, but is the principal acting in his own name in pursuance of powers which limit the estate. The legal reason which limits the power to the life of the person giving it exists no long-er, and the rule ceases with the reason on which it is founded. 8 Wheat. R. 174.
17. The revocation of the agent is a revocation of any substitute he may have appointed. Poth. Mandat, n. 112; 2 Liverm. Ag. 307; Story, Ag. §469. But in some cases, as in the case of the master of a ship, his death does not revoke the power of the mate whom he had appointed; and in some cases of public appointments, on the death or removal of the principal officer, the depu-ties appointed by him are, by express provisions in the laws, autho rized to continue in the performance of their duties.
18. The time when the revocation takes effect must be considered, first, with regard to the agent, and secondly, as it affects third persons. 1. When the revocation can be lawfully made, it takes effect, as to the agent, from the moment it is communicated to him. 2. As to third persons, the revocation has no effect until it is made known to them; if, therefore, an agent, knowing of the revocation of his authority, deal with a third pers6n in the name of his late principal, when such person was ignorant of the revocation, both the agent and the principal will be bound by his acts. Story, Ag. §470; 2 Liverm. Ag. 306; 2 Kent, Com. 644, 3d edit.; Paley, Ag. by Lloyd, 108, 570; Story, Bailm. §208; 5 T. R. 215. A note or bill signed, accepted or indorsed by a clerk, after his discharge, who had been authorized to sign, indorse, or accept bills and notes for his principal while in his employ, will be binding upon the latter, unless notice has been given of his discharge and the revocation of his authority. 3 Chit. Com. Law, 197.
REVOCATOR. Recalled. This word is used when a judgment is annulled for an error in fact, the judgment is then said to be recalled, revocatur; and not reversed, which is the word used when a judgment is annulled for an error in law. Tidd's Pr. 1126.
REVOLT, crim. law. The act of congress of April 30, 1790, s. 8, 1 Story's L. U. S. 84, punishes with death any seaman who shall lay violent hands upon his commander, thereby to hinder or prevent his fighting in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship. What is a revolt is not defined in the act of congress nor by the common law; it was therefore contended, that it could not be deemed an offence for which any person could be punished. 1 Pet. R. 118.
2. In a case which occurred in the circuit court for the eastern district of Pennsylvania, the defendants were charged with an endeavour to make a revolt. The judges sent up the case to the supreme court upon a certificate of division of opinion of the judges; as to the definition of the word revolt. 4 W. C. C. R. 528. The opinion of the supreme court was delivered by Washington, J., and is in these words "This case comes before the court upon a certificate of division of the opinion of the judges of the circuit court for the eastern district of Pennsylvania, upon the following point assigned by the defendants as a reason in arrest of judgment, viz. that the act of congress does not define the offence of endeavoring to make a revolt; and it is not competent to the court to give a judicial definition of an offence heretofore unknown. "This court is of opinion that although the act of congress does not define this offence, it is nevertheless, competent to the court to give a judicial definition of it. We think that the offence consists in the endeavor of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of her commander, with intent to remove him from his command; or against his will to take possession of the vessel by assuming the government and navigation of her; or by transferring their obedience from the lawful commander to some other person." 11 Wheat. R. 417. Vide 4 W. C. C. R. 528, 405; Mason's R. 147 4 Mason, R. 105; 4 Wash. C. C. R. 548 1 Pet. C. C. R. 213; 5 Mason, R. 464; 1 Sumn. 448; 3 Wash. C. C. R. 525; 1 Carr. & Kirw. 429.
3. According to Wolff, revolt and rebellion are nearly synonymous; he says it is the state of citizens who unjustly take up arms against the prince or government. Wolff, Dr. de la Nat. 1232.
REWARD. An offer of recompense given by authority of law for the performance of some act for the public good; which, when the act has been performed, is to be paid; or it is the recompense actually paid.
2. A reward may be offered by the government or by a private person. In criminal prosecutions, a person may be a competent witness although he expects, on conviction of the prisoner, to receive a reward. 1 Leach, 314, n 9 Barn. & Cresw. 556;S. C. Eng. C. L. R. 441; 1 Leach, 134; 1 Hayw. Rep. 3 1 Root, R. 249; Stark. Ev. pt. 4, p. 772, 3; Roscoe's Cr. Ev. 104; 1 Chit. Cr. Law, 881; Hawk. B. 2, c. 12, s. 21 to 38; 4 Bl. Com. 294; Burn's Just. Felony, iv. See 6 Humph. 113.
3. By the common law, informers, who are entitled under penal statutes to part of the penalty, are not in general competent witnesses. But when a stat-ute can receive no execution, unless a party interested be a witness, then it seems proper to admit him, for the statute must not be rendered ineffectual for want of proof. Gilb. 114. In many acts of the legislature there is a provision that the informer shall be a witness, notwithstanding the reward. 1 Phil. Ev. 92, 99.
RHODE ISLAND. The name of one of the original states of the United States of America. This state was settled by emigrants from Massachusetts, who assumed the government of themselves by a voluntarry association, which was soon discovered to be insufficient for their protection. In 1643, a charter of incorporation of Providence Plantations was obtained; and in 1644, the two houses of parliament, during the forced absence of Charles the First, granted a char-ter for the incorporation of the towns of Providence, Newport and Portsmouth, for the absolute government of themselves, according to the laws of England. Soon after the restoration of Charles the Second, in July, 1663, the inhabi-tants obtained a new charter from the crown. Upon the accession of James, the inhabitants were accused of a violation of their charter; and a quo warranto was filed against them, when they resolved to surrender it. In 1686, their government was dissolved, and Sir Edward Andros assumed, by royal authority, the administration of the colony. The revolution of 1688 put an end to his power and the colony immediately resumed its charter, the powers of which, with some interruptions, it continued to maintain and exercise down to the period of the American Revolution.
2. This charter remained as the fundamental law of the state until the first Tuesday of May, one thousand eight hundred and forty-three. A convention of the people assembled in November, 1842, and adopted a constitution which went into operation in May, 1843, as above mentioned.
3. By the third article of the constitution the powers of the government are distributed into three departments; the legislative, the executive, and the judicial.
4. - §1. The fourth article regulates the legislative power as follows, to wit: Sect. 1. This constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void. The general assembly shall pass all laws necessary to carry this constitution into effect.
5. - Sect. 2. The legislative power, under this constitution, shall be vested in two houses, the one to be called the senate, the other the house of representatives; and both together the, general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. The style of their laws shall be, It is enacted by the general assembly as follows.
6. - Sect. 3. There shall be two sessions of the general assembly holden annually; one at Newport, on the first Tuesday of May, for the purposes of election and other business; the other on the last Monday of October, which last session shall be holden at South Kingstown once in two years, and the intermediate years alternately at Bristol and East Greenwich; and an adjournment for the October session shall be holden annually at Providence.
7. - Sect. 4. No member of the general assembly shall take any fee, or be of counsel in any case pending before either house of the general assembly, under penalty of forfeiting his seat, upon proof thereof to the satisfaction of the house of which he is a member.
8. - Sect. 5. The person of every member of the general assembly shall be exempt from arrest and his estate from attachment, in any civil action, during the session of the general assembly, and two days before the commencement, and two days after the termination thereof; and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.
9. - Sect. 6. Each house shall be the judge of the elections and qualifications of its members; and a majority shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may compel the atten-dance of absent members, in such manner, and under such penalties, as may be prescribed by such house or by law. The organization of the two houses may be regulated by law, subject to the limitations contained in this constitution.
10. - Sect. 7. Each house may determine its rules of proceeding, punish contempts, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member; but not a second time for the same cause.
11. - Sect. 8. Each house shall keep a journal of its proceedings. The yeas and nays of the members of either house, shall, at the desire of one-fifth of those present, be entered on the journal.
12. - Sect. 9. Neither house shall, during a session, without the consent of the other, adjourn for more than two days, nor to any other place than that in which they may be sitting.
13. - Sect. 10. The general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution.
14. - Sect. 11. The senators and representatives shall receive the sum of one dollar for every day of attendance, and eight cents per mile for travelling expenses in going to and returning, from the general assembly. The general assembly shall regulate the compensation of the governor and all other officers, subject to the limitations contained in this constitution.
15. - Sect. 12. All lotteries shall hereafter be prohibited in this state, except those already authorized by the general assembly.
16. - Sect. 13. The general assembly shall have no power hereafter, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion, nor shall they in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with this state by the government of the United States.
17. - Sect. 14. The assent of two-thirds of the members elected to each house of the general assembly shall be required to every bill appropriating the public money or property for local or private purposes.
18. - Sect. 15. The general assembly shall, from time to time, provide for making new valuations of property for the assessment of taxes, in such manner as they may deem best. A new estimate of such property shall be taken before the first direct state tax, after the adoption of this constitution, shall be assessed.
19. - Sect. 16. The general assembly may provide by law for the continuance in office of any officers of annual election or appointment, until other persons are qualified to take their places.
20. - Sect. 17. Hereafter when any bill shall be presented to either house of the general assembly, to create a corporation for any other than for religious, literary or charitable purposes, or for a military or fire company, it shall be continued until another election of members of the general assembly shall have taken place, and such public notice of the pendency thereof shall be given as may be required by law.
21. - Sect 18. It shall be the duty of the two houses upon the request of either, to join in grand committee for the purpose of electing senators in congress, at such times and in such manner as may be prescribed by law for said elections.
22. Having disposed of the rules which regulate both houses, a detailed statement of the powers of the house of representatives will here be given.
23. - 1. The house of representatives is regulated by the fifth article as follows; Sect. 1. The house of representatives shall never exceed seventy-two members, and shall be constituted on the basis ofpopulation, always allowing one representative for a fraction, exceeding half the ratio; but each town or city shall always be entitled to at least one member; and no town or city shall have more than one-sixth of the whole number of members to which the house is hereby limited. The present ratio shall be one representative to every fifteen hundred and thirty inhabitants, and the general assembly may, after any new census taken by the authority of the United States or of this state, re-apportion the representation by altering the ratio; but no town or city shall be divided into districts for the choice of representatives.
25. - Sect. 2. The house of representatives shall have authority to elect its speaker, clerks and other officers. The senior member from the town of Newport, if any be present, shall preside in the organization of the house.
26. - 2. The senate is the subject of the sixth article, as follows: Sect. 1. The senate shall consist of the lieutenant-governor and of one senator from each town or city in the state.
27. - Sect. 2. The governor, and, in his absence the lieutenant-governor, shall preside in the senate and in grand committee. The presiding officer of the senate and grand committee shall have a right to vote in case of equal division, but not otherwise.
28. Sect. 3. If, by reason of death, resignation, absence, or other cause, there be no governor or lieutenant governor present, to preside in the senate, the senate shall elect one of their own members to preside during such absence or vacancy, and until such election is made by the senate, the secretary of state shall preside.
29. - Sect. 4. The secretary of state shall, by virtue of his office, be secretary of the senate, unless otherwise provided by law; and the senate may elect such other officers as they may deem necessary.
30. - §2. The seventh article regulates the executive power. It provides: Sect. 1. The chief executive power of this state shall be vested in a governor, who, together with a lieutenant governor, shall be annually elected by the people.
31. - Sect. 2. The governor shall take care that the laws be faithfully executed.
32. - Sect. 3. He shall be captain general and commander-in-chief of the military and naval force of this state, except when they shall be called in
to the service of the United States.
33. - Sect. 4. He shall have power to grant reprieves after conviction, in all cases except those of impeachment, until the end of the next session of the general assembly.
34. - Sect. 5. He may fill vacancies in office not otherwise provided for by this constitution, or by law, until the same shall be filled by the general assembly, or by the people.
35. - Sect. 6. In case of disagreement between the two houses of the general assembly, respecting the time or place of adjournment, certified to him by either, he may adjourn them to such time and place as he shall think proper; provided that the time of adjournment shall not be extended beyond the day of the next stated session.
36. - Sect. 7. He may, on extraordinary occasions, convene the general assembly at any town or city in this state, at any time not provided for by law; and in case of danger from the prevalence of epidemic or contagious disease, in the place in which the general assembly are by law to meet, or to which they may have been adjourned; or for other urgent reasons, he may, by proc-lamation, convene said assembly, at any other place within this state.
37. - Sec. 8. All commissions shall be in the name and by the authority of the state of Rhode Island and Providence Plantations; shall be sealed with the state seal, signed by the governor and attested by the secretary.
38. - Sect. 9. In case of vacancy in the office of governor, or of his inability to serve, impeachment, or absence from the state, the lieutenant governor shall fill the office of governor and exercise the powers and authority appertaining thereto, until a governor is qualified to act, or until the office is filled at the next annual election.
39. - Sect. 10. If the offices of governor and lieutenant governor be both vacant by reason of death, resignation, impeachment, absence, or otherwise, the person entitled to preside over the senate for the time being, shall in like manner fill the office of governor during such absence or vacancy.
40. - Sec. 11. The compensation of the governor and lieutenant governor shall be established by law, and shall not be diminished during the term for which they are elected.
41. - Sect. 12. The duties and powers of the secretary, attorney general, and general treasurer, shall be the same under this constitution as are now established, or as from time to time may be prescribed by law.
42. - §3. The judicial power is regulated by the tenth article as follows: Sect. 1. The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may from time to time, ordain and establish.
43. - Sect. 2. The several courts shall have such jurisdiction as, may from time to time be prescribed by law. Chancery powers may be conferred on the supreme court, but on no other court to any greater extent than is now provided by law.
44. - Sect. 3. The judges of the supreme court shall in all trials, instruct the jury in the law. They shall also give their written opinion upon any question of law whenever requested by the governor, or by either house of the general assembly.
45. - Sect. 4. The judges of the supreme court shall be elected by the two houses in grand committee. Each judge shall hold his office until his place be declared vacant by a resolution of the general assembly to that effect; which resolution shall be voted for by a majority of all the members elected to the house in which it may originate, and be concurred in by the same majority of the other house. Such resolution sliall not be entertained at any other than the annual session for the election of public officers: and in default of the passage thereof at said session, the judge shall hold his place as herein provided. But a judge of any court shall be removed from office, if, upon impeachment, he shall be found guilty of any official misdemeanor.
46. - Sect. 5. In case of vacancy by death, resignation, removal from the state or from office, refusal or inability to serve, of any judge of the supreme court, the office may be filled by the grand committee, until the next annual election, and the judge then elected shall hold his office as before provided. In cases of impeachment, or temporary absence or inability, the governor may appoint a person to discharge the duties of the office during the vacancy caused thereby.
47. - Sect. 6. The judges of the supreme court shall receive a compensation for their services, which shall not be diminished during their continuance in office.
48. - Sect. 7. The towns of New Shoreham and Jamestown may continue to elect their wardens as heretofore. The other towns and the city of Providence, may elect such number of justices of the peace resident therein, as they may deem proper. The jurisdiction of said justices and wardens shall be regulated by law. The justices shall be commissioned by the governor.
RHODIAN LAW. A code of marine laws established by the people of Rhodes, bears this name. Vide Law Rhodian.
RIAL OF PLATE, and RIAL OF VELLON, comm. law. Denominations of money of Spain.
2. In the ad valorem duty upon goods, &c., the former are computed at ten cents, and the latter at five cents each. Act of March 2, 1799, s. 61, 1 Story's Laws U. S. 626. Vide Foreign Coins.
RIBAUD. A rogue; a vagrant. It is not used.
RIDER, practice, legislation. A schedule or small piece of paper or parchment added to some part of the record; as, when, on the reading of a bill in the legislature, a new clause is added, this is tacked to the bill on a separate piece of paper, and is called a rider.
RIDING, Eng. law. An ascertained district, part of a county. This term has the same meaning in Yorkshire which division has in Lincolnshire. 4 T. R. 459.
RIEN. This is a French word which signifies nothing. It has generally this meaning; as, rien in arrere; rien passe per le fait, nothing passes by the deed; rien per descent, nothing by descent; it sometimes signifies not, as rien culpable, not guilty. Doct. Plac. 435.
RIEN EN ARRERE, pleading. Nothing in arrear; nothing remaining due and unpaid.
2. The plea in an action of debt for rent, may be rien en arrere. This is a good general issue. Cowp. 588: Bac. Ab. Pleas, I; 12 Saund. 297, n. 1; 2 Lord Raym. 1503; 2 Chit. Pl. 486; 4 Bouv. Inst. n. 3576.
RIENS PASSA PAR LE FAIT. The name of a plea; it signifies that nothing pass-ed by the deed; for example, when a deed is acknowledged in court, a man cannot plead non est factum, because the act was done in court, which cannot be denied; but when the deed has been acknowledged in a court not having jurisdiction, the party may avoid the effect or operation of the deed by pleading riens passa par le fait, for this plea does not impeach the court where it was acknowledged. Bac. Ab. Evidence F; 1 Gilb. ET. by Lofft, 326.
RIGHT. This word is used in various senses: 1. Sometimes it signifies a law, as when we say that natural right requires us to keep our promises, or that it commands restitution, or that it forbids murder. In our language it is seldom used in this sense. 2. It sometimes means that quality in our actions by which they are denominated just ones. This is usually denominated rectitude. 3. It is that quality in a person by which he can do certain actions, or possess certain things which belong to him by virtue of some title. In this sense, we use it when we say that a man has a right to his estate or a right to defend himself. Ruth, Inst. c. 2, §1, 2, 3; Merlin,; Repert. de Jurisp. mot Droit. See Wood's Inst. 119.
2. In this latter sense alone, will this word be here considered. Right is the correlative of duty, for, wherever one has a right due to him, some other must owe him a duty. 1 Toull. n. 96.
3. Rights are perfect and imperfect. When the things which we have a right to possess or the actions we have a right to do, are or may be fixed and determinate, the right is a perfect one; but when the thing or the actions are vague and indeterminate, the right is an imperfect one. If a man demand his property, which is withheld from him, the right that supports his demand is a perfect one; because the thing demanded is, or may be fixed and determinate.
4. But if a poor man ask relief from those from whom he has reason to expect it, the right, which supports his petition, is an imperfect one; because the relief which he expects, is a vague indeterminate, thing. Ruth. Inst. c. 2, §4; Grot. lib. 1, c. §4.
5. Rights are also absolute and qualified. A man has an absolute right to recover property which belongs to him; an agent has a qualified right to recover such property, when it had been entrusted to his care, and which has been unlawfully taken out of his possession. Vide Trover.
6. Rights might with propriety be also divided into natural and civil rights but as all the rights which man has received from nature have been modified and acquired anew from the civil law, it is more proper, when considering their object, to divide them into political and civil rights.
7. Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government. These political rights are fixed by the constitution. Every citizen has the right of voting for public officers, and of being elected; these are the political rights which the humblest citizen possesses.
8. Civil rights are those which have no relation to the establishment, support, or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like. It will be observed that every one, unless deprived of them by a sen-tence of civil death, is in the enjoyment of his civil rights, which is not the case with political rights; for an alien, for example, has no political, although in the full enjoyment of his civil rights.
9. These latter rights are divided into absolute and relative. The absolute rights of mankind may be reduced to three principal or primary articles: the right of personal security, which consists in a person's legal and uninter-rupted enjoyment of his life, his limbs, his body, his health, and his reputation; the right of personal liberty, which consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's inclination may direct, without any restraint, unless by due course of law; the right of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. 1 Bl. 124 to 139.
10. The relative rights are public or private: the first are those which subsist between the people and the government, as the right of protection on the part of the people, and the right of allegiance which is due by the people to the government; the second are the reciprocal rights of hushand and wife, parent and child, guardian and ward, aud master and servant.
11. Rights are also divided into legal and equitable. The former are those where the party has the legal title to a thing, and in that case, his remedy for an infringement of it, is by an action in a court of law. Although the person holding the legal title may have no actual interest, but hold only as trustee, the suit must be in his name, and not in general, in that of the cestui que trust. 1 East, 497 8 T. R. 332; 1 Saund. 158, n. 1; 2 Bing. 20. The latter, or equitable rights, are those which may be enforced in a court of equity by the cestui que trust. See, generally, Bouv. Ins t. Index, h. t. Remedy.
RIGHT OF DISCUSSION, Scottish law. The right which the cautioner (surety) has to insist that the creditor shall do his best to compel the performance of the contract by the principal debtor, before he shall be called upon. 1 Bell's Com. 347, 5th ed. Vide 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30 and the articles Surety. Suretyship.
RIGHT OF DIVISION, Scottish law. The right which each of several cautioners (sureties) has to refuse to answer for more than his own share of the debt. To entitle the cautioner to this right, the other cautioners must be solvent, and there must be no words in the bond to exclude it. 1 Bell's Com. 347, 5th ed.
RIGHT OF HABITATION. By this term, in Louisiana, is understood the right of dwelling gratuitously in a house, the property of another. Civ. Code, art. 623; 3 Toull. ch. 2, p. 325; 14 Toull. n. 279, p. 330; Poth. h. t., n. 22-25.
RIGHT OF RELIEF, Scottish law. The right which the cautioner (surety) has against the principal debtor when he has been forced to pay his debt. 1 Bell's Com. 347, 5th ed.
RIGHT PATENT. The name of an ancient writ, which Fitzherbert says, "ought to be brought of lands and tenements, and not of an advowson, or of common, and lieth only of an estate of fee simple, and not for him who has a lesser estate, as tenant in tail, tenant in frank marriage, or tenant for life." F. N. B. 1.
RIGHT, WRIT OF. Breve de recto. Vide Writ of light.
RING DROPPING, crim. law. This phrase is applied in England to a trick frequently practised in committing larcenies. It is difficult to define it; it will be sufficiently exemplified by the following cases. The prisoner, with some accomplices, being in company with the prosecutor, pretended to find a valuable ring wrapped up in a paper, appearing to be a jeweller's receipt for "a rich brilliant diamond ring." They offered to leave the ring with the prosecutor, if he would deposit some money and his watch as a security. The prosecutor having accordingly laid down his watch and money on a table, was beckoned out of the room by one of the confederates, while the others took away his watch and money. This was held to amount to a larceny. 1 Leach, 238; 2 East, P. C. 678. In another case under similar circumstances, the prisoner procured from the prosecutor twenty guineas, promising to return them the next morning, and leaving the false jewel with him. Thiswas also held to be larceny. 1 Leach, 314; 2 East, P. C. 679. In these cases the prosecutor had no intention of parting with the property in the money or goods stolen. It was taken, in the first case while the transaction was proceeding, without his knowledge; and, in the last, under the promise that it should be returned. Vide 2 Leach, 640.
RINGING THE CHANGE, crim. law. A trick practised by a criminal, by which, on receiving a good piece of money in payment of an article, he pretends it is not good, and, changing it, returns to the buyer a counterfeit one, as in the following case: The prosecutor having bargained with the prisoner, who was selling fruit about the streets, to have five apricot's for sixpence, gave him a good shilling to change. The prisoner put the shilling into his mouth, as if to bite it in order to try its goodness, and returning a shilling to the prosecutor, told him it was a bad one. The prosecutor gave him another good shilling which he also affected to bite, and then returned another shilling, saying it was a bad one. The prosecutor gave him another good shilling with which he practised this trick a third time the shillings returned by him being in every respect, bad. 2 Leach, 64.
2. This was held to be an uttering of false money. 1 Russ. on Cr. 114.
RIOT, crim. law. At common law a riot is a tumultuous disturbance of the peace, by three persons or more assembling together of their own authority, with an intent, mutually to assist each other against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.
2. In this case there must be proved, first, an unlawful assembling; for if a number of persons lawfully met together; as, for example, at a fire, in a theatre or a church, should suddenly quarrel and fight, the offence is an affray and not a riot, because there was no unlawful assembling; but if three or more being so assembled, on a dispute occurring, they form into parties with promises of mutual assistance, which promises may be express, or implied from the circumstances, then the offence will no longer be an affray, but a riot; the unlawful combination will amount to an assembling within the meaning of the law. In this manner any lawful assembly may be converted into a riot. Any one who joins the rioters after they have actually commenced, is equally guilty as if he had joined them while assembling.
3. Secondly, proof must be made of actual violence and force on the part of the rioters, or of such circumstances as have an apparent tendency to force and violence, and calculated to strike terror into the public mind. The definition requires that the offenders should assemble of their own authority, in order to create a riot; if, therefore, the parties act under the authority of the law, they may use any necessary force to enforce their mandate, without committing this offence.
4. Thirdly, evidence must be given that the defendants acted in the riot, and were participants in the disturbance. Vide 1 Russ. on Cr. 247 Vin. Ab. h. t.; Hawk. c. 65, s. 1, 8, 9; 3 Inst. 176; 4 Bl. Com. 146 Com. Dig. h. t.; Chit. Cr. Law, Index, h. t. Roscoe, Cr. Ev. h. t.
RIOTOUSLY, pleadings. A technical word properly used in an indictment for a riot, and ex vi termini, implies violence. 2 Sess. Cas. 13; 2 Str. 834; 2 Chit. Cr. Law, 489.
RIPA. The bank of a river, or the place beyond which the waters do not in their natural course overflow.
2. An extraordinary overflow does not change the banks of the river. Poth. Pand. lib. 50, h. t. See Banks of rivers; Riparian proprietors; Rivers.
RIPARIAN PROPRIETORS, estates. This term, used by the civilians, has been adopted by the common lawyers. 4 Mason's Rep. 397. Those who own the land bounding upon a water course, are so called.
2. Such riparian proprietor owns that portion of the bed of the river (not navigable) which is adjoining his land usque ad filum aquce; or, in other words, to the thread or central line of the stream. Harg. Tr. 5; Holt's R. 499; 3 Dane's Dig. 4; 7 Mass. R. 496; 5 Wend. R. 423; 3 Caines, 319 2 Conn. 482; 20 Johns. R. 91; Angell, Water Courses, 3 to 10; 9 Porter, R. 577: Kames, Eq. part 1, c. 1, s. 1; 26 Wend. R. 404; 11 Stanton, 138; 4 Hill, 369. The proprietor of land adjoining a navigable river has an exclusive right to the soil, between high and low water marks, for the purpose of erecting wharves or buildings thereon. 7 Conn. 186. But see 1 Pennsyl. 462. Vide River.
RIPUARIAN LAW. A code of laws of the Franks, who occupied the country upon the Rhine, the Meuse and Scheldt, who were collectively known by the name Ripuarians, and their laws as Ripuarian law.
RISK. A danger, a peril to which a thing is exposed. The subject will be divided by considering, 1. Risks with regard to insurances. 2. Risks in the contracts of sale, barter, &c.
2. - §1. In the contract of insurance, the insurer takes upon him the risks to which the subject of the insurance is exposed, and agrees to indemnify the insured when a loss occurs. This is equally the case in marine and terrestrial insurance. But as the rules which govern these several contracts are not the same, the subject of marine risks will be considered, and, afterwards, of terrestrial risks.
3. - 1st. Marine risks are perils which are incident to a sea voyage; 1 Marsh. Ins. 215; or those fortuitous events which may happen in the course of the voyage. Poth. Contr. d'assur. n. 49; Pardes. Dr. Com. n. 770. It will be proper to consider, 1. Their nature. 2. Their duration.
4. - 1. The nature of the risks usually insured against. These risks may be occasioned by storms, shipwreck, jetsom, prize, pillage, fire, war, reprisals, detention by foreign governments, contribution to losses experienced for the common benefit, or for expenses which would not have taken place if it had not been for such events. But the insurer may by special contract limit his responsibility for these risks. He may insure against all risks, or only against enumerated risks; for the benefit of particular persons, or for whom it may concern. 2 Wash. C. C. R. 346; 1 John. Cas. 337; 2 John. Cas. 480 1 Pet. 151 2 Mass.,365; 8 Mass. 308. The law itself has made some exceptions founded on public policy, which require that in certain cases men shall not be permitted to protect themselves against some particular perils by insurance; among these are, first, that no man can insure any loss or damage proceeding directly from his own fault. 1 John. Cas. 337; Poth. h. t. n. 65; Pard. h. t. n. 771; Marsh. Ins. 215. Secondly, nor can be insure risks or perils of the sea, upon a trade forbidden by the laws. Thirdly, the risks excluded by the usual memorandum (q. v.) contained in the policy. Marsh. Ins. 221.
5. As the insurance is upon maritime risks, the accidents must have happened on the sea, unless the agreement include other risks. The loss by accidents which might happen on land in the course of the voyage, even when the unloading may have been authorized by the policy, or is required by local regulations, as where they are necessary for sanitary measures, is not borne by the insurer. Pard. Dr. Com. n. 770.
6. - 2. As to the duration of the risk. The commencement and end of the risk depend upon the words of the policy. The insurer may take and modify what risks he pleases. The policy may be on a voyage out, or a voyage in, or it may be for part of the route, or for a limited time, or from port to port. See 3 Kent, Com. 254; Pard. Dr. Com. n. 775; Marsh. 246; 1 Binn. 592. The duration of the risk on goods is considered in Marsh. Ins. 247 a; on ships, p. 280; on freight, p. 278, and 12 Wheat. 383.
7. - 2d. In insurances against fire, the risks and losses insured against, are all losses or damages by fire; but, as in cases of marine insurances, this may be limited as to the things insured, or as to the cause or occasion of the accident, and many policies exclude fires caused by a mob or the enemies of the commonwealth. The duration of thepolicy is Iimited by its own provisions.
8. - 3d. In insurances on lives, the risks are the death of the party from whatever cause, but in general the following risks are excepted, namely: 1. Death abroad or in a district excluded by the terms of the policy. 2. Entering into the naval or military service without the consent of the insurer. 3. Death by suicide. 4. Death by duelling. 5. Death by the hands of justice. See Insurance on lives. The duration of the risks is limited by the terms of the policy.
9. - §2. As a general rule, whenever the sale has been completed; the risk of loss of the things sold is upon the buyer; but until it is complete, and while something remains to be done by either party, in relation to it, the risk is on the seller; as, if the goods are to be weighed or measured. See Sale.
10. In sales, the risks to which property is exposed and the loss which may occur, before the contract is fully complete, must be borne by him in whom the title resides: when the bargain, therefore, is made and rendered binding by giving earnest, or by part payment, or part delivery, or by a compliance with the requisitions of the statute of frauds, the property, and with it the risk, attaches to the purchaser. 2 Kent, Com. 392.
11. In Louisiana, as soon as the contract of sale is completed, the thing sold is at the risk of the buyer, but with the following modifications: Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator, and if through his want of care, the thing is de-stroyed, or its value diminished, the seller is responsible for the loss. He is released from this degree of care, when the buyer delays obtaining the possession: but he is still liable for any injury which the thing sold may sus-tain through gross neglect on his part. If it is the seller who delays to de-liver the thing, and it be destroyed, even by a fortuitous event, it is be who sustains the loss, unless it appears that the fortuitous event would equally have occasioned the destruction of the thing in the buyer's possession, after delivery. Art. 2442-2445. For the rules of the civil law on this subject, see Inst. 2, 1, 41; Poth. Contr. de Vente, 4eme partie, n. 308, et seq.
RIVER. A natural collection of waters, arising from springs or fountains, which flow in a bed or canal of considerable width and length, towards the sea.
2. Rivers may be considered as public or private.
3. Public rivers are those in which the public have an interest.
4. They are either navigable, which, technically understood, signifies such rivers in which the tide flows; or not navigable. The soil or bed of such a navigable river, understood in this sense, belongs not to the riparian proprietor, but to the public. 3 Caines' Rep. 307; 10 John. R. 236; 17 John. R. 151; 20 John. R. 90; 5 Wend. R. 423; 6 Cowen, R. 518; 14 Serg. & Rawle, 9; 1 Rand. Rep. 417; 3 Rand. R. 33; 3 Greenl. R. 269; 2 Conn. R. 481; 5 Pick. 199.
5. Public rivers, not navigable, are those which belong to the people in general, as public highways. The soil of these rivers belongs generally, to the riparian owner, but the public have the use of the stream, and the authors of nuisances and impediments over such a stream are indictable. Ang. on Water Courses, 202; Davies' Rep. 152; Callis on Sewers, 78; 4 Burr. 2162.
6. By the ordinance of 1787, art. 4, relating to the north-western territory, it is provided that the navigable waters, leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free. 3 Story, L. U. S. 2077.
7. A private river, is one so naturally obstructed, that there is no passage for boats; for if it be capable of being so navigated, the public may use its waters. 1 M'Cord's Rep. 580. The soil in general belongs to the riparian proprietors. (q. v.) A river, then, may be considered, 1st. As private, in the case of shallow and obstructed streams. 2d. As private property, but subject to public use, when it can be navigated; and, 3d. As public, both with regard to its use and property. Some rivers possess all these qualities. The Hudson is mentioned as an instance; in one part it is entirely private property; in another the public have the use of it; and it is public property from the mouth as high up as the tide flows. Ang. Wat. Co. 205, 6.
8. In Pennsylvania, it has been held that the great rivers of that state, as the Susquehanna, belong to the public, and that the riparian proprietor does not own the bed or canal. 2 Binn. R. 75; 14 Serg. & Rawle, 71. Vide, generally, Civ. Code of Lo. 444; Bac. Ab. Prerogatives, B 3; 7 Com. Dig. 291; 1 Bro. Civ. Law, 170; Merl. Repert, h. t.; Jacobsen's Sea Laws, 417; 2 Hill. Abr. c. 13; 2 Fairf. R. 278 3 Ohio Rep. 496; 6 Mass. R. 435; 15 John. R. 447; 1 Pet. C. C. Rep. 64; 1 Paige's Rep. 448; 3 Dane's R. 4; 7 Mass. Rep. 496; 17 Mass. Rep. 289; 5 Greenl. R. 69; 10 Wend. R. 260; Kames, Eq. 38; 6 Watts & Serg. 101. As to the boundaries of rivers, see Metc. & Perk. Dig. Boundaries, IV.; as to the grant of a river, see 5 Cowen, 216; Co. Litt. 4 b; Com. Dig. Grant, E 5.
RIX DOLLAR. The name of a coin. The rix dollar of Bremen, is deemed as money of account, at the custom-house, to be of the value of seventy-eight and three quarters cents. Act of March 3, 1843. The rix dollar is computed at one hundred cents. Act of March 2, 1799, s. 61. Vide Foreign coins.
RIXA, civil law. A dispute; a quarrel. Dig. 48, 8, 17.
RIXATRIX. A common scold. (q. v.)
ROAD. A passage through the country for the use of the people. 3 Yeates, 421.
2. Roads are public or private. Public roads are laid out by public author-ity, or dedicated by individuals to public use. The public have the use of such roads, but the owner of the land over which they are made and the owners of land bounded on the highway, have, prima facie, a fee in such highway, ad medium filum vice, subject to the easement in favor of the public. 1 Conn. 193; 11 Conn. 60; 2 John. 357 15 John. 447. But where the boundary excludes the highway, it is, of course, excluded. 11 Pick. 193. See 13 Mass. 259. The proprietor of the soil, is therefore entitled to all the fruits which grow by its side; 16 Mass. 366, 7; and to all the mineral wealth it contains. 1 Rolle, 392, 1. 5; 4 Day, R. 328; 1 Conn'. Rep, 103; 6 Mass. R. 454; 4 Mass, R. 427; 15 Johns. Rep. 447, 583; 2 Johns. R. 357; Com. Dig. Chimin, A 2; 6 Pet. 498; 1 Sumn. 21; 10 Pet. 25; 6 Pick. 57; 6 Mass. 454; 12 Wend. 98.
3. There are public roads, such as turnpikes and railroads, which are constructed by public authority, or by corporations. These are kept in good order by the respective companies to which they belong, and persons travelling on them, with animals and vehicles, are required to pay toll. In general these companies have only a right of passage over the land, which remains the property, subject to the easement, of the owner at the time the road was made or of his heirs or assigns.
4. Private roads are, such as are used for private individuals only, and are not wanted for the public generally. Sometimes roads of this kind are wanted for the accommodation of land otherwise enclosed and without access to public roads. The soil of such roads belongs to the owner of the land over which they are made.
5. Public roads are kept in repair at the public expense, and private roads by those who use them. Vide Domain; Way. 13 Mass. 256; 1 Sumn. Rep. 21; 2 Hill. Ab. c. 7; 1 Pick. R. 122; 2 Mass. R. 127 6 Mass. R. 454; 4 Mass. R. 427; 15 Mass. Rep. 33; 3 Rawle, R. 495; 1 N. H. Rep. 16; 1 M'Cord, R. 67; 1 Conn. R. 103; 2 John. R. 357; 1 John. Rep. 447; 15 John. R. 483; 4 Day, Rep. 330; 2 Bailey, Rep. 271; 1 Burr. 133; 7 B. & Cr. 304; 11 Price R. 736; 7 Taunt. R. 39; Str. 1004. 1 Shepl. R. 250; 5 Conn. Rep. 528; 8 Pick. R. 473; Crabb, R. P. §§102-104.
ROAD, mar. law. A road is defined by Lord Hale to be an open passage of the sea, which, from the situation of the adjacent land, and its own depth and wideness, affords a secure place for the common riding and anchoring of vessels. Hale de Port. Mar. p. 2, c. 2. This word, however, doesnot appear to have a very definite meaning. 2 Chit. Com. Law, 4, 5.
ROARING. A disease among horses occasioned by the circumstance of the neck of the windpipe being too narrow for accelerated respiration; the disorder is frequently produced by sore throat or other topical inflammation.
2. A horse affected with this malady is rendered less serviceable, and he is therefore unsound. 2 Stark. R. 81; S. C. 3 Engl. Com. Law Rep. 255; 2 Camp. R. 523.
ROBBER. One who commits a robbery. One who feloniously and forcibly takes goods or money to any value from the person of another by violence or putting him, in fear.
ROBBERY, crimes. The felonious and forcible taking from the person of another, goods or money to any value, by violence or putting him in fear. 4 Bl. Com. 243 1 Bald. 102.
2. By "taking from the person" is meant not only the immediate taking from his person, but also from his presence when it is done with violence and against his consent. 1 Hale, P. C. 533; 2 Russ. Crimes, 61. The taking must be by violence or putting the owner in fear, but both these circumstances need not concur, for if a man should be knocked down and then robbed while be is insensible, the offence is still a robbery. 4 Binn. R. 379. And if the party be put in fear by threats and then robbed, it is not necessary there should be any greater violence.
3. This offence differs from a larceny from the person in this, that in the latter, there is no violence, while in the former the crime is incomplete without an actual or constructive force. Id. Vide 2 Swift's Dig. 298. Prin. Pen. Law, ch. 22, §4, p. 285; and Carrying away; Invito Domino; Larceny; Taking.
ROD. A measure sixteen feet and a half long; a perch.
ROGATORY, LETTERS. A kind of commission from a judge authorizing and requesting a judge of another jurisdiction to examine a witness. Vide Letters Rogatory.
ROGUE. A French word, which in that language signifies proud, arrogant. In some of the ancient English statutes it means an idle, sturdy beggar, which is its meaning in law. Rogues are usually punished as vagrants. Although the word rogue is a word of reproach, yet to charge one as a rogue is not actionable. 5 Binn. 219. See 2 Dev. 162 Hardin, 529.
ROLE D'EQUIPAGE. The list of a ship's crew; the muster roll.
ROLL. A schedule of parchment which may be turned up with the hand in the form of a pipe or tube. Jacob, L. D. h. t.
2. In carly times, before paper came in common use, parchment was the substance employed for making records, and, as the art of bookbinding was but little used, economy suggested as the most convenient mode of adding sheet to sheet, as were found requisite, and they were tacked together in such manner that the whole length might be wound up together in the form of spiral rolls.
3. Figuratively it signifies the records of a court or office. In Pennsylvania the master of the rolls was an officer in whose office were recorded the acts of the legislature. 1 Smith's Laws, 46.
ROOD OF LAND. The fourth part of an acre.
ROOT. That part of a tree or plant under ground from which it draws most of its nourishment from the earth.
2. When the roots of a tree planted in one man's land extend into that of another, this circumstance does not give the latter any right to the tree, though such is the doctrine of the civil law; Dig. 41, 1, 7, 13; but such person has a right to cut off the roots up to his line. Rolle's R. 394, vide Tree.
3. In a figurative sense, the term root is used to signify the person from whom one or more others are descended. Vide Descent; Per stirpes.
ROSTER. A list of persons who are in their turn to perform certain duties, required of them by law. Tytler , on Courts Mart. 93.
ROUBLE. The name of a coin. The rouble of Russia, as money of account, is deemed and taken at the custom-house, to be of the value of seventy-five cents. Act March 3, 1843.
ROUT, crim. law. A disturbance of the peace by persons assembled together with an intention to do a thing, which, if executed, would have made them rioters, and actually making a motion towards the execution of their purpose.
2. It generally agrees in all particulars with a riot, except only in this, that it may be a complete offence without the execution of the intended enterprise. Hawk. c. 65, s. 14; 1 Russ. on Cr. 253; 4 Bl. Com. 140; Vin. Abr. Riots, &c., A 2 Com. Dig. Forcible Entry, D 9.
ROUTOUSLY, pleadings. A technical word properly used in indictments for a rout as descriptive of the offence. 2 Salk. 593.
ROYAL HONORS. In diploniatic language by this term is understood the rights enjoyed by every empire or kingdom in Europe, by the pope, the grand duchies of Germany, and the Germanic, and Swiss confederations, to precedence over all others who do not enjoy the same rank, with the exclusive right of sending to other states public ministers of the first rank, as ambassadors, together with other distinctive titles and ceremonies. Vattel, Law of Nat. B. 2, c. 3, §38; Wheat. Intern. Law, pt. 2, c. 3, §2.
RUBRIC, civil law. The title or inscription of any law or statute, because the copyists formerly drew and painted the title of laws and statutes rubro colore, in red letters. Ayl. Pand. B. 1, t. 8; Diet. do Juris. h. t.
RUDENESS, crim. law. An impolite action; contrary to the usual rules observed in society, committed by one person against another.
2. This is a relative term which it is difficult to define: those acts which one friend might do to another, could not be justified by persons altogether unacquainted persons moving in polished society could not be permitted to do to each other, what boatmen, hostlers, and such persons might perhaps justify. 2 Hagg. Eccl. R. 73. An act done by a gentleman towards a lady might be considered rudeness, whicb, if done by one gentleman to another might not be looked upon in that light. Russ. & Ry. 130.
3. A person who touches another with rudeness is guilty of a battery. (q. v.)
RULE. This is a metaphorical expression borrowed from mechanics. The rule, in its proper and natural sense, is an instrument by means of which may be drawn from one point to another, the shortest possible line, which is called a straight line.
2. The rule is a means of comparison in the arts to judge whether the line be straight, as it serves in jurisprudence, to judge whether an action be just or unjust, it is just or right, when it agrees with the rule, which is the law. It is unjust and wrong, when it deviates from it. lt is the same with our will or our intention.
RULE OF LAW. Rules of law are general maxims, formed by the courts, who having observed what is common to many particular cases, announce this conformity by a maxim, which is called a rule; because in doubtful and unforeseen cases, it is a rule for their decision; it embraces particular cases within general principles. Toull. Tit. prel. n. 17; 1 Bl. Com. 44; Domat, liv. prel. t. 1, s. 1 Ram on Judgm. 30; 3 Barn. & Adol. 34; 2 Russ. R. 216, 580, 581; 4 Russ. R. 305; 10 Price's R. 218, 219, 228; 1 Barn. & Cr. 86; 7 Bing. R. 280; 1 Ld. Raym. 728; 5 T. R. 5; 4 M. & S. 348. See Maxim.
RULE OF COURT. An order made by a court having competent jurisdiction.
2. Rules of court are either general or special; the former are the laws by which the practice of the court is governed; the latter are special orders made in particular cases.
3. Disobedience to these is punished by giving judgment against the disobedient party, or by attachment for contempt.
RULE TO SHOW CAUSE. An order made by the court, in a particular case, upon motion of one of the parties calling upon the other to appear at a particular time before the court, to show cause, if any he have, why a certain thing should not be done.
2. This rule is granted generally upon the oath or affirmation of the applicant; but upon the hearing, the evidence of competent witnesses must be given to support the rule, and the affidavit of the applicant is insufficient.
RULE OF THE WAR, l756, comm. law, war. A rule relating to neutrals was the first rule practically, established in 1756, and universally promulgated, that "neutrals are not to carry onin times of war, a trade which was interdicted to them in times of peace." Chit. Law of Nat. 166; 2 Rob. n. 186; 4 Rob. App.; Reeve on Shipp. 271; 1 Kent, Com. 82; Mann. Law Nat. 196 to 202.
RULE, TERM, English practice. A term rule is in the nature of a day rule, by which a prisoner is enabled by the terms of one rule, instead of a daily rule, to quit the prison or its rules for the purpose of transacting his business. lt is obtained in the same manner as a day rule. See Rules.
TO RULE. This has several meanings: 1. To determine or decide; as, the court rule the point in favor of the plaintiff. 2. To order by rule; as rule to plead.
RULES, English law. The rules of the King's Bench and Fleet are certain limits without the actual walls of the prisons, where the prisoner, on proper security previously given to the marshal of the king's bench, or warden of the fleet, may reside; those limits are considered, for all legal and practical purposes, as merely a further extension of the prison walls.
2. The rules or permission to reside without the prison, may be obtained by any person not committed criminally; 2 Str. R. 845; nor for contempt Id. 817; by satisfying the marshal or warden of the security with which he may grant such permission.
RULES OF PRACTICE. Certain orders made by the courts for the purpose of regulating the practice of members of the bar and others.
2. Every court of record has an inherent power to make rules for the transaction of its business; which rules they may from time to time change, alter, rescind or repeal. While they are in force they must be applied to all cases which fall within them; they can use no discretion, unless such discretion is authorized by the rules themselves. Rules of court cannot, of course, contra-vene the constitution or the law of the land. 3 Pick. R. 512; 2 Har. & John. 79; 1 Pet. S. C. R. 604; 3 Binn. 227, 417; 3 S. & R. 253; 8 S. & R. 336; 2 Misso. R. 98; 11 S. & R. 131; 5 Pick. R. 187.
RUMOR. A general public report of certain things, without any certainty as to their truth.
2. In general, rumor cannot be received in evidence, but when the question is whether such rumor existed, and not its truth or falsehood, then evidence of it may be given.
RUNCINUS. A nag. 1 Tho. Co. Litt. 471.
RUNNING DAYS. In settling the lay days, (q. v.) or the days of demiurrage, (q. v.) the contract sometimes specifies "running days;" by this exprression is, in general, understood, that the days shall be reckoned like the days in a bill of exchange 1 Bell's Comm. 577, 5th ed.
RUNNING OF THE STATUTE OF LIMITATIONS. A metaphorical expression, by which is meant that the time mentioned in the statute of limitations is considered as passing. 1 Bouv. Inst. n. 861.
RUNNING WITH THE LAND. A technical expression applied to covenants real, which affect the land; and if a lessee covenants that he and his assigns will repair the house demised, or pay a ground-rent, and the lessee grants over the term, and the assignee does not repair the house or pay the ground-rent, an action lies against the assignee at common law, because this covenant runs with the land. Bro. Covenant, 32 Rolle's Ab. 522; Bac. Ab. Covenant, E 4.
2. The same principle which regulates the annexation of incorporeal to corporeal property, determines what covenants may be annexed to a tenure. Those alone which tend directly, not merely through the intervention of collateral causes, to improve the estate, give stability to the tenant's title, assure him, from a defective one, or add to the lord's means on the one hand, the tenant's on the other, of enforcing the stipulations between them, are of this sort. Cro. Eliz. 617; Cro. Jac. 125; 2 H. Bl. 133 T. Jones, 144; Cro. Car. 137, 503.
3.
Covenants running with the land pass with the tenure, though not made with
assigns. The parties to them are not A and B, but the tenant and the landlord
in those characters. When the landlord assigns the reversion, the assignee
becomes lord in his room, fills the precise situation and character the
assignor was clothed with, and is therefore entitled to the privileges annexed
to that character. Whether the tenant is sued by the landlord or his assigns,
be is sued by the same person, namely, his lord. The same argument, changing
its terms, applies to the tenant's assignee. 5
4.
To make a covenant run with the land, it is not requisite that the cove-nantor
should be possessed of any estate; be may be an entire stranger to the land,
but the covenantee must have some transferable interest in it, to which the
covenant can attach itself, for otherwise the covenant is merely personal.
5. A covenant running with the land passes to the heir at law, on the death of the ancestor, whether the heir be named in such covenant or not. 2 Lev. 92; 2 Saund. 367 a. Vide Covenant.
RUPEE,
comm. law. A denomination of money in
2.
The rupee of
RURAL. That which relates to the country, as rural servitudes. See Urban.
RUTA, civ. law. The name given to those things which are extracted or taken from land, as sand, chalk, coal, and such other things. Poth. Pand. liv. 50, h. t.
SABBATH. The same as Sunday. (q. v.)
SABINIANS. A sect of lawyers, whose first chief was Atteius Capito, and the second, Caelius Sabiaus, from whom they derived their name. Clef des Lois Rom. h. t.
SACRAMENTUM. An oath; as, qui dicunt supra sacramentum suum.
SACQUIER, maritime law. The same of an ancient officer, whose business "was to load and unload vessels laden with salt, corn, or fish, to prevent the ship's crew defrauding the merchant by false tale, or cheating him of his merchandise otherwise." Laws of Oleron, art. 11, published in an English translation in an Appendix to 1 Pet. Adm. R. XXV. See Arrameur; Stevedore.
SACRILEGE. The act of stealing from the temples or churches dedicated to the worship of God, articles consecrated to divine uses. Pen. Code of China, B. 1, s. 2, §6; Ayl. Par. 476.
SAEVETIA. Cruelty. (q. v.) It is required in order to constitute saevetia that there should exist such a degree of cruelty as to endanger the party's suffering bodily hurt. 1 Hagg. Cons. R. 85; 2 Mass. 150; 3 Mass. 821; 4 Mass. 587.
SAFE-CONDUCT, comm. law, war. A passport or permission from a neutral state to persons who are thus authorized to go and return in safety, and, sometimes, to carry away certain things, in safety. According to common usage, the term passport is employed on ordinary occasions, for the permission given to persons when there is no reason why they should not go where they please: and safe-conduct is the name given to the instrument which authorizes certain persons, as enemies, to go into places where they could not go without danger, unless thus authorized by the government.
2. A safe-conduct is also the name of an instrument given to the captain or master of a ship to proceed on a particular voyage: it usually contains his name and residence, the name, description and destination of the ship, with such other matters as the practice of the place requires. This document is indispensably necessary for the safety of every neutral ship.
3. The act of congress of April 30th, 1790, s. 27, punishes the violation of any safe-conduct or passport granted under the authority of the United States, on conviction, with imprisonment, not exceeding three years, and a fine at the discretion of the court. Vide Conduct; Passport; and 18 Vin. Ab. 272.
SAFE PLEDGE, salvus-plegius. A surety given that a man shall appear upon a certain day. Bract. lib. 4, c. 1.
SAID. Before mentioned.
2. In contracts and pleadings it is usual and proper when it is desired to speak of a person or thing before mentioned, to designate them by the term said or aforesaid, or by some similar term, otherwise the latter description will be ill for want of certainty. 2 Lev. 207: Com. Dig. Pleader, C IS; Gould on Pl: c. 3, §63.
SAILING INSTRUCTIONS, mar. law. Written or printed directions, delivered by the commanding officer of a convoy to the several masters of the ships under his care, by which they are enabled to understand and answer his signals, to know the place of rendezvous appointed for the fleet, in case of dispersion by storm, by an enemy, or by any other accident.
2. Without sailing instructions no vessel can have the full protection and benefit of convoy. Marsh. Ins. 368.
SAILORS. Seamen, mariners. Vide Mariners; Seamen; Shipping Articles.
SAISIE-EXECUTION, French law. This term is used in Louisiana. It is a writ of execution by which the creditor places under the custody of the law, the movables, which are liable to seizure, of his debtor, in order that out of them he may obtain payment of the debt due by him Code of Practice, art. 641 , Dall. Diet. h. t.. It is a writ very similar to the fieri facias.
SAISIE-FORAINE. A term used in Louisiana and in the French law; this is a permission given by the proper judicial officer, to authorize a creditor to seize the property of his debtor in the district which he inhabits. Dall. Dict. h. t. It has the effect of an attachment of property, which is applied to the payment of the debt due.
SAISIE-GAGERIE, French law. A conservatory act of execution, by which the owner, or principal lessor of a house or farm, causes the furniture of the house or farm leased, and on which he has a lien, to be seized, in order to obtain the rent due to him. It is similar to the distress of the common law. Dall. Dict. h. t.
SAISIE-IMMOBILIERE. A writ by which the creditor puts in the custody of the law the immovables of his debtor, that out of the proceeds of their sale, he may be paid his demand. The term is French, and is used in Louisiana.
SALARY. A reward or recompense for services performed.
2. It is usually applied to the reward paid to a public officer for the performance of his official duties.
3. The salary of the president of the United States is twenty-five thousand dollars per annum; Act of l8th Feb. 1793; and the constitution, art. 2, s. 1, provides that the compensation of the president shall not be increased or diminished, during the time for which he shall have been elected.
4. Salary is also applied to the reward paid for the performance of other services; but if it be not fixed for each year, it is called honorarium. Poth. Pand. h. t. According to M. Duvergier, the distinction between honorarium and salary is this. By the former is understood the reward given to the most ele-vated professions for services performed; and by the latter the price of hir-ing of domestic servants and workmen. 19 Toull. n. 268, p. 292, note.
5. There is this difference between salary and price; the former is the re-ward paid for services, or for the hire of things; the latter is the consideration paid for a thing sold. Lec. Elem. §907, 908.
SALE, contracts. An agreement by which one of the contracting parties, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or purchaser, who, on his part, agrees to pay such price. Pard. Dr. Com. n. 6; Noy's Max. ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth. Vente, n. 1; 1 Duverg. Dr. Civ. Fr. n. 7.
2. This contract differs from a barter or exchange in this, that in the latter the price or consideration, instead of being paid in money, is paid in goods or merchandise, susceptible of a valuation. It differs from accord and satisfaction, because in that contract, the thing is given for the purpose of quieting a claim, and not for a price. An onerous gift, when the burden it imposes is the payment of a sum of money, is, when accepted, in the nature of a sale. When partition is made between two or more joint owners of a chattel, it would seem, the contract is in the nature of a barter. See 11 Pick. 311.
3. To constitute a valid sale there must be, 1. Proper parties. 2. A thing which is the object of the contract. 3. A price agreed upon; and, 4. The consent of the contracting parties, and the performance of certain acts required to complete the contract. These will be separately considered.
4. - 1. As a general rule all persons sui juris may be either buyers or sellers. But to this rule there are several exceptions. 1. There is a class of persons who are incapable of purchasing except sub modo, as infants, and married women; and, 2. Another class, who, in consequence of their peculiar relation with regard to the owner of the thing sold, are totally incapable of becoming purchasers, while that relation exists; these are trustees, guardians, assignees of insolvents, and generally all persons who, by their connexion with the owner, or by being employed concerning his affairs, have acquired, a knowledge of his property, as attorneys, conveyancers, and the like. See Purchaser.
5. - 2. There must be a thing which is the object of the sale, for if the thing sold at the time of the sale had ceased to exist it is clear there can be no sale; if, for example, Paul sell his horse to Peter, and, at the time of the sale the horse be dead, though the fact was unknown to both parties: or, if you and I being in Philadelphia, I sell you my house in Cincinnati, and, at the time of the sale it be burned down, it is manifest there was no sale, as there was not a thing to be sold. It is evident, too, that no sale can be made of things not in commerce, as the air, the water of the sea, and the like. When there has been a mistake made as to the article sold, there is no sale; as, for example, where a broker, who is the agent of both parties, sells an article and delivers to the seller a sold note describing the article sold as "St. Petershurg clean hemp," and bought note to, the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786, 788; 5 B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N. S. 747 9 M. &, W. 805. Holt. N. P. Cas. 173; 1 M. & P. 778.
6. There must be an agreement as to the specific goods which form the basis of the contract of sale; in other words, to make a perfect sale, the parties must have agreed the one to part with the title to a specific article, and the other to acquire such title; an agreement to sell one hundred bushels of wheat, to be measured out of a heap, does not change the property, until the wheat has been measured. 3 John. 179; Blackb. on Sales, 122 , 5 Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick. 280; 15 John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.
7. - 3. To constitute a sale there must be a price agreed upon; but upon the maxim id certum est quod reddi certum potest, a sale may be valid although it is agreed that the rice for the thing sold shall be determined by a third person. 4 Pick. 179. The price must have the three following qualities, to wit: 1. It must be an actual or serious price. 2. It must be certain or capable of being rendered certain. 3. It must consist of a sum of money.
8. - 1. The price must be an actual or serious price, with an intention on the part of the seller, to require its payment; if, therefore, one should sell a thing to another, and, by the same agreement, he should release the buyer from the payment, this would not be a sale but a gift, because in that case the buyer never agreed to pay any price, the same agreement by which the title to the thing is passed to him discharging him from all obligations to pay for it. As to the quantum of the price that is altogether immaterial, unless there has been fraud in the transaction. 2. The price must be certain or determined, but it is sufficiently certain, if, as before observed, it be left to the deterimination of a third person. 4 Pick. 179; Poth. Vente, n. 24. And an agreement to pay for goods what they are worth, is sufficiently certain. Coxe, 261; Poth. Vente, n. 26. 3. The price must consist in a sum of money which the buyer agrees to pay to the seller, for if paid for in any other way, the contract would be an exchange or barter, and not a sale, as before observed.
9. - 4. The consent of the contracting parties, which is of the essence of a sale, consists in the agreement of the will of the seller to sell a certain thing to the buyer, for a certain price, and in the will of the buyer, to purchase the same thing for the same, price. Care must be taken to distinguish between an agreement to enter into a future contract, and a present actual agreement to make a sale. This consent may be shown, 1. By an express agreement. 2. By all implied agreement.
10. - 1. The consent is certain when the parties expressly declare it. This, in some cases, it is requisite should be in writing. By the 17tth section of the English statute, 29 Car. II. c. 3, commonly called the Statute of Frauds, it is enacted, "that no contract for the sale of any goods, wares, or merchan-dise, for the price of ú10 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized." This statute has been renacted in most of the states of the Union, with amendments and alterations,
11. It not unfrequently happens that the consent of the parties to a contract of sale is given in the course of a correspondence. To make such contract valid, both parties must concur in it at the same time. See Letter, com. law, crim. law, §2; 4 Wheat. 225; 6 Wend. 103; 1 Pick. 278 10 Pick. 326.
12. An express consent to a sale may be given verbally, when it is not required by the statute of frauds to be in writing.
13. - 2. When a party, by his acts, approves of what has been done, as if he knowingly uses goods which have been left at his house by another who intended to sell them, he will, by that act, confirm the sale.
14. The consent must relate, 1. To the thing which is the object of the contract; 2. To the price; and, 3. To the sale itself. 1st. Both parties must agree upon the same object of the sale; if therefore one give consent to buy one thing, and the other to sell another, there is no sale; nor is there a sale if one sells me a bag full of oats, which I understand is full of wheat; because there is no consent as to the thing which is the object of the sale. But the sale would be valid, although I might be mistaken as to the quality of the tiling sold. 20 John. 196 3 Rawle, 23, 168. 2d. Both parties must agree as to the same price, for if the seller intends to sell for a greater sum than the buyer intends to give, there is no mutual consent; but if the case were reversed, and the seller intended to sell for a less price than the buyer intended to give, the sale would be good for the lesser sum. Poth. Vente, n. 36. 3d. The consent must be on the sale itself, that is, one intends to sell, and the other to buy. If, therefore, Peter intended to lease his house for three hundred dollars a year for ten years, and Paul intended to buy it for three thousand dollars, there would not be a contract of sale nor a lease. Poth. Vente, n. 37.
15. In order to pass the property by a sale, there must be an express or implied agreement that the title shall pass. An agreement for the sale of goods is prima facie a bargain and sale of those goods; but this arises merely from the presumed intention of the parties, and if it appear that the parties have agreed, not that there shall be a mutual credit by which the property is to pass from the seller to the buyer, and the buyer is bound to pay the price to the seller, but that the exchange of the money for the goods shall be made on the. spot, no property is transferred, for it is not the intention of the parties to transfer any. 4 Wash. C. C. R. 79. But, on the contrary, when the making of part payment, or naming a day for payment, clearly shows an intention in the parties that they should have some time to complete the sale by payment and delivery, and that they should in the meantime be trustees for each other, the one of the property in the chattel, and the other in the price. As a general rule, when a bargain is made for the purchase of goods, and nothing is said about payment and. delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot take them away without paying the price. 5 B. & C. 862.
16. Sales are absolute or conditional. An absolute sale is one made and completed without any condition whatever. A conditional sale is one which depends for its validity upon the fulfilment of some condition. See 4 Wash. C. C. R. 588; 4 Mass. 405; 17 Mass. 606; 10 Pick. 522; 13 John. 219; 18 John. 141; 8 Verm. 154; 2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2 A.K. Marsh. 430.
17. Sales are also voluntary or forced, public or private.
18. - 1. A voluntary sale is one made without constraint freely by the owner of the thing sold; to such the usual rules relating to sales apply. 2. A forced sale is one made without the consent of the owner of the property by some officer appointed by law, as by a marshal or a sheriff in obedience to the mandate of a competent tribunal. This sale has the effect to transfer all the rights the owner had in the property, but it does not, like a voluntary sale of personal property, guaranty a title to the thing sold it merely transfers the rights of the person as whose property it has been seized. This kind of a sale is sometimes called a judicial sale. 3. A public sale is one made at auction to the highest bidder. Auction sales sometimes are voluntary, as when the owner chooses to sell his goods in this way, and then as between the seller and the buyer the usual rules relating to sales apply; or they are involuntary or foreed when the same rules do not apply. 4. Private sales are those made voluntarily and not at auction.
19. The above rules apply to sales of personal property. The sale of real estate is governed by other rules. When a contract has been entered into for the sale of lands, the legal estate in such lands still remains vested in the vendor, and it does not become vested in the vendee until he shall have re-ceived a lawful deed of conveyance from the vendor to him; and the only remedy of the purchaser at Iaw, is to bring an action on the contract, and recover pecuniary damages for a breach of the contract. In equity, however, after a contract for the sale, the lands are considered as belonging to the purchaser, and the court will enforce his rights by a decree for a specific performance; and the seller will be entitled to the purchase money. Will. on Real Prop. 127. See Specific performance.
20. In general, the seller of real estate does not guaranty the title; and if it be desired that he should, this must be done by inserting a warranty to that effect. See, generally, Brown on Sales; Blackb. on Sales; Long on Sales; Story on Sales, Sugd. on Vendors; Pothier, Vente; Duvergier, Vente; Civil Code of Louisiana, tit. 7; Bouv. Inst. Index, h. t.; and Contracts; Delivery; Purchaser; Seller; Stoppage in transitu.
SALE NOTE. A memorandum given by a broker to a seller or buyer of goods, stating the fact that certain goods have been sold by him on account of a person called the seller to another person called the buyer. Sale notes are also called bought notes, (q. v.) and sold notes. (q. v.)
SALE AND RETURN. When goods are sent from a manufacturer or wholesale dealer to a retail trader, in the hope that he may purchase them, with the understanding that what he may choose to take he shall have as on a contract of sale, and what he does not take he will retain as a consignee for the owner, the goods are said to have been sent on sale and return.
2. The goods taken by the receiver as on a sale, will be considered as sold, and the title to them is vested in the receiver of them; the goods he does not buy are considered as a deposit in the hands of the receiver of them, and the title is in the person who sent them. 1 Bell's Com., 268, 5th ed.
SALIQUE LAW. The name of a code of laws so called from the Salians, a people of Germany, who settled in Gaul under their king Phararaond.
2. The most remarkable law of this code is that which regards succession. De terra vero salica nulla portio haereditatis transit in mulierem, sed hoc vir-iles sextus acquirit, hoc est filii in ipsa haereditate succedunt; no part of the salique land passes to females, but the males alone are capable of taking, that is, the sons succeed to the inheritance. This rule has ever excluded females from the throne of France.
SALVAGE, maritime law. This term originally meant the thing or goods saved from shipwreck or other loss; and in that sense it is generally to be understood in our old books. But it is at present more frequently understood to mean the compensation made to those by whose means the ship or goods have been saved from the effects of shipwreck, fire, pirates, enemies, or any other loss or misfortune. 1 Cranch, 1.
2. This compensation, which is now usually made in money, was, before the use of money became general, made by a delivery of part of the effects saved. Marsh. Ins. B. 1, c. 12, s. 8; Pet. Adm. Dec. 425; 2 Taunt. 302; 3 B. & P. 612; 4 M. & S. 159; 1 Cranch, 1; 2 Cranch, 240; Cranch, 221; 3 Dall. 188; 4 Wheat. 98 9 Cranch, 244; 3 Wheat. 91; 1 Day, 193 1 Johns. R. 165; 4 Cranch, 347; Com. Dig. Salvage; 3 Kent, Com. 196. Vide Salvors.
SALVAGE CHARGES. The expenses incurred to remunerate services rendered to a ship and cargo, which have prevented its being a total loss. Stev. on Av. c. 2, s. 1.
SALVAGE LOSS. By salvage loss is understood the difference between the amount of salvage, after deducting the charges, and the original value of the property. Stev. on Av. c. 2, s. 1.
SALVORS, mar. law. When a ship and cargo, or any part thereof, are saved at sea by the exertions of any person from impending perils, or are recovered after an actual abandonment or loss, such persons are denominated salvors; they are entitled to a compensation for their services, which is called salvage. (q. v.)
2. As soon as they take possession of property for the purpose of preserving it, as if they find a ship derelict at sea, or if they recapture it, or if they go on board a ship in distress, and take possession with the assent of the master or other person in possession, they are deemed boua fide possessors, and their possession cannot be lawfully displaced. 1 Dodson's Rep. 414. They have a lien on the property for their salvage, which the, laws of all maritime countries will respect and enforce. Salvors are responsible not only for good faith, but for reasonable diligence in their custody of the salvage property. Story, Bail. §623.
SAMPLE, contracts. A small quantity of any commodity or merchandise, exhibited as a specimen of a larger quantity called the bulk. (q. v.)
2. When a sale is made by sample, and it afterwards turns out that the bulk does not correspond with it, the purchaser is not, in general, bound to take the property on a compensation being made to him for the difference. 1 Campb. R. 113; vide 2 East, 314; 4, Campb. R. 22; 12 Wend. 566 9 Wend. 20; 6 Cowen, 354; 12 Wend. 413. See 5 John. R. 395.
SANCTION. That part of a law which inflicts a penalty for its violation, or bestows a reward for its observance. Sanctions are of two kinds, those which redress civil injuries, called civil sanctions; and those which punish crimes, called penal sanctions. 1 Hoffm. Leg. Outl. 279; Just. Ins. lib. 2, t. 1, §10; Ruthf. Inst. b. 2, c. 6, s. 6; Toull. tit. prel. 86; Ferguss. Inst. of Mor. Phil. p. 4, c. 3, s. 13, and p. 6, c. 1, et seq; 1 Bl. Com. 56.
SANCTUARY. A place of refuge, where the process of the law cannot be executed.
2. Sanctuaries may be divided into religious and civil. The former were very common in Europe; religious houses affording protection from arrest to all persons, whether accused of crime, or pursued for debt. This kind was never known in the United States.
3. Civil sanctuary, or that protection which is afforded to a man by his own house, was always respected in this country. The house protects the owner from the service of all civil process in the first instance but not if he is once lawfully arrested and takes refuge in his own house. Vide Door; House.
4. No place affords protection from arrest in criminal cases; a man may, therefore, be arrested in his own bouse in such cases, and the doors may be broken for the purpose of making the arrest. Vide Arrest in criminal cases.
SANE MEMORY. By this is meant that understanding which enables a man to make contracts and his will, and to perform such other acts as are authorized by law; Vide Lunacy; Memory; Non compos mentis.
SANG or SANC. Blood. These words are nearly obsolete.
SANITY, med. jur. The state of a person who has a sound understanding; the reverse of insanity.
2. The sanity of an individual is always presumed. 5 John. R. 144; 1 Pet. R. 163; 1 Hen. & M. 476; 4. Cowen, R. 207; 4 W. C. C. R. 262. See 9 Conn. 102; 9 Mass. 225; 3 Mass. 336 1 Mass. 71; 8 Mass. 371; 8 Greenl. 42; 15 John. 503; 4 Pick. 32.
SANS CEO QUE. The same as Absque hoc. (q. v.)
SANS NOMBRE. This is a French phrase, which signifies without number.
2. In England it is used in relation to the right of putting animals on a common. The term common sans nombre does not mean that the beasts are to be innumerable, but only indefinite, not certain; Willes, 227; but they are limited to the commoner's own commonable cattle, levant et couchant, upon his lands, or as many cattle as the land of the commoner can keep and maintain in winter. 2 Brownl. 101; Vent. 54; 5 T. R. 48; 1 Saund. 28, n. 4.
SANS RECOURS. Without recourse.
2. These words are sometimes put on a bill before the payee endorses it; they have the effect of transferring the bill without responsibility to the endorser. Chit. on Bills, 179; 7 Taunt. 160; 1 Cowen, 538; 3 Cranch, 193; 7 Cranch, 159; 12 Mass. 172; 14 S. & R. 325.
SATISDACTION, civil law. This word is derived from the same root as satisfaction; for, in the same manner that to fulfil the demand which is made upon us, is called satisfaction, so satisdaction takes place when he who demands something has agreed to receive sureties instead of the thing itself. Dig. 2, 8, 1
SATISFACTION, practice. An entry made on the record, by which a party in whose favor a judgment was rendered, declares that he has been satisfied and paid.
2. In Alabama, Delaware, Illinois, Indiana, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, South Carolina, and, Vermont, provision is made by statute, requiring the mortgagee to discharge a mortgage upon the record, by entering satisfaction in the margin. The refusal or neglect to enter satisfaction after payment and demand, renders the mortgagee liable to an action, after the time given him by the respective statutes for doing the same has elapsed, and subjects him to the payment of damages, and, in some cases, treble costs. In Indiana and New York, the register or recorder of deeds may himself discharge the mortgage upon the record on the exhibition of a certificate of payment and satisfaction signed by the mortgagee or his representatives, and attached to the mortgage, which shall be recorded. Ind. St. 1836, 64; 1 N. Y. Rev. St. 761.
SATISFACTION, construction by courts of equity. Satisfaction is defined to be the donation of a thing, with the intention, express or implied, that such donation is to be an extinguishment of some existing right or claim in the donee.
2. Where a person indebted bequeaths to his creditor a legacy, equal to, or exceeding the amount of the debt, which is not noticed in the will, courts of equity, in the absence of any intimation of a contrary intention, have adopted the rule that the testator shall be presumed to have meant the legacy as a satisfaction. of the debt.
3. When a testator, being indebted, bequeaths to his creditor a legacy, simpliciter, and of the same nature as the debt, and not coming within the exceptions stated in the next paragraph, it has been held a satisfaction of the debt, when the legacy is equal to, or exceeds the amount of the debt. Pre. Ch. 240; 3 P. Wms. 353.
4. The following are exceptions to the rule: 1. Where the legacy is of, less amount than the debt, it shall not be deemed a part payment or satisfaction. 1 Ves. pen. 263.
5. - 2. Where, though the debt and legacy are of equal amount, there is a difference in the times of payment, so that the legacy may not be equally beneficial to the legatee as the debt. Prec. Ch. 236; 2 Atk. 300; 2 Ves. sen. 63 5; 3 Atk. 96; 1 Bro. C. C. 129; 1 Bro. C. C. 195; 1 M'Clel. & Y. Rep. Exch. 41; 1 Swans. R. 219.
6. - 3. When the legacy and the debt are of a different nature, either with reference, to the subjects themselves, or with respect to the interests given. 2 P. Wms. 614; 1 Ves. jr. 298; 2 Ves. jr. 463.
7. - 4. When the provision by the will is expressed to be given for a particular purpose, such purpose will prevent the testamentary gift being construed a satisfaction of the debt, because it is given diverse intuitu. 2 Ves. sen. 635.
8. - 5. When the debt of the testator is contracted subsequently to the, making of the will; for, in that case, the legacy will not be deemed a satisfaction. 2 Salk. 508.
9. - 6. When the legacy is uncertain or contingent. 2 Atk. 300; 2 P. Wms. 343.
10. - 7. Where the debt itself is contingent, as where it arises from a running account between the testator and legatee; 1 P. Wms. 296; or it is a negotiable bill of exchange. 3 Ves. jr. 561.
11. - 8. Where there is an express direction in the will for the payment of debts end legacies, the court will infer from the circumstance, that the testator intended that both the debt owing from him to the legatee and the legacy, should, be paid. 1 P. Wms. 408; 2 Roper, Leg. 54.
See, generally, Tr. of Eq. 333; Yelv. 11, n.; 1 Swans. R. 221; 18 Eng. Com. Law Rep. 201; 4 Ves. jr. 301; 7 Ves. jr. 507; 1 Suppl. to Ves. jr. 204, 308, 311, 342, 348, 329; 8 Com. Dig. Appen. tit. Satisfaction, p. 917; Rob. on Frauds, 46, n. 15; 2 Suppl. to Ves. jr. 22, 46, 205; 1 Vern. 346; Roper, Leg. c. 17; 1 Roper on Hush. and Wife, 501 to 511; 2 Id. 53 to 63; Math. on Pres. c. 6, p. 107; 1 Desaus. R. 814; 2 Munf. Rep. 413; Stallm. on El. and Sat.
SATISFACTION PIECE, Eng. practice. An instrument of writing in which it is declared that, satisfaction is acknowledged between the plaintiff and defendant. It is signed by the attorney, and on its production and the warrant of attorney to the clerk of the judgments, satisfactio is entered on payment, of certain fees. Lee's Dict. of Pr. tit. Satisfaction.
SATISFACTORY EVIDENCE. That which is sufficient to induce a belief that the thing is true; in other words, it is credible evidence. 3 Bouv. Inst. n. 3049.
SCANDAL. A scandalous verbal report or rumor respecting some person.
2. The remedy is an action on the case.
3. In chancery practice, when a bill or other pleading contains scandal, it will be referred to a master to be expunged, and till this has been done, the opposite party need not answer. 3 Bl. Com. 342. Nothing is considered scandalous which is positively relevant to the cause, however harsh and gross the charge may be. The degree of relevancy is not deemed material. Coop. Eq. Pl. 19; 2 Ves. 24; 6 Ves. 514, 11 Ves. 626; 15 Ves. 477; Story Eq. Plo. §269 Vide Impertinent.
SCANDALUM MAGNATUM. Great scandal or slander. In England it. is the slander of the great men, the nobility of the realm.
SCHEDULE, practice. When an indictment is returned, from au inferior court in obedience to a writ of certiorari, the, statement of the previous proceedings sent with it, is termed the schedule. 1 Saund. 309, a, n. 2.
2. Schedules are also frequently annexed to answers in a court of equity, and to depositions and other documents, in order to show more in detail the matter they contain, than could otherwise be conveniently shown.
3. The term is frequently used instead of inventory.
SCHOOLMASTER. One employed in teaching a school.
2. A schoolmaster stands in loco parentis in relation to the pupils committed to his charge, while they are under his care, so far as to enforce obedience to his, commands, lawfully given in his capacity of school-master, and he may therefore enforce them by moderate correction. Com. Dig. Pleader, 3 M 19; Hawk. c. 60, sect. 23. Vide Correction.
3. The schoolmaster is justly entitled to be paid for his important and arduous services by those who em ploy him. See 1 Bing. R. 357 8 Moore's Rep. 368. His duties are to teach his pupils what he has undertaken, and to have a special care over their morals. See 1 Stark. R. 421.
SCIENDUM, Eng. law. The name given to a clause inserted in the record by which it is made " known that the justice here in court, in this same term, delivered a writ thereupon to the deputy sheriff of the county aforesaid, to be executed in due form of law." Lee's Dict. art. Record.
SCIENTER, knowingly.
2. A man may do many acts which are justifiable or not, as he is ignorant or not ignorant of certain facts. He may pass a counterfeit coin, when he is ignorant of its being counterfeit, and is guilty of no offence; but if he knew the coin to be counterfeit, which is called the scienter, he is guilty of passing counterfeit money. A man who keeps an animal which injures some person, or his property, is answerable for damages, or in some cases he may be indicted if he had a knowledge of such animal's propensity to do injury. 3 Blackst. Comm. 154; 2 Stark. Ev. 178; 4 Campb. 198; 2 Str. 1264; 2 Esp. 482; Bull. N. P. 77; Burr. 2092; 2 Lev. 172; Lord Raym. 110; 2 B. & A. 620; 2 C. M. & R. 496; 5 C. & P. 1; S. C. 24 E. C. L. R. 187; 1 Leigh, N. P. 552, 553; 7 C. & P. 755.
4. In this respect the civil law agrees with our own. Domat, Lois Civ. liv. 2, t. 8, s. 2. As to what evidence maybe given to prove guilty knowledge, see Archb. Cr. Pl. 109. Vide Animal; Dog.
SCILICET. A Latin adverb, signifying that is to say; to wit; namely.
2. It is a clause to usher in the sentence of another, to particularize that which was too general before, distribute what was too gross, or to explain what was doubtful and obscure. It neither increases nor diminish the premises or habendum, for it gives nothing of itself; it may make a restriction when the preceding words may be restrained. Hob. 171 P. Wms. 18; Co. Litt. 180 b, note 1.
3. When the scilicet is repugnant to the precedent matter, it is void; for example, when a declaration in trover states that the plaintiff on the third day of May was possessed of certain goods which on the fourth day of May came to the defendant's hands, who afterwards, to wit, on the first day of May converted them, the scilicet was rejected as surplusage. Cro. Jac. 428; and vide 6 Binn. 15; 3 Saund. 291, note 1, and the cases there cited. This word is sometimes abbreviated, ss. or sst.
SCINTILLA JURIS, estates; A spark of right. A legal fiction, resorted to for the purpose of enabling feoffees to uses to support contingent uses when they come into existence, thereby to enable the statutes of uses, 27 Henry VIII., to execute them. 4 Kent's Com. 238, et seq., and the authorities there cited, for the learning upon this subject.
SCIRE FACIAS, remedies, practice. The name of a judicial writ, founded upon some record, and requiring the defendant to show cause why the plaintiff should not have the "advantage of such record; or, when it is issued to repeal letters-patent, why the record should not be annulled and vacated. 3 Sell. Pr. 187; Grah. Pr. 649; 2 Tidd's Pr. 982; 2 Arch. Pr. 76; Bac. Abr. h. t.
2. It is, however, considered as an action, and in the nature of a new original. Skin. 682; Com. 455.
3. The scire facias against a bail, against pledges in replevin, to repeal letters-patent, or the like, is an original proceeding; but when brought to revive a judgment after a year and a day, or upon the death or marriage of the parties, when in the latter case one of them is a woman; or when brought on a judgment quando, &c., against an executor, it is but a continuation of the original action. Vide 1 T. R. 388. Vide generally, 11 Vin. Ab. 1; 19 Vin. Ab. 280 Bac. Ab. Execution, H; Bac. Ab. h. t. 2 Saund. 72 e, note, 3; Doct. Pl. 436 Bouv. Inst. Index, h. t.
SCIRE FACIAS AD AUDIENDUM ERRORES. The name of a writ which is sued out after the plaintiff in error has assigned his errors. F. N. B. 20; Bac. Ab. Error F.
SCIRE FACIAS AD DISPROBANDUM DEBTTUM. The name of a writ in use in Pennsylvania, which lies by a defendant in foreign attachment against the plaintiff, in order to enable him, within a year and a day next ensuing the time of payment to the plaintiff in the attachment, to disprove or avoid the debt recovered against him. Act relating to the commencement of actions, s. 61, passed June 13th, 1836.
SCIRE FECI, practice. The return of the sheriff, or other proper officer, to the writ of scire facias, when it has been served; scire feci, "I have made known."
SCIRE FIERI INQUIRY, Eng. law. The name of a writ, the history of the origin of which is as follows: when on an execution de bonis testatoris against an executor the sheriff returned nulla bona and also a devastavit, a fieri fac-ias, de bonis propriis, might formerly have been issued against the executor, without a previous inquisition finding a devastavit and a scire facias. But the most usual practice upon the sheriff's return of nulla bona a to a fieri facias de bonis testatoris, was to sue out a special writ of fieri facias de bonis testatoris, with a clause in it, "et si tibi constare, poterit," that the executor had wasted the goods, then to levy de bonis propriis. This was the practice in the king's bench till the time of Charles I.
2. In the common pleas a practice had prevailed in early times upon a suggestion in the special writ of fieri facias of a devastavit by the executor, to direct the sheriff to inquire by a jury, whether the executor had wasted the goods, and if the jury found he had, then a scire facias was issued out against him, and unless he made a good defence thereto, an execution de bonis propriis was awarded against him.
3. The practice of the two courts being different, several cases were brought into the king's bench on error, and at last it became the practice of both courts, for the sake of expedition, to incorporate the fieri facias inquiry, and scire facias, into one writ, thence called a scire fieri inquiry, a name compounded of the first words of the two writs of scire facias and fieri facias, and that of inquiry, of which it consists.
4. This writ recites the fieri facias de bonis testatoris sued out on the judgment against the executor, the return of nulla bona by the sheriff, and then suggesting that the executor bad sold and converted the goods of the testator to the value of the debt and damages recovered, commands the sheriff to levy the said debt and damages of the goods of the testator in the hands of the executor, if they could be but if it should appear to him by the inquisition of a jury that the executor had wasted the goods of the testator, then the sheriff is to warn the executor to appear, &c. If the judgment had been either by or against the testator or intestate, or both, the writ of fieri facias recites that fact, and also that the court had adjudged, upon a scire facias to revive the judgment, that the executor or administrator should have execution for the debt, &c. Clift's Entr. 659; Lilly's Entr. 664; 3 Rich. Pr. K. B. 523.
5. Although this practice is sometimes adopted, yet the most usual proceeding is by action of debt on the judgment, suggesting a devastavit, because in the proceeding by scire fieri inquiry the plaintiff is not entitled to costs, unless the executor appears and pleads to the scire facias. 1 Saund. 219, n. 8. See 2 Archb. Pr. 934.
SCITE. The setting or standing of may place. The seat or situation of a capital messuage, or the ground on which it Stood. Jacob, L. D. h. t.
SCOLD. A woman who by her habit of scolding becomes a nuisance to the neighborhood, is called a common scold. Vide Common Scold.
SCOT AND LOT, Eng. law. The name of a customary contribution, laid upon all the subjects according to their ability.
SCOUNDREL. An opprobrious title given to a person of bad character. General damages will not lie for calling a man a scoundrel, but special damages may be recovered when there has been an actual loss. 2 Bouv: Inst. n. 2250; 1 Chit. Pr. 44.
SCRIPT, conv. The original or principal instrument, where there are part and counterpart. Vide Chirograph; Part, Rescript.
SCRIVENER. A person whose, business it is to write deeds and other instruments for others; a conveyancer.
2. Money scriveners are those who are engaged in procuring money to be lent on mortgages and other securities, and lending such money accordingly. They act also as agents for the purchase and sale of real estates.
3. To be considered a money scrivener, a person must be concerned in carrying on the trade or profession as a means of making a livelihood. He must in the course of his occupation receive other men's moneys into his trust and custody, to lay out for them as occasion offers. 3 Camp. R. 538; 2 Esp. Cas. 555.
SCROLL. A mark which is to supply the place of a seal, made with a pen or other instrument on a writing.
2. In some of the states this has all the efficacy of a seal. 1, S. & R. 72; 1 Wash. 42; 2 McCord, 380; 4 McCord 267; 3 Blackf. 161; 3 Gill & John. 234; 2 Halst. 272. Vide Seal; 2 Serg. & Rawle, 504; 2 Rep. 5. a; Perk. §129. In others, a scroll has no such effect; and when a suit is brought on an instrument sealed with a scroll, the act of limitations may be pleaded to it, as to a simple contract. 2 Rand. 446; 6 Halst. 174; 5 John. 239; 1 Blackf. 241; Griff. Law Reg., answers to question No 110.
SCUTAGE, old Eng. law. The name of a tax or contribution raised for the use of the king's armies by those who held lands by knight's service.
SCYREGEMOTE. The name of a court among the Saxons. It was the court of the shire, in Latin called curia comitatus, and the principal court among the Saxons. It was holden twice a year for determining all causes both ecclesias-tical and secular.
SE DEFENDENDO, criminal law. Defending himself.
2. Homicide, se defendendo, is that which takes place upon a sudden rencounter, where two persons upon a sudden quarrel, without premeditation or malice, fight upon equal terms, and one, before a mortal stroke has been given, declines any further combat, and retreats as far as he can with safety, and kills his adversary, through necessity, to avoid immediate death. 2 Swift's Dig. 289 pamphl. Rep. of Selfridge's, Trial in, 1805 Hawk. bk. 1, c. 11, s. 13; 2 Russ. on Cr. 543; Bac. Ab. Murder, &c F 2.
SEA. The ocean; the great mass of waters which surrounds the land, and which probably extends from pole to pole, covering nearly three quarters of the globe. Waters within the ebb and flow of the tide, are to be considered the sea. Gilp. R. 526.
2. The sea is public and common to all people, and every person has an equal right to navigate it, or to fish there; Ang. on Tide Wat. 44 to 49; Dane's Abr. c. 68, a. 3, 4; Inst. 2, 1, 1; and to land upon the sea, shore. (q. v.)
3. Every nation has jurisdiction to the distance of a cannon shot, (q, v.) or marine league, over the water adjacent to its shore. 2 Cranch, 187, 234; 1 Circuit Rep. 62; Bynk. Qu. Pub. Juris. 61; 1 Azuni Mar. Law, 204; Id. 185; Vattel, 207:
SEA LETTER OR SEA BRIEF, maritime law. A document which should be found on board of every neutral ship; it specifies the nature and quantity of the cargo, the place from whence it comes, and its destination. Chit. Law of Nat. 197; 1 John. 192.
SEA SHORE, property. That space of land, on the border of the sea, which is alternately covered and left dry, by the rising and falling of the tide or, in other words, that space of land between high and low water mark. Hargr, Tr. 12; 6 Mass. 435, 439; 1 Pick. 180, 182; 5 Day, 22.
2. Generally, the sea shore belongs to the public. Angell on Tide Wat. 34, 5; 3 Kent's Com. 347.
3. By the Roman law, the shore included the land as far as the greatest wave extended in winter; est autem littus, maris, quatenus hibernus, fluctus maximus excurrit. Inst. lib. 2, t. 1, s. 3. Littus publicum est eatenus qua maxime fluctus exaestuat. Dig., lib, 50, t. 16, s. 112.
4. The Civil Code of Louisiana seems to have followed the law of the Insti-tutes and the Digest, for it enacts, art. 442, that the "sea shore is that space, of land over which the waters of the sea are spread in the highest water, during the winter season." Vide. 5 Rob. Adm. R. 182; Dougl. 425; 1 Halst. R. 1; 2 Roll. Ab. 170; Dyer, 326; 5 Co. 107; Bac. Ab., Courts of Admiralty,, A; 1 Am. Law Mag. 76; 16 Pet. R. 234, 367 Ang. on Tide Waters, Index, tit. Shore; 2 Bligh's N, S. 146; 5 M. & W. 327 Merl. Quest. de Droit, mots Rivage de la Mer; Inst. 2, 1, 2; 22 Maine, R. 350. For the law of Mass. vide Dane's Ab. c. 68, a 3, 4.
SEA WEED. A species of grass which grows in the sea.
2. When cast upon land, it belongs to the owner of the land adjoining the sea shore; upon the grounds, that it increases gradually, that it is useful as manure and a protection to the ground, and that it is some compensation for the encroachments of the sea upon the land. 2 John. R. 313, 323. Vide 5 Verm. R. 223.
3. The French differs from our law in this respect, as sea weeds there, when cast on the beach, belong to the first occupant. Dall. Dict. Propriete, art. 3, §2, n. 128.
SEA WORTHINESS, mer. law. The ability of a ship or other vessel to make a sea voyage with probable safety: there is, in every insurance, whether on ship or goods, an implied warranty that the ship shall be worthy when she sails on the voyage insured; that is, that she shall be "tight, staunch, and strong, properly manned, provided with all necessary stores, and in all respects fit for the intended voyage." Marsh. Ins. 153 2 Phil. Ev. 60 10 Johns. R. 58.
2. The following rules have been established in regard, to the warranty of sea-worthiness.
3. - 1. That it is of no consequence whether the insured was aware of the condition of the ship, or not. His innocence or ignorance is no answer to the fact that the ship was not sea-worthy.
4. - 2. - The opinion of carpenters who have repaired the vessel, however they may strengthen the presumption that the ship is sea-worthy, when it is favorable, is not conclusive of the fact of sea-worthiness. 4 Dow's Rep. 269.
5. - 3. The presumption, prima facie, is for sea-worthiness. 1 Dow's R. 336; And it is presumed that a vessel continues sea-worthy, if she was so at the inception of the risk. 20 Pick. 389. See 1 Brev. 252.
6. - 4. Any sort of disrepair left in the ship, by which she, or the cargo may suffer, is a breach of the warranty of sea-worthiness.
7. - 5. A deficiency of force in the crew, or of skill in the master, mate, &c., is a want of sea-worthiness. 1 Campb. 1; 14 East, R. 481. But if there was once a sufficient crew, their temporary absence will not be considered a breach of the warranty. 2 Barn. & Ald. 73; 1 John. Cas. 184; 1 Pet. 183.
8. - 6. A vessel may be rendered not sea-worthy by being overloaded. 2 Barn. & Ald . 320.
9. - 7. When the sea-worthiness arises from justifiable ignorance of the cause of the defect, and is discovered and remedied before any injury occurs, it is not to be considered as a defect. Ib. See, generally, 2 John. 124, 129; 3 John. Cas. 76; 1 John. 241; 1 Caines, 217 3 S. & R. 25 1 Whart. 399.
10. By an act of congress, approved July 20, 1840, as amended, by the act of July 29, 1850, it is provided, that if the first officer, (or a second and third officer,) and a majority of the crew of any vessel, shall make complaint in writing that she is in an unsuitable condition to go to sea, because she is leaky, or insufficiently supplied with sails, rigging, anchors, or any other equipment, or that the crew is insufficient to man her, or that her provisions, stores, and supplies are not, or have not been, during the voyage, sufficient and wholesome, thereupon, in any of these or like cases, the consul or commercial agent who may discharge any duties of a consul shall appoint two disinterested, competent, practical men, acquainted with maritime affairs, to examine into the causes of complaint, who shall, in their report, state what defects and deficiencies, if any they find to be well founded, as well as what, in their judgment ought to be done, to put the vessel in order for the continuance of her voyage.
SEAL, conveyancing, contracts. A seal is an impression upon wax, wafer, or some other tenacious substance capable of being impressed. 5 Johns. R. 239. Lord Coke defines a seal to be wax, with an impression. 3 Inst. 169. " Sigillum," says he, "est cera impressa, quia cera sine impressione non est sigillum." This is the common law definition of a seal. Perk. 129, 134; Bro. tit. Faits, 17, 30; 2 Leon 21; 5 John. 239; 2 Caines, R. 362; 21 Pick. R. 417.
2. But in Pennsylvania, New Jersey, and the southern and western states generally, the impression upon wax has been disused, and a circular, oval, or square mark, opposite the name of the signer, has the same effect as a seal the shape of it however is indifferent; and it is usually written with a pen. 2 Serg. & Rawle, 503; 1 Dall. 63; 1 Serg. & Rawle, 72; 1 Watts, R. 322; 2 Halst. R. 272.
3. A notary must use his official seal, to authenticate his official acts, and a scroll will not answer. 4 Blackf. R. 185. As to the effects of a seal, vide Phil. Ev. Index, h. t. Vide, generally, 13 Vin. Ab. 19; 4 Kent, Com. 444; 7 Caines' Cas. 1; Com. Dig. Fait, A 2.
4. Merlin defines a real to be a plate of metal with a flat surface, on which is engraved the arms of a prince or nation, or private individual or other device, with which an impression may be made on wax or other substance on paper or parchment, in order to authenticate them: the impression thus made is also called a seal. Repert. mot Sceau; 3 McCord's R. 583; 5 Whart. R. 563.
5. When a seal is affixed to an instrument, it makes it a specialty, (q. v.) and whether the seal be affixed by a corporation or an individual the effect is the same. 15 Wend. 256.
6. Where an instrument concludes with the words, "witness our hands and seals," and is signed by two persons, with only one seal, the jury may infer, from the face of the paper, that the person who signed last, adopted the seal of the first. 6 Penn. St. Rep. 302. Vide 9 Am Jur. 290-297; 1 Ohio Rep. 368; 3 John. 470. 12 ohu. 76; as to the origin and use of seals, Addis. on Cont. 6; Scroll.
7. The public seal of a foreign state, proves itself; and public acts, decrees and judgments, exemplified under this seal, are received as true and genuine. 2 Cranch, 187, 238; 4 Dall. 416; 7 Wheat. 273, 335; 1 Denio, 376; 2 Conn. 85, 90; 6 Wend. 475; 9 Mod. 66. But to entitle its seal to such authority, the foreign state must have been acknowledged by the government, within whose jurisdiction the forum is located. 3 Wheat. 610; 9 Ves. 347.
SEAL-OFFICE, English practice. The office at which certain judicial writs are sealed with the prerogative seal, and without which they are of no author-ity. The officer whose duty it is to seal such writs is called "sealer of writs;"
SEAL OF THE UNITED STATES, government. The seal used by the United States in congress assembled, shall be the seal of the United States, viz.: ARMS, pale-ways of thirteen pieces argent and gules; a chief azure; the escutcheon on the breast of the American eagle displayer proper, holding in his dexter talon, an olive branch, and in his sinister, a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto, "E pluribus unum." For the CREST: over the head of the eagle which appears above the escutcheon, a glory, or breaking through a cloud, proper, and surrounding thirteen stars, forming a constellation argent on an azure field. REVERSE, a pyramid unfin-ished. In the zenith an eye in a triangle, surrounded with a glory proper: over the eye, these words, "Annuit caeptis." On the base of the pyramid, the numerical letters, MDCCLXXVI; and underneath, the following motto, "Novus ordo sectorum." Resolution of Congress, June 20, 1782; Gordon's Dig. art. 207.
SEALING OF A VERDICT, practice. The putting a verdict in writing, and placing it in an envelop, which is sealed. To relieve jurors after they have agreed, it is not unusual for the counsel to agree that the jury shall seal their verdict, and then separate. When the court is again in session, the jury come in and give their verdict, in all respects as if it had not been sealed, and a juror may dissent from it, if since the sealing, he has honestly changed his mind. 8 Ham. 405; Gilm. 333; 3 Bouv. Inst. n. 3257.
SEALS, matters of succession. On the death of a person, according to the laws of Louisiana, if the heir wishes to obtain the benefit of inventory, and the delays for deliberating, he is bound as soon as he knows of the death of the deceased to whose succession he is called, and before committing any act of heirship, to cause the seals to be affixed on the effects of the succession, by any judge or justice of the peace. Civ. Code, of Lo. art. 1027.
2. In ten days after this affixing of the seals, the, heir is bound to present a petition to the judge of the place in which the succession, is opened, praying for the removal of the seals, and that a true and faithful inventory of the effects of the succession be made. Id. art. 1028.
3. In case of vacant estates, and estates of which the heirs are absent and not represented, the seals, after the decease, must be affixed by a judge or justice of the peace within the limits of his jurisdiction, and may be fixed by him, either ex officio, or at the request of the parties. Civ. Code of Lo. art. 1070. The seals are affixed at the request of the parties, when a widow, a testamentary executor, or any other person who pretends to have an interest in a succession or community of property, requires it. Id. art. 1071.; They are affixed ex officio, when the presumptive heirs of the deceased do not all reside in the place where be died, or if any of them happen to be absent. Id. art 1072.
4. The object of placing the seals on the effects of a succession, is for the purpose of preserving them, and for the interest of third persons. Id. art. 1068.
5. The seals must be placed on the bureaus, coffers, armoires, and other things, which contain the effects and papers of the deceased, and on the doors of the apartments which contain these things, so that they cannot be opened without tearing off, breaking, or altering the seals. Id. art. 1069.
6. The judge or justice of the peace, who affixes the seals, is bound to appoint guardian, at the expense of the succession, to take care of the seals and of the effects, of which an account is taken at the end of the proces-verbal of the affixing of the seals; the guardian must be domiciliated in the plaze where the inventory is taken. Id. art. 1079. And the judge; when he retires, must take with him the keys of all things and apartments upon which the seals have been affixed. lb.
7. The raising of the seals is done by the judge of the place, or justice of the peace appointed by him to that effect, in the presence of the witnesses of the vicinage, in the same manner as for the affixing of the seals. Id. art. 1084. See, generally; Benefit of Inventory, Succession; Code de Pro. Civ. 2e part. lib. 1, t. 1, 2, 3; Dict. de Jurisp. Scelle.
SEAMAN. A sailor; a mariner; one whose business is navigation. 2 Boulay Paty, Dr. Com. 232; Code de Commerce art. 262; Laws of Oleron, art. 7; Laws of Wishuy, art. 19. The term seamen, in it most enlarged sense, includes the captain a well as other persons of the crew; in a more confined signification, it extends only to the common sailors; 3 Pardes. n. 667; the mate; 1 Pet. Adm. Dee. 246; the cook and steward; 2 Id. 268; are considered, as to their rights to sue in the admiralty, as common seamen; and persons employed on board of steamboats and lighters, engaged in trade or commerce, on tide water, are within the admiralty jurisdiction, while those employed in ferry boats are not. Gilp. R. 203, 532. Persons who do not contribute their aid in navigating the vessel or to its preservation in the course of their occupation, as musicians, are not to be considered as seamen with a right to sue in the admiralty for their wages. Gilp. R. 516, See 1 Bell's Com. 509, 5th ed.; 2 Rob. Adm. R. 232; Dunl. Adm. Pr. h . t.
2. Seamen are employed either in merchant vessels for private service, or in public vessels for the service of the United States.
3. - 1. Seamen in the merchant vessels are required to enter into a contract in writing commonly called shipping articles. (q. v.) This contract being entered into, they are bound under. severe penalties, to render themselves on board the vessel according to the agreement: they are not at liberty to leave the ship without the consent of the captain or commanding officer, and for such absence, when less than forty-eight hours, they forfeit three day's wages for every day of absence; and when the absence is more than forty-eight hours, at one time, they forfeit all the wages due to them, and all their goods and chattels which were on board the vessel, or in any store where they may have been lodged at the time of their desertion, to the use of the owners of the vessel, and they are liable for damages for hiring other hands. They may be imprisoned for desertion until the ship is ready to bail.
4. On board, a seaman is bound to do his duty to the utmost of his ability; and when his services are required for extraordinary exertions, either in consequence of the death of other seamen, Or on account of unforeseen perils, he is not entitled to an increase of wages, although it may have been promised to him. 2 Campb. 317; Peake's N. P. Rep. 72; 1 T. R. 73. For disobedience of orders he may be imprisoned or punished with stripes, but the correction (q. v.) must be reasonable; 4 Mason, 508; Bee, 161; 2 Day, 294; 1 Wash. C. C. R. 316; and, for just cause, may be put ashore in a foreign country. 1 Pet. Adm. R. 186; 2 Ibid. 268; 2 East, Rep. 145. By act of Congress, September 28, 1850, Minot's Stat. at Large, U. S. p. 515, it is provided, that flogging in the navy and on board vessels of commerce, be, and the same is hereby abolished from and after the passage of this act.
5. Seamen are entitled to their wages, of which one-third is due at every port at which the vessel shall unlade and deliver her cargo, before the voyage be ended; and at the end of the voyage an easy and speedy remedy is given them to recover all unpaid wages. When taken sick a seaman is entitled to medical advice and aid at the expense of the ship: such expense being considered in, the nature of additional wages, and as constituting a just remuneration for his labor and services. Gilp. 435, 447; 2 Mason, 541; 2 Mass. R. 541.
6. The right of seamen to wages is founded not in the shipping articles, but in the services performed; Bee, 395; and to recover such wages the seaman has a triple remedy, against the vessel, the owner, and the master. Gilp. 592; Bee, 254.
7. When destitute in foreign ports, American consuls and commercial agents are required to provide for them, and for their passages to some port of the United States, in a reasonable manner, at the expense of the United States; and American vessels are bound to take such seamen on board at the request of the consul, but not exceeding two men for every hundred tons of the ship, and transport them to the United States, on such terms, not exceeding ten dollars for each person, as may be agreed on. Vide, generally, Story's Laws U. S. Index, h. t.; 3 Kent, Com, 136 to 156; Marsh. Ins. 90; Poth. Mar. Contr. translated by Cushing, Index, h. t.; 2 Bro. Civ. and Adm. Law, 155.
8. - 2. Seamen in the public service are governed by particular laws.
SEAMEN'S FUND. By the act of July 16, 1798, a provision is made for raising a fund for the relief of disabled and sick seamen: the master of every vessel arriving from a foreign port into the United States is required to pay to the collector of customs at the rate of twenty cents per month for every seaman employed on board of his vessel, which sum he may, retain out of the wages of such seaman: vessels engaged in the coasting trade, and boats, rafts or flats navigating the Mississippi, with intention to proceed to New Orleans, are also laid under similar obligations. The fund thus raised is to be employed by the president of the United States as circumstances shall require, for the benefit and convenience of sick and disabled American seamen. Act of March 3, 1802, s. 1.
2. By the act of congress, passed February 28, 1803, c. 62, 2 Story's L. U. S. 884, it is provided, that when a seaman is discharged in a foreign country with his own consent, or when the ship is sold there, he shall, in addition to his usual wages, be paid three months' wages into the hands of the American consul, two-thirds of which are to be paid to such seaman, on his engagement on board any vessel to return home, and the remaining one-third is retained in aid of a fund for the relief of distressed American seamen in foreign ports. See 11 John. R. 66; 12 John. Rep. 143; 1 Mason, R. 45; 4 Mason, R. 541; Edw. Adm. R. 239.
SEARCH, crim. law. An examination of a man's house, premises or person, for the purpose of discovering proof of his guilt in relation to some crime or misdemeanor of which be is accused.
2. The constitution of the United. States, amendments, art. 4, protects the people from unreasonable searches and seizures. 3 Story, Const. §1895; Rawle, Const. ch. 10, p. 127; 10 John. R. 263; 11 John. R. 500; 3 Cranch, 447.
3. By the act of March 2, 1799, s. 68, 1 Story's L. U. S. 632, it is enacted, that every collector, naval officer, and surveyor, or other person specially appointed, by either of them, for that purpose, shall have fall power and authority to enter any ship or vessel, in which they shall have reason to suspect any goods, wares, or merchandise, subject to duty, are concealed, and therein to search for, seize, and secure any such goods, wares, or merchandise; and if they shall have cause to suspect a concealment thereof in any particular dwelling house, store, building, or other place they or either of them shall; upon proper application, on oath, to any justice of the peace, be entitled to a warrant to enter such house, store, or other place, (in the day time only, and there to search for such goods; and if any shall be found, to seize and secure the same for trial; and all such goods, wares, and merchandise, on which the duties shall not have been paid, or secured to be paid, shall be forfeited.
SEARCH, practice. An examination made in the proper lien office for mortgages, liens, judgments, or other encumbrances, against real estate. The certificate given by the officer as to the result of such examination is also called a search.
2. Conveyancers and others who cause searches to be made ought to be very careful that they should be correct, with regard, 1. To the time during which the person against whom the search has been made owned the premises. 2. To the property searched against, which ought to be properly described. 3. To the form of the certificate of search.
SEARCH, RIGHT OF, mar. law. The right existing in a belligerent to examine and inspect the papers of a neutral vessel at sea. On the continent of Europe, this is called the right of visit. Dalloz, Dict. mots Prises Maritimes, n. 104-111.
2. The right does not extend to examine the cargo; nor does it extend to a ship of war, it being strictly confined to the searching of merchant vessels. The exercise of the right is to prevent the commerce of contraband goods. Although frequently resisted by powerful neutral nations, yet this right appears now to be fixed beyond contravention. The penalty for violently resisting this right is the confiscation of the property so withheld from visitation. Unless in extreme cases of gross abuse of his right by a belligerent, the neutral has no right to resist a search. 1 Kent, Com. 154; 2 Bro. Civ. and Adm. Law, 319; Mann. Comm. B. 3, c. 11.
SEARCH WARRANT, crim. law, practice. A warrant (q. v.) requiring the officer to whom it is addressed, to search a house or other place therein specified, for property therein alleged to have been stolen; and if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the warrant, or some other justice of the peace, or other lawfully authorized officer. It should be given under the hand and seal of the justice, and dated.
2. The constitution of the United States, amendments, art. 4, declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."
3. Lord Hale, 2 P. C. 149, 150, recommends great caution in granting such warrants. 1. That they be, not granted without oath made before a justice of a felony committed, and that the complainant has probable cause to suspect they are in such a house or place, and his reasons for such suspicion. 2. That such warrants express that the search shall be made in day time. 3. That they ought to be directed to a constable or other proper officer, and not to a private person. 4. A search warrant ought to command the officer to bring the stolen goods and the person in whose custody they are, before some justice of the peace. Vide 1 Chit. Cr. Law, 57, 64; 4 Inst. 176; Hawk. B. 2, c. 13, s. 17, n. 6; 11 St. Tr; 321; 2 Wils. 149, 291; Burn's Just. h. t.; Williams' Just. h. t.
SEARCHER, Eng. law. An officer of the customs, whose duty it is to examine and search all ships outward bound, to ascertain whether they have any prohibited or uncustomed goods on board.
SECK. This word has two significations. 1. It means a warrant of remedy by distress. Litt. s. 218; and vide Rent. 2. It imports want of present fruit or profit, as in the case of the reversion without rent or other service, except fealty. Co. Litt. 151 b, note 5.
SECOND. A measure equal to one sixtieth part of a minute. Vide Measure.
SECOND DELIVERANCE, practice. The name of a writ given by statute of Westminster the second, 13 Edw. 1. c. 2, founded on the record of a former action of replevin. 2 Inst. 341. It commands the sheriff, if the plaintiff make him secure of prosecuting his claim, and returning the chattels which were adjudged to the defendant by reason of the plaintiff's default, to make deliver-ance. On being nonsuited, the plaintiff in replevin might, at common law, have brought another replevin, and so in infinitum, to the intolerable vexation of the defendant. The statute of Westminster restrains the plaintiff When nonsuited from so doing, but allows him this writ, issuing out of the original record, in order to have the same distress delivered again to him, on his giving the like security as before. 3 Bl. Com. 150,; Hamm. N. P. 495; F. N. B. 68; 19 Vin. Ab. 1.
SECOND SURCHARGE, WRIT OF. The name of a writ issued in England against a commoner who has a second time surcharged the common. 3 Bl. Com. 239.
SECONDARY, construction. That which comes after the first, which is primary: as, the primary law of, nations the secondary law of nations.
SECONDARY, English law. An officer who is second or next to the chief officer; as secondaries to the prothonotaries of the courts of king's bench, or common pleas; secondary of the remembrancer in the exchequer, &c. Jacob, L. D. h. t.
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 Bouv. Inst. n. 3055.
SECONDS, crim. law. Those persons who assist, direct and support others engaged in fighting a duel.
2. As they are often much to blame in inciting the duellists to their rash act, and as they are always assisting in the commission of the crime, the laws generally punish them with severity but, in consequence of the false ideas too generally entertained on the subject of honor, the are too seldom enforced.
SECRET. That which is not to be revealed.
2. Attorneys and counsellors, who have been trusted professionally with the secrets of their clients, are not allowed to reveal them in a court of justice. The right of secrecy belongs to the client, and not to the attorney and counsellor.
3. As to the matter communicated, it extends to all cases where the client applies for professional advice or assistance; and it does not appear that the protection is qualified by any reference to proceedings pending or in contem-plation. Story, Eq. Pl. §600; 1 Milne & K. 104; 3 Sim. R. 467.
3. Documents confided professionally to the counsel cannot be demanded, unless indeed the party would himself be bound to produce them. Hare on Discov. 171. Grand jurors are sworn the commonwealth's secrets, their fellows and their own to keep. Vide Confidential comunications; Witness.
SECRET, rights. A knowledge of something which is unknown to orthers, out of which a profit may be made; for example, an invention of a machine, or the discovery of the effect of the combination of certain matters.
2. Instances have occurred of secrets of that kind being kept for many years, but they are liable to constant detection. As such secrets are not pro-perty, the possessors of them in general prefer making them public, and securing the exclusive right for years, under the patent laws, to keeping them in an insecure manner, without them. See Phil. on Pat. ch. 15; Gods. on Pat. 171; Dav. Pat. Cas. 429; 8 Ves. 215; 2 Ves. & B. 218; 2 Mer. 446; 3 Mer. 157; 1 Jac. & W. 394; 1 Pick. 443; 4 Mason, 15; 3 B. & P. 630.
SECRETARY. An officer who, by order of his superior, writes letters and other instruments. He is so called because he is possessed of the secrets of his employer. This term wag used in France in 1343, and in England the term secretary was first applied to the clerks of the king, who being always near his person were called clerks of the secret, and in the reign of Henry VIII. the term secretary of state came into it.
SECRETARY OF EMBASSY or OF LEGATION. An officer appointed by the sovereign power, to accompany a minister of first or secoud rank, and sometimes, though not often, of an inferior rank. He is, in fact, a species of public minister; for independently of his protection as attached to an ambassador's suite, be enjoys, in his own rights, the same protection of the law of nations, and the same immunities as an ambassador. But private secretaries of a minister must Dot be confounded with secretaries of embassy or of legation. Such private secretaries are entitled to protection only as belonging to the suite of the ambassador.
2. The functions of a secretary of legation consist in his employment by his minister for objects of ceremony; in making verbal reports to the secretary of state, or other foreign ministers; in taking care of the archives of the mission; in ciphering and deciphering despatches; in sometimes making rough draughts of the notes or letters whicb the minister writes to his colleagues or to the local authorities; in drawup proces verbaux; in presenting passports to the minister for his signature, and delivering them to the persons for whom they are intended; and, finally, in assisting the minister, under whom be is placed, in everything concerning the affairs of the mission. In the absence of the minister he is admitted to conferences and to present notes signed by the minister. Vide Ambassador; Minister; Suite.
SECRETARY OF LEGATION. An officer employed to attend a foreign mission, and to perform certain duties as clerk.
2. His salary is fixed by the act of congress of May 1, 1810, s. 1, at such a sum as the president of the United States may allow, not exceeding two thousand dollars.
3. The salary of a secretary of embassy, or the secretary of a minister plenipotentiary, is the same as that of a secretary of legation.
SECRETARY OF THE NAVY, government. This officer is appointed by the president. His duties are to execute all such orders as he shall receive from the president, relative to the procurement of naval stores and materials, and the construction, armament, equipment and employment of vessels of war; as well as all other matters connected with the naval establishment of the United States; act of 30th April, 1798, s. 1, 1 Story's Laws, 498; he appoints his own clerks and subordinate officers. Various other duties are imposed upon him by sundry acts of congress. Vide Gordon's Dig. art. 370 to 375.
2. His salary is six thousand dollars. Act of 20th Feb. 1819, 3 Story's Laws, 1720.
SECRETARY OF STATE OF THE UNITED STATES, government. The principal officer in the Department of State. (q. v.) He shall perform such duties as shall be enjoined on or entrusted to him by the president, agreeably to the constitution, refative to the correspondences, commissions or instructions to or with public ministers or consuls from the United States, or to negotiations with foreign states or princes, or to memorials or other applications from foreign public ministers or foreigners, or to such other matters respecting foreign affairs as the president of the United States shall assign to such department. The secretary shall conduct the business of his department in such manner as the president shall, from time to time, order or instruct. Act of 27th July, 1789 act of 15th Sept: 1789, s. 1. Besides these general laws, there are various, others which impose upon him inferior and less important duties.
2. His salary is six thousand dollars per annum. Act of 20th Feb. 1819.
SECRETARY OF THE TREASURY OF THE UNITEE STATES, government. An officer appointed by the president. His principal duties are, 1. To superintend the collection of the revenue. 2. To digest, prepare, and lay before congress at the commencement of every session, a report on the subject of finance. 3. To annex to the annual estimates of the appropriations required for the public service, a statement of the appropriations for the service of the year, which may have been made by former acts. 4. To give information to either house of congress, respecting all matters connected with his office. Besides these, there are other minor duties imposed upon him by various acts of congress.
2. His salary is six thousand dollars. Gord. Dig. art. 249 to 262.
SECRETARY FOR THE DEPARTMENT OF WAR, government. This officer is appointed by the president. He is required to perform and execute such duties as shall, from time to time, be enjoined on or entrusted to him by the president, agreeably to the constitution, relative to military commissions or to the land forces, or warlike stores of the United States, or to such other matters respecting military affairs as the president shall assign to the department of war, (q. v.) or relative to granting of lands to persons entitled thereto for military services rendered to the United States, or relative to Indian affairs. Act of 27th Aug., 1789, 1 Story's Laws, 31.
2. His salary is six thousand dollars per annum. Act of 20th Feb. 1819, 3 Story's Laws, 1720.
3. Various other duties are imposed upon the secretary by sundry acts of congress. Vide Laws, Index, Departments, &c.; Gordon's Dig. art. 368 to 382.
SECTA pleading. In ancient times the plaintiff was required to establish the truth of his declaration in the first instance, and before it was called in question, upon the pleading, by the simultaneous production of his secta, that is, a number of persons prepared to confirm his allegations. Bract. 214, a.
2. The practice of thus producing a secta, gave rise to the very. ancient formula almost invariably used at the conclusion of a declaration, as entered on the record, et inde producit sectam; and, though the actual production has, for many centuries, fallen into disuse, the formula still remains. Accordingly, except the count on a writ of right, and in dower, all declarations constantly conclude thus, "And therefore he brings his suit, &c. The count on a writ of right did not, in ancient times, conclude with the ordinary production of suit, but with the following formula peculiar to itself, "Et quod tale sit jus suum offert disrationare per corpus, talis liberi hominis, &c., and it concludes, at the present day, with an abbreviated. translation of the same phrase: "And, that such is his right, he offers," &c. The count in dower is an exception to the rule in question, and concludes without any production of suit, a peculiarity which appears always to have belonged to that action. Steph. Pl. 427, 8; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399.
SECTION OF LAND. The lands of the United States are surveyed into parcels of six hundred and forty acres; each such parcel is called a section. 1 Story's L. U. S. 422.
2. These sections are divided into half sections, each of which contains three hundred and twenty acres, and into quarter sections of one hundred and sixty acres each.
SECTORES. Among the Romans the bidders at an auction were so called. Bab. on Auct. 2.
TO SECURE. To protect, insure, or save a right.
2. The constitution of the United States, art. 1, s. 8, gives power to congress "to promote the progress of science and the useful arts by securing, for Iimited times, to authors and inventors the exclusive right to their respective writings and discoveries." The inventor of a machine has the right to it exclusively at common law, and the author a right to his manuscript. But they may abandon the, right by publishing the book without having secured a copy-right, (q. v.) or by using publicly the machine, and suffering others to use it, without having obtained a patent. (q. v.) Vide Secret.
SECURITY. That which renders a matter sure; an instrument which renders certain the performance of a contract. The term is also sometimes applied to designate a person who becomes the surety for another, or who engages himself for the performance of another's contract. See 3 Blackf. R. 431.
SECURITY FOR COSTS, practice. In some courts there is a rule that when the plaintiff resides abroad he shall give security for costs, and until that has been done, when demanded, he cannot proceed in his action.
2. This is a right which the defendant must claim in proper time, for if he once waives it, he cannot afterwards claim it; the waiver is seldom, or perhaps never expressly made, but is generally implied from the acts of the de-fendant. When the defendant had undertaken to accept short notice of trial; 2 Hen. Bl. 573; 3 Taunt. 272 or after issue joined, and when he knew of plain-tiff's residence abroad; or, with such knowledge, when the defendant takes any step in the cause these several acts will amount to a waiver. 5 Bar & Ald. 702; S. C. 1 Dow. & Ryl. 348; 1 M. & P. 30; S. C. 17 E. C. L. R. 164. Vide 3 John. Ch. R. 520; 1 John. Ch. Rep. 202; 1 Ves. jun. 396.
3. The fact that the defendant is out of the jurisdiction of the court, will not, alone, authorize the requisition of security for costs; he must have his domicil abroad. 1 Ves. jr. 396. When, the defendant resides abroad, he will be required to give such security, although he is a foreign prince. 33 E. C. L. Rep. 214. Vide 11 S. & Rawle, 121 1 Miles, R. 321; 2 Miles, 402.
SECUS. Otherwise.
SEDITION, crimes. The raising commotions or disturbances in the state; it is a revolt against legitimate authority, Ersk. Princ. Laws, Scotl. b. 4, t. 4, s. 14; Dig. Lib. 49, t. 16, 1. 3, §19.
2. The distinction between sedition and treason consists in this, that though its ultimate object is a violation of the public peace, or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or the subversion of the constitution. Alis. Crim. Law of Scotl. 580.
3. The. obnoxious and obsolete act of July 14, 1798, 1 Story's Laws U. S. 543, was called the sedition law, because its professed object was to prevent disturbances.
4. In the Scotch law, sedition is either verbal or real. Verbal is inferred from the uttering of words tending to create discord between the king and his people; real sedition is generally committed by convocating together any considerable number of people, without lawful authority, under the pretence of redressing some public grievance, to the disturbing of the public peace. 1 Ersk. ut supra.
SEDUCTION. The offence of a man who abuses the simplicity and confidence of a woman to obtain by false promises what she ought not to grant.
2. The woman being particeps criminis, has no remedy for the mere seduction, nor is there, to the discredit of the law, a direct remedy in her parents. The seducer may be sued, though not. directly or ostensibly for the seduction; but for the consequent inability to perform those services for which she was accountable to her master, or to her parent, who, for this purpose, is obliged to assume that less endearing relation; and if it cannot be proved that she filled that office, the action cannot be sustained. 7 Mann. & Gr. 1033. It follows, therefore, that when the daughter is of full age, and the father is not entitled to her services, and actually, she is not in his service, the father can maintain no action for the seduction. 5 Harr. & J. 27; 1 Wend. 447; 3 Pennsyl. 49; 10 John. 115. Vide 2 Watts 474; 9 John. 387; 2 Wend. 459; 5 Cowen 106; 2 Penn. 583; 6 Munf. 587; 2 A. K. Marsh. 128; 2 Overt. 93; 9 John. R. 387; 2 New Reports, 476; 6 East, 887; Peake's Rep. 253; 11 East, 24; 5 East, 45; 2 T. R. 4; 2 Selw. N. P. 1001; 2 Phil. Ev. 156; 3 Chitt. Bl. Com. 140, n.; 7 Com. Dig. 318; 6 M. & W. 55.
SEEDS. The substance which nature prepares for the reproduction of plants or animals.
2. Seeds which have been sown in the earth immediately become a part of the land in which they have been sown; quae sata solo cedere intelliguntur. Inst. 2, 1, 32.
SEIGNIOR or SEIGNEUR. Among the feudists, this name signified lord of the fee. F. N. B. 23. The most extended signification of this word includes not only a lord or peer of parliament, but is applied to the owner or proprietor of a thing; hence, the owner of a hawk, and the master of a fishing vessel, is called a seigneur. 37 Edw. Ill. c. 19; Barr. on the Stat. 258.
SEIGNIORY, Eng. law. The rights of a lord as such, in lands. Swinb. 174.
SEISIN, estates. The possession of an estate of freebold. 8 N. H. Rep. 57; 3 Hamm. 220; 8 Litt. 134; 4 Mass. 408. Seisin was used in contradistinction to that precarious kind of possession by which tenants in villenage held their lands, which was considered to be the possession of their lords in, whom the freehold continued.
2. Seisin is either in fact or in law.
3. Where a freehold estate is conveyed to a person by feoffment, with livery of seisin, or by any of those conveyances which derive their effect from the statute of uses, he acquires a seisin in deed or in fact, and a freehold in deed: but where the freehold comes to a person by act of law, as by descent, he only acquires a seisin in law, that is, a right of possession, and his-estate is called a freehold In law.
4. The seisin in law, which the heir acquires on the death of his ancestor, May be defeated by the entry of a stranger, claiming a right to the land, which is called an abatement. (q. v.)
5. The actual seisin of an estate may be lost by the forcible entry of a stranger who thereby ousts or dispossesses the owner this act is called a disseisin. (q. v.)
6. According to Lord Mansfield, the various alterations which have been made in the law for the last three centuries, "have left us but the name of feoffment, seisin, tenure, and, freeholder, without any precise knowledge of the thing originally signified by these sounds."
7. In the United States, a conveyance by deed executed and acknowledged, and properly recorded according to law, and the descent cast upon the heir are, in general, considered as a seisin in deed without entry; and a grant by letters- patent from the commonwealth has the same effect. 4 Mass. R. 546; 7 Mass. R. 494; 15. Mass. R. 214 1 Munf. R. 17O. The recording of a deed is equivalent to livery of seisin. 4 Mass. 546.
8. In Pennsylvania, Connecticut, Massachusetts and Ohio, seisin means merely, ownership, and the distinction between seisin in deed and in law is not known in practice. Walk. Intr. 324, 330; 1 Hill. Abr. 24 4 Day, R. 305; 4 Mass.; R. 489 14 Pick. R. 224. A patent by the commonwealth, in Kentucky, gives a, right entry, but not actual seisin. 3 Bibb, Rep. 57. Vide 1 Inst. 31; 19 Vin. Ab. 306; Dane's Abr. c. 104, a. 3; 4 Kent, Com. 2, 381; Cruise's Dig. t. 1, §23; Toull. Dr. Civ. Fr. liv. 3, t. 1, c. 1, n. 80; Poth. Traite des Fiefs, part 1, c. 2; 3 Sumn. R. 170. Vide Livery of Seisin.
SEIZURE, practice. The act of taking possession of the property of a person condemned by the judgment of a competent tribunal, to pay a certain sum of money, by a sheriff, constable, or other officer, lawfully authorized thereto, by virtue of an execution, for the purpose of having such property sold according to law to satisfy the judgment. By seizure is also meant the taking possession of goods for a violation of a public law; as the taking possession of a ship for attempting an illicit trade. 2 Cranch, 18 7; 6 Cowen, 404; 4 Wheat. 100; 1 Gallis. 75; 2 Wash. C. C. 127, 567.
2. The seizure is complete as soon as the goods are within the power of the officer. 3 Rawle's Rep. 401; 16 Johns. Rep. 287; 2 Nott & McCord, 392; 2 Rawle's Rep. 142; Wats. on Sher. 172; Com. Dig. Execution, C 5.
3. The taking of part of the goods in a house, however, by virtue of a fieri facias in the name of the whole, is a good seizure of all. 8 East, R. 474. As the seizure must be made by virtue of an execution, it is evident that it cannot be made after the return day. 2 Caine's Rep. 243; 4 John. R. 450. Vide Door; House; Search Warrant.
SELECTI JUDICES. Judges among the Romans who were selected very much like our juries. They were returned by the praetor, drawn by lot, subject to be challenged and sworn. 3 Bl. Com. 366.
SELF-DEFENCE, crim. law. The right to protect one's person and property from injury.
2. It will be proper to consider, 1. The extent of the right of self-defence. 2. By whom it may be exercised. 3. Against whom. 4. For what causes.
3. - 1. As to the extent of the right, it may be laid down, first, that when threatened violence exists, it is the duty of the person threatened to use all, prudent and precautionary measures to prevent the attack; for example, if by closing a door which was usually left open, one could prevent an attack, it would be prudent, and perhaps the law might require, that it should be closed, in order to preserve the peace, and the aggressor might in such case be held to bail for his good behaviour; secondly, if, after having taken such proper precautions, a party should be assailed, he may undoubtedly repel force by force, but in most instances cannot, under the pretext that he has been attacked, use force enough to kill the assailant or hurt him after he has secured himself from danger; as, if a person unarmed enters a house to commit a larceny, while there he does not threaten any one, nor does any act which manifests an intention to hurt any one, and there are a number of persons present, who may easily secure him, no one will be justifiable to do him any injury, much less to kill him; he ought to be secured and delivered to the public authorities. But when an attack is made by a thief under such circumstances, and it is impossible to ascertain to what extent he may push it, the law does not requite the party assailed to weigh with great nicety the probable extent of the attack, and he may use the most violent means against his assailant, even to the taking of his life. For homicide may be excused, se defendendo, where a man has no other probable means of preserving his life from one who attacks him, while in the commission of a felony, or even on a sudden quarrel, he beats him, so that he is reduced to this inevitable necessity. Hawk. bk. 2, c. 11, s. 13. And the reason is that when so reduced, he cannot call to his aid the power of society or of the commonwealth, and, being unprotected by law, he reassumes his natural rights, which the law sanctions, of killing his adversary to protect himself. Toull. Dr. Civ. Fr. ]iv. 1, tit. 1, n. 210. See Pamph. Rep. of Selfridge's Trial in 1806 2 Swift's Ev. 283.
4. - 2. The party attacked may undoubtedly defend himself, and the law further sanctions the mutual and reciprocal defence of such as stand in the near relations of hushand and wife, patent and child, and master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in their person or property, it is lawful for him to repel force by force, for the law in these cases respects the passions of the human mind, and makes, it lawful in him, when external violence is offered to himself, or to those to whom he bears so near a connexion, to do that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. 2 Roll. Ab. 546; 1 Chit. Pr. 592.
5. - 3. The party making the attack may be resisted, and if several persons join in such attack they may all be resisted, and one may be killed although he may not himself have given the immediate cause for such killing, if by his presence and his acts, he has aided the assailant. See Conspiracy.
6. - 4. The cases for which a man may defend himself are of two kinds; first, when a felony is attempted, and, secondly, when, no felony is attempted or apprehended.
7. - 1st. A man may defend himself, and even commit a homicide for the prevention of any forcible and atrocious crime, which if completed would amount to a felony; and of course under the like circumstances, mayhem, wounding and battery would be excusable at common law. 1 East, P. C. 271; 4 Bl. Com. 180. A man may repel force by force in defence of his person, property or habitation, against any one who manifests, intends, attempts, or endeavors, by violence or surprise, to commit a forcible felony, such as murder, rape, robbery, arson, burglary and the like. In these cases he is not required to retreat, but he may resist, and even pursue his adversary, until he has secured himself from all danger.
8. - 2d. A man may defend himself when no felony has been threatened or attempted; 1. When the assailant attempts to beat another and there is no mutual combat; as, where one meets another and attempts to commit or does commit an assault and battery on him, the person attacked may defend himself; and an offer or, attempt to strike another, when sufficiently near, so that that there is danger, the person assailed may strike first, and is not required to wait until he has been struk. Bull. N. P. 18; 2 Roll. Ab. 547. 2. When there is a mutual combat upon a sudden quarrel. In these cases both parties are the aggressors; and if in the fight one is killed it will be manslaughter at least, unless the survivor can prove two things: 1st. That before the mortal stroke was given be had refused any further combat, and had retreated as far as he could with safety; and 2d. That he killed his adversary from necessity, to avoid his own destruction.
9. A man may defend himself against animals, and he may during the attack kill them, but not afterwards. 1 Car. & P. 106; 13 John. 312; 10 John. 365.
10. As a general rule no man is allowed to defend himself with force if he can apply to the law for redress, and the law gives him a complete remedy, See Assault; Battery; Necessity; Trespass.
SELECTMEN. The name of certain officers in several of the United States, who are invested by the statutes of the several states with various powers.
SELLER, contracts. One who disposes of a thing in consideration of money; a
vendor.
2. This term is more usually applied in the sale of chattels, that of vendor in the sale of estates.
3. The duties of the seller are, 1. To deal with fairness. 2. To deliver the thing sold at the time and place appointed, and to take care of it until deli-very; but when everything the seller has to do with the goods is complete, the property and the risk of accident to the goods, rests in the buyer, even before delivery, or payment. Noy's Max. ch. 24; 7 East, 571; 2 Bl. Com. 448. 3. To warrant the title of personal property when he sells it as his own, when it is in his possession. 2 Kent, Com. 374; 1 Lord Raym. 593; 1 Salk. 210.
4. The rights of the seller are, 1. To be paid the price agreed upon. 2. To be indemnified for any expenses he may have incurred to preserve the thing sold for the buyer, after the title to it has passed to the latter. 3. To stop the thing in transitu when the buyer has failed and the price has not been paid . See Stoppage, in transitu. Vide Purchaser, and the authorities there cited; Bouv. Inst. Index, h. t.
SEMBLE. A French word which signifies, it seems. It is commonly used before the statement of a point of law which has not been directly settled; but about which the court have expressed an opinion, and intimated what it is.
SEMI-PROOF, civ. law. Presumptions of fact are so called. This degree of proof is thus deaned: "Non est ignorandum, probationem semiplenam eam esse, per quam rei gestae fides aliqua fit judici; non tamen tanta ut jure debeat in pronuncianda sententia eam sequi." Mascardus, De Prob. vol. 1, Quaest. 11, n. 1, 4.
SEMINAUFRAGIUM. A term used by Italian lawyers, which literally signifies half-shipwreck, and by which they understand the jetsam, or casting merchan-dise into the sea to prevent shipwreck. Locre, Esp. du Code de Com. art. 409. It also signifies the state of a vessel which has been so much injured by tem-pest or accident, that to repair the damages, after being brought into port, and prepare her for sea, would cost more than her worth. 4 Law Rep. 120.
SEMPER PARATUS. The name of a plea by which the defendant alleges that he has always been ready to perform what is demanded of him. 3 Bl. Com. 303. The same as Tout temps prist. (q. v.)
SEN. This is said to be an ancient word which signified justice. Co. Litt. 61 a.
SENATE, government. The less numerous branch of the legislature.
2. The constitution of the United States, article 1, s. 3, cl. 1, directs that "the senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years; and each senator shall have one vote." The vice president of the United States," to use the language of the constitution, art. 1, s. 3, cl. 4, "shall be president of the senate, but shall have no vote unless they be equally divided." In the senate each state in its political capacity, is represented, upon a footing of perfect equality, like a congress of sovereigns or ambassadors, or like an assembly of peers. It is unlike the house of representatives. where the people are represented. Story, Const. ch. 10.
3. The senate of the United States is invested with legislative, executive and judicial powers.
4. - 1. It is a legislative body whose concurrence is requisite to the passage of every law. It may originate any bill, except those for raising rev-enue, which shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. Const. art. 1, s. 7, el. I.
5. - 2. The senate is invested with executive authority in concluding treaties and making appointments. Vide President of the United States of America.
6. - 3. It is invested with judicial power when it is formed into a court for the trial of impeachments. See Courts of the United States.
7. In most of the states the less numerous branch of the legislature bears the title of senate. In such a body the people are represented as well as in the other house. Vide article Congress; and, for the senates of the several states, the name of each state. See, also, articles Courts of the United States, I; House of Representatives; Vice-President of the United States.
SENATOR, government. One who is a member of a senate.
2. No person shall be a senator [of the national senate] who shall not have attained the age of thirty years, and been nine years a citizen of the United States and who shall not when elected, be an inhabitant of that state for which he shall be chosen. Const. U. S. art. 1, s. 3, cl. 5. Vide 1 Kent, Com. 224 Story on the Const. 726 to 730.
SENATUS CONSULTUM, civ. law. A decree or decision of the Roman senate, which had the force of law.
2. When the Roman people had so increased that there was no place where they could meet, it was found necessary to consult the senate instead of the people, both on public affairs and those which related to individuals. The opinion which was rendered on such an occasion was called senatus consultum. Inst. 1, 2, 5; Clef des Lois Rom. h. t.; Merl. Repert. h. t. These decrees frequently derived their titles from the names of the consuls or magistrates who proposed them; as, senatus-consultum Claudianum, Libonianum, Velleianum, &c. from Claudius, Libonius, Valleius. Ail. Pand. 30.
SENESCHALLUS. A steward. Co. Litt. 61 a.
SENILITY. The state of being old.
2. Sometimes in this state it is exceedingly difficult to know whether the individual is or is not so deprived of the powers of his mind as to be unable to manage his affairs. In general, senility of energy in some of the intellectual operations, while the affections remain natural and unperverted; such a state may, however, be followed by actual dementia or idiocy.
3. When on account of senility the party is unable to manage his affairs, a committee will be appointed as in case of lunacy. 1 Coll. on Lunacy, 66; 2 John. Ch. R. 232; 12 Ves. 446; 4 Call's R. 423; 5 John. Ch. R. 158; 8 Mass. 129; 2 Ves. sen. 407; 19 Ves. 285; 2 Cyclop. of Pract. Med. 872. See Aged Witness.
SENIOR. The elder. This addition is sometimes made to a man's name, when two persons bear the same, in order to distinguish them. In practice when nothing is mentioned, the senior is intended. 3 Miss. R. 59. See Junior.
SENTENCE. A judgment, or judicial declaration made by a judge in a cause. The term judgment is more usually applied to civil, and sentence to criminal proceedings.
2. Sentences are final, when they put, an end to the case; or interlocutory, when they settle only some incidental matter which has arisen in the course of its progress. Vide Aso & Man. Inst. B. 3, t. 8, c. 1.
SEPARALITER. Separately.
2. This word is sometimes used in indictments to show that the defendants are charged separately with offences, which, without the addition of this word, would seem, from the form of the indictment, to be charged jointly; as, for example, when two persons are indicted together for perjury, and the indictment states that A and B came before a commissioner, &c., this is alleging that they were both guilty of the same crime, when by law their crimes are distinct, and the indictment is vicious; but if the word separaliter is used, then the affirmation is that each was guilty of a separate offence. 2 Hale, P. C. 174.
SEPARATE ESTATE. That which belongs to one only of several persons; as, the separate estate of a partner, which does not belong to the partnership. 2 Bouv. Inst. n. 1519.
2. The separate estate of a married woman, is that which belongs to her, and over which her hushand has no right in equity. It may consist of lands or chattels. 4 Barb. S. C. Rep. 407; 1 Const. R. 452; 4 Bouv. Inst. n. 3996.
SEPARATE MAINTENANCE, contracts. An allowance made by a hushand to his wife for her separate support and maintenance.
2. When this allowance is regularly paid, and notice of it has been given, no person who has received such notice will be entitled to recover against the hushand for necessaries furnished to the wife, because the liability of the hushand, depends on a presumption of authority delegated by him to the wife, which is negatived by the facts of the case. 2 Stark. Ev. 699.
SEPARATE TRIAL, practice. The trial of one person by himself, when he is jointly indicted with others for an alleged offence.
2. On a joint indictment against two or more defendants for a crime of misdemeanor, it is in the discretion of the court whether to allow a separate trial for each prisoner, or to order the whole of them to be tried together. 1 Baldw. Rep. 81; 12 Wheat. 480; 5 Serg. & Rawle, 60; but see 1 Pet., C. C. Rep. 118.
SEPARATION, contracts. When the hushand and wife agree to live apart they are said to have made a separation.
2. Contracts of this kind are generally made by the hushand for himself and by the wife with trustees. 4 Paige's R. 516; 3 Paige's R. 483; 5 Bligh, N. S. 339; 1 Dow & Clark, 519. This contract does not affect the marriage, and the parties may, at any time agree to live together as hushand and wife. The hushand who has agreed to a total separation cannot bring an action for criminal conversation with the wife. Roper, Hush. and Wife, passim; 4 Vin. Ab. 173; 2 Stark. Ev. 698; Shelf. on Mar. & Div. ch. 6, p. 608.
3. Reconciliation after separation supersedes special articles of separation in courts of law and equity. 1 Dowl. P. C. 245; 2 Cox, R. 105; 3 Bro. C. C. 619, n.; 11 Ves. 532. Public policy forbids that parties should be permitted to make agreements for themselves to hold good whenever they choose to live separate. 5 Bligh, N. S. 367, 375; and see 1 Carr. & P. 36. See 5 Bligh, N. S. 339; 2 Dowl. P. C. 332; 2 C. & M. 388; 3 John. Ch. R. 521; 2 Sim. & Stu. 372; 1 Edw. R. 380; Desaus. R. 45, 198; 1 Y. & C. 28; 11 Ves. 526; 2 East, R. 283; 8 N. H. Rep. 350; 1 Hoff. R. 1.
SEPULCHRE. The place where a corpse is buried. The violation of sepulchres is a misdemeanor at common law. Vide Dead bodies.
TO SEQUESTER, civil and eccles. law. To renounce. Example, when a widow comes into court and disclaims having anything to do, or to intermeddle with her deceased hushand's estate, she is said to sequester. Jacob, L. D. h. t.
SEQUESTRATION, chancery practice. The process of sequestration is a writ of commission, sometimes directed to the sheriff, but most usually, to four or more commissioners of the complainant's own nomination, authorizing them to enter upon the real or personal estate of the defendant, and to take the rents, issues and profits into their own hands, and keep possession of, or pay the same as the court shall order and direct, until the party who is in contempt shall do that which he is enjoined to do, and which is specially mentioned in the writ. 1 Harr. Ch. 191; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
2. Upon the return of non est inventus to a commission of rebellion, a ser-geant-at-arms may be moved for; and if he certifies that the defendant cannot be taken, a motion may be made upon his certificate, for an order for a sequestration. 2 Madd. Chan. 203; Newl. Ch. Pr. 18; Blake's Ch. Pr. 103.
3. Under a sequestration upon mesne process, as in respect of a contempt for want of appearance or answer, the sequestrators may take possession of the party's personal property and keep him out of possession; but no sale can take place, unless perhaps to pay expenses; for this process is only to form the foundation of taking the bill pro confesso. After a decree it may be sold. See 3 Bro. C. C. 72; 2 Cox, 224; 1 Ves. jr. 86; 3 Bro. C. C. 372; 2 Madd. Ch. Pr. 206. See, generally, as to this species of sequestration, 19 Vin. Abr. 325; Bac. Ab. h. t.; Com.; Chancery, D 7, Y 4; 1 Hov. Supp. to Ves. jr. 25 to 29; 1 Vern. by Raith. 58, note 1; Id. 421, note 1.
SEQUESTRATION, contracts. A species of deposit, which two or more persons, engaged in litigation about anything, make of the thing in contest to an indifferent person, who binds himself to restore it when the issue is decided, to the party to whom it is adjudged to belong. Louis. Code, art. 2942; Story on Bailm: §45. Vide 19 Vin. Ab. 325; 1 Supp. to Yes. jr. 29; 1 Vern. 58, 420; 2 Ves. jr. 23; Bac. Ab. h. t. 2. This is called a conventional sequestration, to distinguish it from a judicial sequestration, which is considered in the preceding article. Sec Dalloz, Dict. mot Sequestre.
SEQUESTRATION, Louisiana practice. The Code of Practice in civil cases in Louisiana, defines and makes the following provisions on the subject of sequestration. Art. 269. Sequestration is a mandate of the court, ordering the sheriff, in certain cases, to take in his possession, and to keep a thing of which another person has the possession, until after the decision of a suit, in order that it be delivered to him who shall be adjudged entitled to have the property or possession of that thing. This is what is properly called a judicial sequestratian. Vide 1 Mart. R. 79; 1 L. R. 439; Civil Code of Lo. 2941; 2948.
2. - Art. 270. In this acceptation, the word sequestration does not mean a judicial deposit, because sequestration may exist together with the right of administration, while mere deposit does not admit it.
3. - Art. 271. All species of property, real or personal, as well as the revenue proceeding from the same, may be sequestered.
4. - Art. 272. Obligations and titles may also be sequestered, when their ownership is in dispute.
5. - Art. 273. Judicial sequestration is generally ordered only at the request of one of the parties to a suit; there are cases, nevertheless, where it is decreed by the court without such request, or is the consequence of the execution of judgments.
6. - Art. 274. The court may order, ex officio, the sequestration of real property in suits, where the ownership of such property is in dispute and when one of the contending parties does not seem to have a more apparent right to the possession than the other. In such cases, sequestration may be ordered to continue, until the question of ownership shall have been decided.
7. - Art. 275. Sequestration may be ordered at the request of one of the parties in a suit in the following cases: 1. When one who had possessed for more than one year, has been evicted through violence, and sues to be restored to his possession. 2. When one sues for the possession of movable property, or of a slave, and fears that the party having possession, may ill treat the slave or send either that slave, or the property in dispute, out of the jurisdiction of the court, during the pendency of the suit. 3. When one claims the ownership, or the possession of real property, and has good ground to appre-hend, that the defendant may make use of his possession to dilapidate or to waste the fruits or revenues produced by such property, or convert them to his own use. 4. When a woman sues for a separation from bed and board, or only for a separation of property from her hushand, and has reason to apprehend that he will ruin her dotal property, or waste the fruits or revenues produced by the same during the pendency of the action. 5. When one has petitioned for a stay of proceedings, and a meeting of his creditors, and such creditors fear that he may avail himself of such stay of proceedings, to place the whole, or a part of his property, out of their reach. 6. A creditor by special mortgage shall have the power of sequestering the mortgaged property, when he appre-hends that it will be removed out of the state before he can have the benefit of his mortgage, and will make oath of the facts which induced his apprehension.
8. - Art. 276. A plaintiff wishing to obtain an order of sequestration in any one of the cases above provided, must annex to the petition in which he prays for such an order, an affidavit, setting forth the cause for which he claims such order, he must besides, execute his obligation in favor of the defendant, for such sum as the court shall determine, with the surety of one good and solvent person, residing within the jurisdiction of the court, to be responsible for such damages as the defendant may sustain, in case such sequestration should have been wrongfully obtained.
9. - Art. 277. When security is given in order to obtain the sequestration of real property which brings a revenue, the judge must require that it be given for an amount sufficient to compensate the defendant, not only for all damage which he may sustain, but also for the privation of such revenue, during the pendency of the action.
10. - Art. 278. The plaintiff when he prays for a sequestration of the property of one who has failed, is not required to give such security, though that property bring in a revenue.
11. - Art. 279. A defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside, by executing his obligation in favor of the sheriff, with one good and solvent surety, for whatever amount the judge may determine, as being equal to the value of the property to be left in his possession.
12. - Art. 280. The security thus given by the defendant, when the property sequestrated consists in movables or in slaves, shall be responsible that he shall not send away the same out of the jurisdiction of the court; that he shall not make an improper use of them; and that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff.
13. - Art. 281. As regards landed property, this security is given to prevent the defendant, while in possession, from wasting the property, and for the faithful restitution of the fruits that he may have received since the demand, or of their value in the event of his being cast in the suit.
14. - Art. 282. When the sheriff has sequestered property pursuant to an order of the court, he shall, after serving the petition and the copy of the order of sequestration on the defendant, send him return in writing to the clerk of the court which gave the order, stating in the same in what manner the order was executed, and annex to such return a true and minute inventory of the property sequestered, drawn by him, in the presence of two witnesses.
15. - Art. 283. The sheriff, while he retains possession of sequestered property, is bound to take proper care of the same and to administer the same, if it be of such nature as to admit of it, as a prudent father of a family administers his own affairs. He may confide them to the care of guardians or overseers, for whose acts he remains responsible, and he will be entitled to receive a just compensation for his administration, to be determined by the court, to be paid to him out of the proceeds of the property sequestered, if judgment be given in favor of the plaintiff.
SEQUESTRATOR. One to whom a sequestration is made.
2. A depositary of this kind cannot exonerate himself from the care of the thing sequestered in his hands, unless for some cause rendering it indispens-able that he should resign his trust. Louis. Code, art. 2947. See Stakeholder. Sequestrators are also officers appointed by a court of chancery, and named in a writ of sequestration. As to their powers and duties, see 2 Madd. Ch. Pr. 205, 6; Blake's Ch. Pr. 103; Newl. Ch. Pr. 18, 19; 1 Harr. Ch. 191.
SERF. During the feudal times certain persons who were bound to perform very onerous duties towards others, were so called. Poth. Des Personnes, p. 1, t. 1, a. 6, s. 4. There is this essential difference between a serf and a slave; the serf was bound simply to labor on the soil where he was born, without any right to go elsewhere without the consent of his lord; but he was free to act as he pleased in his daily action: the slave on the contrary is the property of his master, who may require him to act as he pleases in every respect, and who may sell him as a chattel. Lepage, Science du Droit, c. 3, art. 2, §2.
SERGEANT or SERJEANT, Engl. law. An officer in the courts of the highest grade among the practitioners of the law.
SERGEANT or SERJEANT, in the army. An inferior officer of a company of foot, or troop of dragoons appointed to see discipline observed, to teach the soldiers the exercise of their arms, and to order, straighten and form ranks, files, &c.
SERGEANT AT ARMS, An officer appointed by a legislative body, whose duties are to enforce the orders given by such bodies, generally under the warrant of its presiding officer.
SERIATIM. In a series, severally; as, the judges delivered their opinions seriatim.
SERJEANTY, Eng. law. A species of service which cannot be due or performed from a tenant to any lord but the king; and is either grand or petit serjeanty.
SERVANTS, (negro or mulatto,) Pennsylvania. By the fourth section of the act for the gradual abolition of slavery, passed the first day of March, 1780, 1 Smith's Laws of Penn. 492, it is "provided that every negro or mulatto child, born within this state after the passing of this act, (who would in case this act had not been made, have been a servant for years, or life, or a slave) shall be by virtue of this act the servant of such person, or his assigns who would in such case have been entitled to the service of such child, until such child attain unto the age of twenty-eight years, in the manner and on the conditions, whereon servants bound by indenture for four years are or may be retained or holden; and shall be liable to like correction and punishment, and entitled to like relief, in case he be evilly treated by his master, and to like freedom dues and privileges, as servants bound by indenture for four years are entitled, unless the person to whom such services belong shall abandon his claim to the same; in which case the overseers of the poor where such child shall be abandoned shall by indenture bind out every such child so abandoned as an apprentice for a time not exceeding the age hereinbefore limited for the service of such children." And by the thirteenth section it is enac-ted, "that no covenant of personal servitude or apprenticeship whatsoever shall be valid or binding on a negro or mulatto for a longer time than seven years, unless such servant or apprentice were at the commencement of such servitude or apprenticeship, under the age of twenty-one years, in which case such negro or mulatto may be holden as a servant or apprentice, respectively, according to the covenant, as the case shall be, until he shall attain the age of twenty-eight years, but no longer." See 6 Binn. 204; 1 Browne's R. 369, n.
2. The act requires that a register of such children as would have been slaves shall be kept by a public officer therein designated. The want of registry entitles such child to freedom.
SERVANTS. In Louisiana they are divided into free servants and slaves. See Slaves; Slavery.
2. Free servants are, in general, all free persons who let, hire, or engage their services to another in the state, to be employed therein at any work, commerce, or occupation whatever, for the benefit of him who has contracted with them, for a certain sum or retribution, or upon certain conditions.
3. There are three kinds of free servants in the state, to wit:
4. - 1. Those who only hire out their services by the day, week, month, or year, in consideration of certain wages.
5. - 2. Those who engage to serve for a fixed time for a certain consideration, and who are therefore considered not as having hired out, but as having sold their services.
6. - 3. Apprentices that is, those who engage to serve any one, in order to learn some art, trade, or profession. Civ. Code of Lo. art. 155, 156, 157.
SERVANTS, menial. Domestics those who receive wages, and who are lodged and fed in the house of another, and who are employed in his services. Such servants are not particularly recognized by law. They are called menial servants, or domestics, from living infra moenia, within the walls of the house. 1 Bl. Com. 324; Wood's Inst. 53; 1 Sw. Syst. 218. The right of the master to their services in every respect is grounded on the contract between them. 2. Labor-ers, or persons hired by the day's work, or any longer time, are not considered servants. 1 Sw. Syst. 218; 5 Binn. 167; 3 Serg. & Rawle, 351. Vide 12 Ves. 114; 2 Vern. 546; 16 Ves. 486; 1 Rop. on Leg. 121; 3 Deac. & Chit. 332; 1 Mont. & Bligh. 413; 2 Mart. N. S. 652; Poth. Proc. Civ. sect. 2, art. 5, §5; Poth. Ob. n. 710, 828, French ed.; 9 Toull. n. 314; Domestic; Operative.
SERVI. This name was given by the Romans to their slaves; they were so called from servare, to preserve, from the ancient practice of the generals of the army, who were accustomed to sell their captives, and preserved them rather than kill them: servi autem ex eo appellati sunt, quod imperatores captivos vendere, ac per hoc servare, nec occidere solent. Inst. 1 3, 3.
SERVICE, contracts. The being employed to serve another.
2. In cases of seduction, the gist of the action is not injury which the seducer has inflicted on the parent by destroying his peace of mind, and the reputation of his child, but for the consequent inability to perform those services for which she was accountable to her master or her parent who assumes this character for the purpose Vide Seduction, and 2 Mees. & W. 539; 7 Car. & P. 528.
SERVICE, feudal law. That duty which the tenant owes to his lord, by reason of his fee or estate.
2. The services, in respect of their quality, were either free or base, and in respect of their quantity and the time of exacting them, were either certain or uncertain. 2 Bl. Com. 62.
3. In the civil law by service is sometimes understood servitude. (q. v.)
SERVICE, practice. To execute a writ or process; as, to serve a writ of capias signifies to arrest a defendant under the process; Kirby, 48; 2 Aik. R. 338; 11 Mass. 181; to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.
2. When the service of a writ is prevented by the act of the party on whom it is to be served, it will, in general, be sufficient if the officer do everything in his power to serve it. 39 Eng. C. L. R. 431 1 M. & G. 238.
SERVIENT, civil law. A term applied to an estate or tenement by which a servitude is due to another estate or tenement. See Dominant; Servitude.
SERVITUDE, civil law. A term which indicates the subjection of one person to another person, or of a person to a thing, or of a thing to a person, or of a thing to a thing.
2. Hence servitudes are divided into real, personal, and mixed. Lois des Bat. P. 1, c. 1.
3. A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another proprietor. Louis. Code, art. 643. When used without any adjunct, the word servitude means a real or predial servitude. Lois des Bat. P. 1, c. 1.
4. The subjection of one person to another is a purely personal servitude; if it exists in the right of property which a person exercises over another, it is slavery. When the subjection of one person to another is not slavery, it consists simply in the right of requiring of another what he is bound to do, or not to do; this right arises from all kinds of contracts or quasi con tracts. Lois des Bat. P. 1, c. 1, art. 1.
5. The subjection of persons to things or of things to persons, are mixed servitudes. Lois des Bat. P. 1, c. 1, art. 2.
6. Real servitudes are divided into rural and urban. Rural servitudes are those which are due by an estate to another estate, such as the right of passage over the serving estate, or that which owes the servitude, or to draw water from it, or to water cattle there, or to take coal, lime and wood from it, and the like. Urban servitudes are those which are established over a building fur the convenience of another, such as the right of resting the joists in the wall of the serving building, of opening windows which overlook the serving estate, and the like. Dict. de Jurisp. tit. Servitudes. See, generally, Lois des Bat. Part 1 Louis. Code, tit. 4; Code Civil, B. 2, tit. 4; This Dict. tit. Ancient Lights; Easements; Ways; Lalaure, Des Servitudes, passim.
SERVITUDES, NATURAL, civil law. Those servitudes which arise in consequence of the nature of the soil.
2. By law the inferior heritages, are submitted in relation to the natural flow of waters, and the like, to the superior. An inferior field is, therefore, subject to the injury or prejudice which the situation of the ground, in its natural state, way cause it.
SERVITUDES, personal. Those by which the property of a subject, in Scotland, is burdened in favor, not of a tenement, but of a person. Ersk. Pr. L. Scot. B. 2, t. 9, s. 23. Life rent is the only personal servitude there.
SERVITUS, civil law. A service or servitude; a burden imposed by law, or the agreement of parties upon certain persons, for the benefit of others; or upon one estate for the advantage of another, or for the benefit of another person than the owner.
SERVITUS. Servitude; slavery; a state of bondage. "Servitus autem, est constitutio," say the Institutes of Justinian, 1, 3, 2, "qua quis dominio alieno contra naturam subjicitur." Servitude is a disposition of the law of nations, by which, against common right, one man has been subjected to the dominion of another. See Bract. 4 b; Co. Litt. 116.
SERVITUS LUMINUM, civil law. The name of a servitude by which an obligation is imposed on the owner of a house to allow windows or lights to be put in his wall by the owner of the adjoining house. Dig. 4, 14, 40.
SERVITUS STILLIClDII, civil law. The name of a servitude which obliges the owner of an estate to receive, or his right to turn aside, the droppings or stream from his neighbor's house. Dig. 8, 2, 20 and 21, 41; Voet, h. t. n. 13. Vide Stillicidium.
SERVITUS TIGNI IMMITTENDI, civil law. The name of a servitude which consists in requiring him who owes it, to permit his neighbor to place his joists on his wall. It differs from the servitude Oneris ferendi. (q. v.) in this, that in the former the owner of the servient building is bound to repair and rebuild the wall; whereas, in the latter he is not. Dig. lib. 8, §2.
SESSION. The time during which a legislative body, a court or other assembly sits for the transaction of business; as, a session of congress, which commences on the day appointed by the constitution, and ends when congress finally adjourns before the commencement of the next session; the session of a court, which commences at the day appointed by law, and ends when the court finally rises a term.
SESSION COURT, or COURT OF SESSION. The highest civil court in the kingdom of Scotland. The judges, called lords of the session, are fifteen in number.
2. It has extensive original jurisdiction, and its powers of review as a court of appeal have no limits. In 1808, it was divided into two chambers, called the first and second division; the lord president and seven judges constituting the former, and the lord justice clerk, who is head of the court of justiciary, with six judges, the latter. These divisions have independent but coordinate jurisdiction.
3. The high court of justiciary, or supreme criminal jurisdiction for Scotland consists of six judges, who are lords of the session, the lord justice clerk presiding. In this court the number of the jury is fifteen, and a majority decides. The court of session is divided into the inner house and outer house, with appeal from the latter to the former, and from the former to the house of lords of the United Kingdom. Encycl. Amer.
SET, contracts. Foreign bills of exchange are generally drawn in parts; as, "pay this my first bill of exchange, second and third of the same tenor and date not paid;" the whole of these parts, which make but one bill, are called a set. Chit. Bills, 175, 6, (edition of 1836); 2 Pardess. n. 342.
TO SET ASIDE. To annul; to make void; as to set aside an award.
2. When proceedings are irregular they may be set aside on, motion of the party whom they injuriously affect.
SET-OFF, contracts, practice. Defalcation; (q. v.) a demand which a defen-dant makes against the plaintiff in the suit for the purpose of liquidating the whole or a part of his claim.
2. A set-off was unknown to the common law, according to which mutual debts were distinct and inextinguishable except by actual payment or release. 1 Rawle's R. 293; Babb. on Set-off, 1.
3. The statute 2 Geo. II., c. 22, which has been generally adopted in the United States with some modifications however, allowed, in cases of mutual debts, the defendant to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such intention, under the general issue. The statute being made for the benefit of the defendant, is not compulsory; 8 Watts, R. 39; the defendant may Waive his right, and bring a cross action against the plaintiff. 2 Campb. 594; 5 Taunt. 148; 9 Watts, R. 179
4. It seems, however, that in some cases of intestate estates, and of insolvent estates, perhaps owing to the peculiar wording of the law, the statute has been held to operate on the rights of the parties before action brought, or an act done by either of them. 2 Rawle's R. 293; 3 Binn. Rep. 135; Bac. Ab. Bankrupt K.
5. Set-off takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant. A set-off is not allowed in actions arising ex delicto, as, upon the case, trespass, replevin or detinue. Bull. N. P. 181.
6. The matters which may be set off, may be mutual liquidated debts or damages, but unliquidated damages cannot be set off. 1 Black. R. 394; 2 John. 150; 8 Conn. 325; 1 M'Cord, 7; 3 Wend. 400; 1 Stew. & Port. 19; 2 Yeates, 208; 1 Sumn. 471; 2 Blackf. 31; 1 A. K. Marsh. 41; 6 Halst. 397; 5 Wash. C. C. 232 3 Bibb, 49; 2 Caines, 33. The statutes refer only to mutual unconnected debts; for at common law, when the nature of the employment, transaction or dealings necessarily constitute an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and therefore in an action, it is not necessary in such cases either to plead or give notice of set-off. 4 Burr. 2221.
7. In general, when the government is plaintiff, no set-off will be allowed. 9 Pet. 319; 4 Dall. 303. See 9 Cranch, 313; Paine, 156. But when an act of congress authorizes such set-off, it may be made. 9 Cranch, 213.
8. Judgments in the same rights may be set off against each other at the discretion of the court. 3 Bibb 233; 3 Watts 78; 3 Halst. 172; 4 Hamm. 90; 1 Stew. & Port. 24; 7 Mass. 140, 144; 8 Cowen 126. Vide Compensation; also Mon-tagu on Set-off; Babington on Set-off; 3 Stark. Ev. h. t.; Amer. Dig. h. t.; Whart. Dig. h. t.; 3 Chit. Bl. Com. 304, n.; 1 Chit. Pl. Index, h. t.; 8 Vin. Ab. 556; Bac. Ab. h. t. 1 Sell. Pr. 321; 5 Com. Dig. 595; 6 Id. 335; 7 Id. 336; 8 Id. 927; Chit. Pr. Index, h. t.; Bouv. Inst. Index, h. t. Vide Factor.
TO SETTLE. To adjust or ascertain to pay.
2. Two contracting parties are said to settle an account when they ascertain what is justly due by one to the other; when one pays the balance or debt due by him, he is said to settle such debt or balance. 11 Alab. R. 419
SETTLEMENT, domicil. The right which a person has of being considered as resident of a particular place.
2. It is obtained in various ways, to wit: 1. By birth. 2. By the legal settlement of the father, in the case of minor children. 3. By marriage. 4. By continued residence. 5. By the payment of requisite taxes. 6. By the lawful exercise of a public office. 7. By hiring and service for a year. 8. By serving an apprenticeship; and perhaps some others which depend upon the local statutes of the different states. Vide 1 Bl. Com. 363; 1 Dougl. 9; 2 Watts' Rep. 44, 342; 2 Penna. R. 432; 5 Serg. & Rawle, 417; 2 Yeates' R. 51; 5 Binn. R. 81; 3 Binn. R.. 22; 6 Serg. & Rawle, 103, 565; 10 Serg. & Rawle, 179. Vide Domicil.
SETTLEMENT, contracts. The conveyance of an estate, for the benefit of some person or persons.
2. It is usually made on the prospect of marriage for the benefit of the married pair, or one of them, or for the benefit of some other persons, as their children. Such settlements vest the property in trustees upon specified terms, usually for the benefit of the hushand and wife during their joint lives, and then for the benefit of the survivor for life, and afterwards for the benefit of children. Ante-nuptial agreements of this kind will be enforced in equity by a specific performance of them, provided they are fair and valid, and the intention of the parties is consistent with the principles and policy of law. Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers.
4. When made without consideration, after marriage, and the property of the hushand is settled upon his wife and children, the settlement will be valid against subsequent creditors, if, at the time of the settlement being made, he was not indebted; but, if he was then indebted, it will be void as to the creditors existing at the time of the settlement; 3 John. Ch. R. 481; 8 Wheat. R. 229; unless in cases where the hushand received a fair consideration in value of the thing settled, so as to repel the presumption of fraud. 2 Ves. 16 10 Ves. 139. Vide 1 Madd. Ch. 459; 1 Chit. Pr. 57; 2 Kent, Com. 145; 2 Supp. to Ves. jr. 80, 375; Rob. Fr. Conv. 188. See Atherl. on Mar. passim.
5. The term settlement is also applied to an agreement by which two or more persons, who have dealings together, so far arrange their accounts, as to ascertain the balance due from one to the other; and settlement sometimes signifies a payment in full.
TO SEVER, practice. When defendants who are sued jointly have separate de-fences, they may in general sever, that is, each one rely on his own separate defence; each may plead severally and insist on his own separate plea. See Severance.
SEVERAL. A state of separation or partition. A several agreement or cove-nant, is one entered into by two or more persons separately, each binding himself for the whole; a several action is one in which two or more persons are separately charged; a several inheritance, is one conveyed so as to descend, or come to two persons separately by moieties. Several is usually opposed to joint. Vide 3 Rawle, 306. See Contract; Joint Contract, Parties to action.
SEVERALTY, title to an estate. An estate in severalty is one which is held by the tenant in his own right only, without any other being joined or connected with him in point of interest, during the continuance of his estate. 2 Bl. Com. 179. Cruise, Dig. 479, 480.
SEVERANCE, pleading. When an action is brought in the name of several plain-tiffs, in which the plaintiffs must of necessity join, aud one or more of the persons so named do not appear, or make default after appearance, the other may have judgment of severance, or, as it is technically called, judgment ad sequendum solum.
2. But in personal actions, with the exception of those by executors, and of detinue for charters, there can be no summons and severance. Co. Lit. 139.
3. After severance, the party severed can never be mentioned in the suit, nor derive any advantage from it.
4. When there are several defendants, each of them may use such plea as, he may think proper for his own defence; and they may join in the same plea, or sever at their discretion; Co. Litt. 303, a except perhaps, in the case of di-latory pleas. Hob. 245, 250. But when the defendants have once united in the plea, they cannot afterwards sever at the rejoinder, or other later stage of the pleading. Vide, generally, Bro. Summ. and Sev.; 2 Rolle, 488; Archb. Civ. Pl. 59.
SEVERANCE, estates. The act by which any one of the unities of a joint tenancy is effected, is so called; because the estate is no longer a joint tenancy, but is severed.
2. A severance may be effected in various ways, namely: 1. By partition, which is either voluntary or compulsory. 2. By alienation of one of the joint tenants, which turns the estate into a tenancy in common. 3. By the purchase or descent of all the shares of the joint tenants, so that the whole estate becomes vested in one only. Com. Dig. Estates by Grant, K 5; 1 Binn. R. 175.
3. In another and a less technical sense, severance is the separation of a part of a thing from another; for example, the separation of malchinery from a mill, is a severance, and, in that case, the machinery which while annexed to the mill was real estate, becomes by the severance; personalty, unless such severance be merely temporary. 8 Wend. R. 587.
SEWER. Properly a trench artificially made for the purpose of carrying water into the sea, river, or some other place of reception. Public sewers are, in general, made at the public expense. Crabb, R. P. §113.
SEX. The physical difference between male and female in animals.
2. In the human species the male is called man, (q. v.) and the female, woman. (q. v.) Some human beings whose sexual organs are somewhat imperfect, have acquired the name of hermaphrodite. (q. v.)
3. In the civil state the sex creates a difference among individuals. Women cannot generally be elected or appointed to offices or service in public capa-cities. In this our law agrees with that of other nations. The civil law excluded women from all offices civil or public: Faemintae ab omnibus officiis civilibus vel publicis remotae sunt. Dig. 50, 17, 2. The principal reason of this exclusion is to encourage that modesty which is natural to the female sex, and which renders them unqualified to mix and contend with men; the pre-tended weakness of the sex is not probably the true reason. Poth. Des Personnes, tit. 5; Wood's Inst. 12; Civ. Code of Louis. art. 24; 1 Beck's Med. Juris. 94. Vide Gender; Male; Man; Women; Worthiest of blood.
SHAM PLEA. One entered for the mere purpose of delay; it must be of a matter which the pleader knows to be false; as judgment recovered, that is, that judgment has already been recovered by the plaintiff for the same cause of action.
2. These sham pleas are generally discouraged, and in some cases are treated as a nullity. Barn. & Ald. 197, 199; 5 Id. 750; 1 Barn. & Cr. 286; Archb. Civ. Pl. 249; 1 Chit. Pl. 401.
SHARE. A portion of anything. Sometimes shares are equal, at other times they are unequal.
2. In companies and corporations the whole of the capital stock is usually divided into equal proportions called shares. Shares in public companies have sometimes been held to be real estate, but most usually they are considered as personal property. Wordsw. Jo. Sto. Co. ch. 1 P, p. 288. 3. The proportion which descends to one of several children from his ancestor, is called a share. The term share and share alike, signifies in equal proportions. See Pwrpart.
SHEEP. A wether more than a year old. 4 Car. & Payne, 216; 19 Engl. Com. Law Rep. 331, S. C.
SHELLEY'S CASE. This case, reported in 1 Rep. 93, contains a rule usually known as the rule in Shelley's case, which has caused more commentaries perhaps than any other case. It has been expressed with great precision, though not with much elegance, to be "in any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs a fee simple." Co. Litt. 376, b and Mr. Butler's note, 1; 3 Binn. R. 139 1 Day, Rep. 299; 1 Prest. on Estates, ch. 3; 4 Kent, Com. 206; Cruise, Dig. tit. 32, c. 22; 2 Yeates, R. 410; 1 Hargr. Law Tracts, article "Observations concerning the rule in Shelley's case, chiefly with a view to the application of that rule in Last Wills;" 5 Ohio R. 465.
SHERIFF. The name of the chief officer of the county. In Latin he is called vice comes, because in England he represented the comes or earl. His name is said to be derived from the Saxon seyre, shire or county, and reve, keeper, bailiff, or guardian.
2. The general duties of the sheriff are, 1st. To keep the peace within the county; he may apprehend, and commit to prison all persons who break the peace or attempt to break it, and bind any one in a recognizance to keep the peace. He is required ex officio, to pursue and take all traitors, murderers, felons and rioters. He has the keeping of the county gaol and he is bound to defend it against all attacks. He may command the posse comitatus. (q. v.)
3. - 2d. In his ministerial capacity, the sheriff is bound to execute within his county or bailiwick, all process issuing from the courts of the commonwealth.
4. - 3d. The sheriff also possesses a judicial capacity, but this is very much circumscribed to what it was at common law in England. It is now generally confined to ascertain damages on writs of inquiry and the like.
5. Generally speaking the sheriff has no authority out of his county. 2 Rolle's Rep. 163; Plowd, 37 a. He may, however, do mere ministerial acts out of his county, as making a return. Dalt. Sh. 22. Vide, generally, the various Digests and Abridgments, h. t.; Dalt. Sher.; Wats. Off. and Duty of Sheriff; Wood's Inst. 75; 18 Engl. Com. Law Rep. 177; 2 Phil. Ev. 213; Chit. Pr. Index, h. t.; Chit. Pr. Law, Index, h. t.
SHERIFFALTY. The office of sheriff, the time during which a sheriff is to remain in office.
SHIFTING USE, estates. One which takes effect in derogation of some other estate, and is either limited by the deed creating it, or authorized to be created by some person named in it. This is sometimes called a secondary use.
2. The following is an example: If an estate be limited to A and his heirs, with a proviso that if B pay to A one hundred dollars by a time named, the use to A shall ease, and the estate go to B in fee; the estate is vested in A subject to the shifting or secondary use in fee in B. Again, if the proviso be that C may revoke the use to A, and limit it to B, then A is seised in fee, with a power in C of revocation and limitation of a new use. These shifting uses must be confined within proper limits, so as not to create a perpetuity. 4 Kent, Com. 291; Cornish on Uses, 91; Bac. Ab. Uses and Trusts, K; Co. Litt. 327, a, note Worth on Wills, 419; 2 Bouv. Inst. n. 1890. Vide Use.
SHILLING, Eng. law. The name of an English coin, of the value of one twen-tieth part of a pound. In the United States, while they were colonies, there were coins of this denomination, but they greatly varied in their value.
SHIP. This word, in its most enlarged sense, signifies a vessel employed in navigation; for example, the terms the ship's papers, the ship's hushand, shipwreck, and the like, are employed whether the vessel referred to be a brig, a sloop, or a three-masted vessel.
2. In a more confined sense, it means such a vessel with three masts 4 Wash. C. C. Rep. 530; Wesk. Inst. h. t. p. 514 the boats and rigging; 2 Marsh. Ins. 727 together with the anchors, masts, cables, pullies, and such like objects, are considered as part of the ship. Pard. n. 599; Dig. 22, 2, 44.
3. The capacity of a ship is ascertained by its tonnage, or the space which may be occupied by its cargo. Vide Story's Laws U. S. Index, h. t.; Gordon's Dig. h. t.; Abbott on Ship. Index, h. t.; Park. Ins. Index, h. t.; Phil. Ev. Index, h. t. Bac. Ab. Merchant, N; 3 Kent, Com. 93 Molloy, Jure Mar. Index, h. t.; l Chit. Pr. 91; Whart. Dig. h. t.; 1 Bell's Com. 496, 624; and see General Ships; Names of Ships.
SHIP BROKER. One who transacts business between the owners of vessels and merchants who send cargoes.
SHIP DAMAGES. In the charter parties with the English East India Company, these words occur; their meaning is damage from negligence, insufficiency or bad stowage in the ship. Dougl. 272; Abbott, on Ship. 204.
SHIP'S HUSBAND, mar. law. An agent appointed by the owner of a ship, and invested with authority to make the requisite repairs, and attend to the management, equipment, and other concerns of the ship he is usually authorized to act as the general agent of the owners, in relation to the ship in her home port.
2. By virtue of his agency, he is authorized to direct all proper repairs, equipments and outfits of the ship; to hire the officers and crew; to enter into contraets for the freight or charter of the ship, if that is her usual employment; and to do all other acts necessary and proper to prepare and despatch her for and on ber intended voyage. 1 Liverm. on Ag. 72, 73; Story on Ag. §35.
3. By some authors, it is said the ship's hushand must be a part owner. Hall on Mar. Loans, 142, n.; Abbott on Ship. part 1, c. 3, s. 2. 4. Mr. Bell, Comm. 410, §428, 5t ed. p. 503, points out the duties of the ship's hushand, as follows, namely: 1. To see to the proper outfit of the vessel, in the repairs adequate to the voyage, and in the tackle and furniture necessary for a sea-worthy ship.
5. - 2. To have a proper master, mate, and crew, for the ship, so that, in this respect, it shall be sea-worthy.
6. - 3. To see the due furnishing of provisions and stores, according to the necessities of the voyage.
7. - 4. To see to the regularity of the clearance's from the custom-house, and the regularity of the registry.
8. - 5. To settle the contracts, and provide for the payment of the furnishings which are requisite to the performance of those duties.
9. - 6. To enter into proper charter parties, or engage the vessel for general freight, under the usual conditions; and to settle for freight, and adjust averages with the merchant; and,
10. - 7. To preserve the proper certificates, surveys and documents, in case of future disputes with insurers and freighters and to keep regular books of the ship.
11. These are his general powers, but of course, they may be limited or enlarged by the owners; and it may be observed, that without special authority, he cannot, in general, exercise the following enumerated acts:
1. He cannot borrow money generally for the use of the ship; though, as above observed, he may settle the accounts for furnishings, or grant bills for them, which form debts against the concern, whether or not he has funds in his hands with which he might have paid them. 1 Bell, Com. 411, 499.
12. - 2. Although he may in general, levy the freight which is, by the bill of lading, payable on the delivery of the goods, it would seem that he would not have power to take bills for the freight, and give up the possession of the lien over the cargo, unless it has been so settled by the charter party. Id.
13. - 3. He cannot insure, or bind the owners for premiums. Id.; 5 Burr. 2627; Paley on Ag. by Lloyd, 23, note 8; Abb. on Ship. part 1, c. 3, s. 2; Marsh. Ins. b. 1, c. 8, s. 2; Liv. on Ag. 72, 73.
14. As the power of the master to enter into contracts of affreightments, is superseded in the port of the owners, so it is by the presence of the ship's hushand, or the knowledge of the contracting parties that a ship's hushand has been appointed. Bell's Com. ut supra.
SHIP'S PAPERS. Those documents which are required on board of neutral ships, as evidence of their neutrality, These are the passports, sea-letter, muster-roll, charter party, bill of lading, invoices, log book, bill of health, register, and papers containing proofs of property. 1 Chit. Com. Law 487.
2. The want of these papers, or either of them, renders the character of a vessel suspicious. Vide Clearance, and 2 Boulay Paty, Dr. Com. 14.
SHIPPER. One who ships or puts goods on board of a vessel, to be carried to another place during her voyage. In general, the shipper is bound to pay for the hire of the vessel, or the freight of the goods. 1 Bouv. Inst. n. 1030.
SHIPPING ARTICLES, contr. mar. law. The act of congress of July 20, 1790, s. 1, directs that a master of any vessel bound from a port in the United States to any foreign port, or of any vessel of fifty tons or upwards, bound from a port in one state to a port in any other than at adjoining state, shall, before he proceed on such voyage, make an agreement in writing or in print, with every seaman or mariner on board such vessel, (except such as shall be apprenticed or servant to himself or owners) declaring the voyage or voyages, term or terms of time, for which such seaman or mariner shall be shipped.
2. And by sect. 2, it is required that at the foot of every such coutract, there shall be a memorandum in writing, of the day and the hour on which such seaman or mariner who shall so ship and subscribe, shall render himself on board to begin the voyage agreed upon.
3. This instrument is called the shipping articles. For want of which, the seaman is entitled to the highest wages which have been given at the port or place where such seaman or mariner shall have been shipped for a similar voyage within three months next before the time of such shipping, on his performing the service, or during the time he shall continue to do duty on board such vessel, without being bound by the regulations, nor subject to the penalties and forfeitures contained in the said act of congress; and the master is further liable to a penalty of twenty dollars.
4. The shipping articles ought not to contain any clause which derogates from the general rights and privileges of seamen, and if they do, such clause will be declared void. 2 Sumner, 443; 2 Mason, 541.
5. A seaman who signs shipping articles, is bound to perform the voyage, and he has no right to elect to pay damages for non-performance of the contract. 2 Virg. Cas. 276.
Vide, generally, Gilp. 147, 219, 452; 1 Pet. Ad. Dec. 212; Bee, 48; 1 Mason, 443; 5 Mason, 272; 14 John. 260.
SHIPWRECK. The loss of a vessel at sea, either. by being swallowed up by the waves, by running against another vessel or thing at sea, or on the coast. Vide Naufrage; Wreck.
SHIRE, Eng. law. A district or division of country. Co. Lit. 50 a.
SHOP BOOK. This name is given to a book in which a merchant, mechanic, or other person, makes original entries of goods sold or work done.
2. In general, such a book is prima facie evidence of the sale of the goods and of the work done, but not of their value. Vide Original entry.
SHORE. Land on the side of the sea, a lake, or a river, is called the shore. Strictly speaking, however, when the water does not ebb and flow, in a river, there is no shore. See 4 Hill, N. Y. Rep. 375; 6 Cowen, 547; and Seashore.
SHORT ENTRY. A term used among bankers, which takes, place when a note has been sent to a bank for collection, and an entry of it is made in the cus-tomer's bank book, stating the amount in an inner column, and carrying it out into the accounts between the parties when it has been paid.
2. A bill of this kind remains the property of the depositor. 1 Bell's Com. 27l; 9 East, 12; 1 Rose, 153; 2 Rose, 163; 2 B. & Cr. 422; Pull. Mer. Acc. 56.
SI FACERIT TE SECUREM. If he make you secure. These words occur in the form of writs, which originally requited, or still require, that the plaintiff should give security to the sheriff that he will prosecute his claim, before the sheriff can be required to execute such writ.
SICKNESS. By sickness is understood any affection of the body which deprives it temporarily of the power to fulfil iis usual functions.
2. Sickness is either such as affects the body generally, or only some parts of it. Of the former class, a fever is an example; of the latter, blindness. When a process has been issued against an individual for his arrest, the she-riff or other officer is authorized, after he has arrested him, if he be so dangerously sick, that to remove him would endanger his life or health, to let him remain where he found him, and to return the facts at large, or simply languidus. (q. v.)
SIDE BAR RULES, Eng practice. Rules which were formerly moved for by attorneys on the side bar of the court; but now may be had of the clerk of the rules, upon a praecipe. These rules are, that the sheriff return his writ; that he bring in the body; for special imparlance; to be present at the taxing of costs, and the like.
SIENS. An obsolete word, formerly used for scion, which figuratively signified a person who descended from another. "The sien," says Lord Coke, "takes all his nourishment from the stocke, and yet it produceth his own fruit." Co. Lit. 123 a. Vide Branch.
SIGILLUM. A seal. (q. v.) Vide Scroll.
SIGHT, contracts. Bills of exchange are frequently made payable at sight, that is, on presentment, which might be taken naturally to mean that the bill should then be paid without further delay; but although the point be not clearly settled, it seems the drawee is entitled to the days of grace. Beaw. Lex Mer. pl. 256; Kyd on Bills, 10; Chit. on Bills, 343-4; Bayley on Bills, 42, 109, 110; Selw. N. P. 339.
2. - The holder of a bill payable at sight, is required to use due diligence to put it into circulation, or have it presented for acceptance within a reasonable time. 20 John. 146; 7 Cowen, 705; 12 Pick. 399 13 Mass. 137; 4 Mason, 336; 5 Mason's 118; 1 McCord, 322; 1 Hawks, 195.
3. When the bill is payable any number of days after sight, the time begins to run from the period of presentment and acceptance, and not from the time of mere presentment. 1 Mason, 176; 20 John. 176.
SIGN, contracts, evidence. A token of anything; a note or token given without words.
2. Contracts are express or implied. The express are manifested viva voce, or by writing; the implied are shown by silence, by acts, or by signs.
3. Among all nations find and at all times, certain signs have been considered as proof of assent or dissent; for example, the nodding of the head, and the shaking of hands; 2 Bl. Com. 448; 6 Toull. D. 33; Heinnec., Antiq. lib. 3, t. 23, n. 19; silence and inaction, facts and signs are sometimes very strong evidence of cool reflection, when following a question. I ask you to lend me one hundred dollars, without saying a word you put your hand in your pocket, and deliver me the money. I go into a hotel and I ask the landlord if he can accommodate me and take care of my trunk; without speaking he takes it out of my hands and sends it into his chamber. By this act he doubtless becomes responsible to me as a bailee. At the expiration of a lease, the tenant remains in possession, without any objection from the landlord; this may be fairly interpreted as a sign of a consent that the lease shall be renewed. 13 Serg. & Rawle, 60.
4, The learned author of the Decline and Fall of the Roman Empire, in his 44th chapter, remarks, "Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water: and the divorced wife resigned, the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek: a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clenched fist was the symbol of a pledge or deposits; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and, scales were introduced into every payment, and the heir who accepted a testament, was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with real or affected transport. If a citizen pursued any stolen goods into a neighbor's house, he concealed his nakedness with a linen towel, and hid his. face with a mask or basin, lest he should encounter the eyes of a virgin or a matron. In a civil action, the plaintiff touched the ear of his witness seized his reluctant adversary by the neck and implored, in solemn lamentation, the aid of his fellow-citizens. The two competitors grasped each other's hand, as if they stood prepared for combat before the tribunal of the praetor: he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law, was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles wore interwoven with the religion of Numa; and, after the publication of the Twelve Tables, the Roman people were still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning, of this primitive language."
SIGN, measures. In angular measures, a sign is equal to thirty degrees. Vide Measure.
SIGN, mer. law. A board, tin or other substance, on which is painted the name and business of a merchant or tradesman.
2. Every man has a right to adopt such a sign as he may please to select, but he has no right to use another's name, without his consent. See Dall. Dict. mot Propriete Industrielle, and the article Trade marks.
To SIGN. To write one's name to an instrument of writing in order to give the effect intended; the name thus written is called a signature.
2. The signature is usually made at the bottom of the instrument but in wills it has been held that when a testator commenced his will With these words;, "I, A B, make this my will," it was a sufficient signing. 3 Lev. 1; and vide Rob. on Wills, 122 1 Will. on Wills, 49, 50; Chit. Cont. 212 Newl. Contr. 173; Sugd. Vend. 71; 2 Stark. Ev. 605, 613; Rob. on Fr. 121; but this decision is said to be absurd. 1 Bro. Civ. Law, 278, n. 16. Vide Merl. Repert. mot Signature, for a history of the origin, of signatures; and also 4 Cruise, Dig. h. t. 32, c. 2, s. 73, et seq.; see, generally, 8 Toull. n. 94-96; 1 Dall. 64; 5 Whart. R. 386; 2 B. & P 238; 2 M. & S. 286.
3. To sign a judgment, is to enter a judgment for want of something which was required to be done; as, for example, in the English practice, if he who is bound to give oyer does not give it within the time required, in such cases, the adverse party may sign judgment against him. 2 T. R. 40; Com. Dig. Pleader, P 1; Barnes, 245.
SIGNA, civil law. Those species of indicia (q. v.) which come more immediately under the cognizance of the senses, such as stains of blood on the person of one accused of murder, indications of terror at being charged with the offence, and the like.
2. Signa, although not to be rejected as instruments of evidence, cannot always be relied upon as conclusive evidence, for they are frequently explained away; in the instance mentioned the blood may have been that of a beast, and expressions of terror have been frequently manifested by innocent persons who did not possess much firmness. See Best on Pres. 13, n. f.; Denisart, h. v.
SIGNATURE, eccl. law. The name of a sort of rescript, without seal, containing the supplication, the signature of the pope or his delegate, and the grant of a pardon Dict. Dr. Can. h. v.
SIGNATURE, pract. contr. By signature is understood the act of putting down a man's name, at the end of an instrument, to attest its validity. The name thus written is also called a signature.
2. It is not necessary that a party should write his name himself, to constitute a signature; his mark is now beld sufficient though he was able to write. 8 Ad. & El. 94; 3 N. & Per. 228; 3 Curt. 752; 5 John. 144, A signature made by a party, another person guiding his band with his consent, is sufficient. 4 Wash. C. C. 262, 269. Vide to Sign.
SIGNIFICATION, French law. The notice given of a decree, sentence or other judicial act.
SIGNIFICAVIT, eccl. law. When this word is used alone, it means the bishop's certificate to the court of chancery, in order to obtain the writ of excommunication; but where the words writ of significavit are used, the meaning is the same as writ de excommunicato capiendo. 2 Burn's Eccl. L. 248; Shelf. on Mar. & Div. 502.
SILENCE. The state of a person who does not speak, or of one who refrains from speaking.
2. Pure and simple silence cannot be considered as a consent to a contract, except in cases when the silent person is bound in good faith to explain himself, in which case, silence gives consent. 6 Toull. liv. 3, t. 3, n. 32, note; 14 Serg. & Rawle, 393; 2 Supp. to Ves. jr. 442; 1 Dane's Ab. c. 1, art. 4, §3; 8 T. R. 483; 6 Penn. St. R. 336; 1 Greenl. Ev. 201; 2 Bouv. Inst. n. 1313. But no assent will be inferred from a man's silence, unless, 1st. He knows his rights and knows what he is doing and, 2d. His silence is voluntary.
3. When any person is accused of a crime, or charged with any fact, and he does not deny it, in general, the presumption is very strong that the charge is correct. 7 C. & P. 832 5 C. & P. 332; Joy on Conf. s. 10, p. 77.
4. The rule does not extend to the silence of a prisoner, when on his exanination before a magistrate he is charged by another prisoner with having joined him in the commission of an offence: 3 Stark. C. 33.
5. When an oath is administered to a witness, instead of expressly promising to keep it, he gives his assent by his silence, and kissing the book.
6. The person to be affected by the silence must be one not disqualified to act as non compos, an infant, or the like, for even the express promise of such a person would not bind him to the performance of any contract.
7. The rule of the civil law is that silence is not an acknowledgment or denial in every case, qui tacet, non utique fatetur: sed tamen verum est, eum non negaro. Dig. 50, 17, 142.
SILVA CAEDUA. By these words in England is understood every sort of wood, except gross wood of the age of twenty years. Bac. Ab. Tythes, C.
SIMILITER, pleading. When the defendant's plea contains a direct contradiction of the declaration, and concludes with referring the matter to be tried by a jury of the country, the plaintiff must do so too; that is, he must also submit the matter to be tried by a jury, without offering any new answer to it, and must stand or fall by his declaration. Co. Litt. 126 a. In such case, he merely replies that as the defendant has put himself upon the country, that is, has submitted his cause to be tried by a jury of the country, he, the plaintiff, does so likewise, or the like. Hence this sort of replication is called a similiter, that having been the effective word when the proceedings were in Latin. 1 Chit. Pl. 549; Arch. Civ. Pl. 250. See Steph. Pl. 255; 2 Saund. 319, b; Cowp. 407; 1 Str. Rep. 551; 11 S. & R. 32.
SIMONY, eccl. law. The selling and buying of holy orders, or an ecclesiastical benefice. Bac. Ab. h. t.; 1 Harr. Dig. 556. By simony is also understood an unlawful agreement to receive a temporal reward for something holy or spiritual. Code, 1, 3, 31 Ayl. Parerg. 496.
SIMPLE. Not compounded, alone; as, simple interest, which is interest on the principal sum lent only and not interest on the interest; simple contract, &c.
SIMPLE CONTRACT. One, the evidence of which is merely oral, or in writing, not under seal, nor of record. 1 Chit. Contr. 1 1 Chit. Pl. 88; and vide 11 Mass. R. 30 ll East, R. 312; 4 Barn. & Ald. 588; Stark. Ev. 995; 2 Bl. Com. 472.
2. As contracts of this nature are frequently entered into without thought or proper deliberation, the law requires that there be some good cause, consideration or motive, before they can be enforced in the courts. The party making the promise must have obtained some advantage, or the party to whom it is made must have sustained some injury or inconvenience in consequence of such promise; this rule has been established for the purpose of protecting weak and thoughtless persons from the consequences of rash, improvident, and inconsiderate engageinents. See Nudum pactum. But it must be recollected this rule does not apply to promissory notes, bills of exchange or commercial papers. 3 M. & S. 352.
SlMPLE LARCENY. The felonious taking and carrying away the personal goods of another, unattended by acts of violence; it is distinguished from compound larceny, which is the stealing from the person or with violence.
SIMPLE OBLIGATION. An unconditional obligation, one which is to be performed without depending upon any event provided by the parties to it.
SIMPLE TRUST. A simple trust corresponds with the ancient use, and is where property is simply vested in one person for the use of another, and the nature of the trust, not being qualified by the settler, is left to the construction of law. It differs from a special trust. (q. v.) 2 Bouv. Inst. n. 1896.
SIMPLEX. Simple or single; as, charta simplex, is a deed-poll, of single deed. Jacob's L. Dict. h. t.
SIMPLICITER. Simply, without ceremony; in a summary manner.
SIMUL CUM, pleading. Together with. These words are used in indictments and declarations of trespass against several persons, when some of them are known and others are unknown.
2. In cases of riots it is usual to charge that A B, together with others unknown, did the act complained of. 2 Chit. Cr. Law, 488; 2 Salk. R. 593.
3. When a party sued with another pleads separately, the plea is generally entitled in the name of the person pleading, adding "sued with___," naming the other party. When this occurred, it was, in the old phraseology, called pleading with a simul cum.
SIMULATION, French law. This word is derived from the Latin simul, together. It indicates, agreeably to its etymology, the concert or agreement of two or more persons to give to one thing the appearance of another, for the purpose of fraud. Merl. Repert. h. t.
2. With us such act might be punished by indictment for a conspiracy; by avoiding the pretended contract; or by action to recover back the money or property which may have been thus fraudulently obtained.
SINE DIE. Without day. A judgment for a defendant in many cases is quod eat sine die, that he may go without day. While the cause is pending and undeter-mined, it may be continued from term to term by dies datus. (q. v.) See Huxley's Judgments & Rastal's Entries, passim; Co. Litt. 362b & 363a. When the court or other body rise at the end of a session or term they adjourn sine die.
SINECURE. In the ecclesiastical law, this term is used to signify that an ecclesiastical officer is without a charge or cure.
2. In common parlance it means the receipt of a salary for an office when there are no duties to be performed.
SINGLE. By itself, unconnected.
2. A single bill is one without any condition, and does not depend upon any future event to give it validity. Single is also applied to an unmarried person; as, A B, single woman. Vide Simplex.
SINGLE ENTRY. A term used among merchants signifying that the entry is made to charge or to credit an individual or thing, without, at the same time, pre-senting any other part of the operation; it is used in contradistinction to double entry. (q. v.) For example, a single entry is made, A B debtor, or A B creditor, without designating what are the connexions between the entry and the objects which composed the fortune of the merchant.
SINGULAR, construction. In grammar the singular is used to express only one,
not plural. Johnson.
2. In law, the singular frequently includes the plural. A bequest to "my nearest relation," for example, will be considered as a bequest to all the relations in the same degree, who are nearest to the testator. 1 Ves. sen. 337; 1 Bro. C. C. 293. A bequest made to "my heir," by a person who had three heirs, will be construed in the plural. 4 Russ. C. C. 384.
3. The same rule obtains in the civil law: In usu juris frequenter uti nos singulari appellationie, am plura significari vellemus. Dig. 50, l6, 158.
SINKING FUND. A fund arising from particular taxes, imposts, or duties, which is appropriated towards the payment of the interest due on a public loan and for the gradual payment of the principal. See Funding System.
SIRE. A title of honor given to kings or emperors in speaking or writing to them.
SISTER. A woman who has the same father and mother with another, or has one of them only. In the first case she is called sister, simply; in the second, half sister. Vide Brother; Children; Descent; Father; Mother.
SITUS. Situation;, location. 5 Pet. R. 524.
2. Real estate has always a fixed situs, while personal estate has no such fixed situs; the law rei site regulates real but not the personal estate. Story, Confl. of Laws, §379.
SKELETON BILL, com. law. A blank paper, properly stamped, in those countries where stamps are required, with the name of a person signed at the bottom.
2. In such case the person signing the paper will be held as the drawer or acceptor, as it may be, of any bill which shall afterwards be written above his name to the sum of which the stamp is applicable. 1 Bell's Com. 390, 5th ed.
SKILL, contracts. The art of doing a thing as it ought to be done.
2. Every person who purports to have skill in la business, and undertakes for hire to perform it, is bound to do it with ordinary skill, and is res-ponsible civilly in damages for the want of it; 11 M. & W. 483; and sometimes he is responsible criminally. Vide Mala Praxis; 2 Russ. on Cr. 288,
3. The degree of skill and diligence required, rises in proportion to the value of the article, and the delicacy of the operation: more skill is required, for example, to repair a very delicate mathematical instrument, than upon a common instrument. Jones' Bailm. 91; 2 Kent, Com. 458, 463; 1 Bell's Com. 459; 2 Ld. Raym. 909, 918; Domat, liv. 1, t. 4, §8, n. 1; Poth. Louage, n. 425; Pardess. n. 528; Ayl. Pand. B. 4, t. 7, p. 466; Ersk. Inst. B. 3, t. 3, §16; 1 Rolle, Ab. 10; Story's Bailm. §431, et seq.; 2 Greenl. Ev. §144.
SLANDER, torts. The defaming a man in his reputation by speaking or writing words which affect his life, office, or trade, or which tend to his loss of preferment in marriage or service, or in his inheritance, or which occasion any other particular damage. Law of Nisi Prius, 3. In England, if slander be spoken of a peer, or other great man, it is called Scandalum Magnatum. Falsity and malice are ingredients of slander. Bac. Abr. Slander. Written or printed slanders are libels; see that word.
2. Here it is proposed to treat of verbal slander only, which may be considered with reference to, 1st. The nature of the accusation. 2d. The falsity of the charge. 3d. The mode of publication. 4th. The occasion; and 5th. The malice or motive of the slander.
3. - §1. Actionable words are of two descriptions; first, those actionable in themselves, without proof of special damages and, secondly, those actionable only in respect of some actual consequential damages.
4. - 1. Words of the first description must impute: 1st. The guilt of some offence for which the party, if guilty, might be indicted and punished by the criminal courts; as to call a person a "traitor," "thief," "highwayman;" or to say that he is guilty of "perjury," "forgery," "murder," and the like. And although the imputation of guilt be general, without stating the particulars of the pretended crime, it is actionable. Cro. Jac. 114, 142; 6 T. R. 674; 3 Wils. 186; 2 Vent. 266; 2 New Rep. 335. See 3 Serg. & Rawle, 255 7 Serg. & Rawle, 451; 1 Binn. 452; 5 Binn. 218; 3 Serg. & Rawle, 261; 2 Binn. 34; 4 Yeates, 423; 10 Serg. & Rawle, 44; Stark. on Slander, 13 to 42; 8 Mass. 248; 13 Johns. 124; Id. 275.
5. - 2d. That the party has a disease or distemper which renders him unfit for society. Bac. Abr. Slander, B 2. An action can therefore be sustained for calling a man a leper. Cro. Jac. 144 Stark. on Slander, 97. But charging another with having had a contagious disease is not actionable, as he will not, on that account, be excluded from society. 2 T. R. 473, 4; 2 Str. 1189; Bac. Abr. tit. Slander, B 2. A charge which renders a man ridiculous, and impairs the enjoyment of general society, and injures those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man, is also actionable. Holt on Libels, 221.
6. - 3d. Unfitness in an officer, who holds an office to which profit or emolument is attached, either in respect of morals or inability to discharge the duties of the office in such a case an action lies. 1 Salk. 695, 698; Rolle, Ab. 65; 2 Esp. R. 500; 5 Co. 125; 4 Co. 16 a; 1 Str. 617; 2 Ld. Raym. 1369; Bull. N. P. 4; Holt on Libels, 207; Stark. on Slander, 100.
7. - 4th. The want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business, in which the party is engaged, is actionable, 1 Mal. Entr. 244 as to accuse an attorney or artist of inability, inattention, or want of integrity; 3 Wils. 187; 2 Bl. Rep. 750; or a clergyman of being a drunkard; 1 Binn. 178; is actionable. See Holt on Libels, 210; Id. 217.
8. - 2. Of the second class are words which are actionable only in respect of special damages sustained by the party slandered. Though the law will not permit in these cases the inference of damage, yet when the damage has actually been sustained, the party aggrieved may support an action for the publication of an untruth; 1 Lev. 53; 1 Sid. 79, 80; 3 Wood. 210; 2 Leon. 111; unless the assertion be made for the assertion of a supposed claim; Com. Dig. tit. Action upon the case for Defamation, D 30; Bac. Ab. Slander, B; but it lies if maliciously spoken. See 1 Rolle, Ab. 36 1 Saund. 243 Bac. Abr. Slander, C; 8 T. R. 130 8 East, R. 1; Stark. on Slander, 157.
9. - §2. The charge must be false; 5 Co. 125, 6; Hob. 253; the falsity of the accusation is to be implied till the contrary is shown. 2 East, R. 436; 1 Saund. 242. The instance of a master making an unfavorable representation of his servant, upon an application for his character, seems to be an exception, in that case there being a presumption from the occasion of the speaking, that the words were true. 1 T. R. 111; 3 B. & P. 587; Stark. on Slander, 44, 175, 223.
10. - §3. The slander must, of course, be published, that is, communicated to a third person; and if verbal, then in a language which he understands, otherwise the plaintiff's reputation is not impaired. 1 Rolle, Ab. 74; Cro. Eliz. 857; 1 Saund. 2425 n. 3; Bac. Abr. Slander, D 3. A letter addressed to the party, containing libelous matter, is not sufficient to maintain a civil action, though it may subject the libeler to an indictment, as tending to a breach of the peace; 2 Bl. R. 1038; 1 T. R. 110; 1 Saund. l32, n. 2; 4 Esp. N. P. R. 117; 2 Esp. N. P. R. 623; 2 East, R. 361; the slander must be published respecting the plaintiff; a mother cannot maintain an action for calling her daughter a bastard. 11 Serg. & Rawle, 343. As to the case of a man who repeats the slander invented by another, see Stark. on Slander, 213; 2 P. A. Bro. R. 89; 3 Yeates, 508; 3 Binn. 546.
11. - §4. To render words actionable, they must be uttered without legal occasion. On some occasions it is justifiable to utter slander of another, in others it is excusable, provided it be uttered without express malice. Bac. Ab. Slander, D 4; Rolle, Ab. 87; 1 Vin. Ab. 540. It is justifiable for au attorney to use scandalizing expressions in support of his client's cause and pertinent thereto. 1 M. & S. 280; 1 Holt's R. 531; 1 B. & A. 232; see 2 Serg. & Rawle, 469; 1 Binn. 178; 4 Yeates, 322; 1 P. A. Browne's R. 40; 11 Verm. R. 536; Stark. on Slander, 182. Members of congress and other legislative assemblies cannot be called to account for anything said in debate.
12. - §5. Malice is essential to the support of an action for slanderous words. But malice is in general to be presumed until the contrary be proved; 4 B. & C. 247; 1 Saund. 242, n. 2; 1 T. R. 1 11, 544; 1 East, R. 563; 2 East, R. 436; 2 New Rep. 335; Bull. N. P. 8; except in those cases where the occasion prima facie excuses the publication. 4 B. & C. 247. See 14 Serg. & Rawle, 359; Stark. on Slander, 201. See, generally, Com. Dig. tit. Action upon the case for Defamation; Bac. Abr. Slander; 1 Vin. Abr. 187; 1 Phill. Ev. ch. 8; Yelv. 28, n.; Doctr. Plac. 53 Holt's Law of Libels; Starkie on Slander, Ham. N. P. ch. 2, s. 3.
SLANDERER. A calumniator, who maliciously and without reason imputes a crime or fault to another, of which he is innocent.
2. For this offence, when the slander is merely verbal, the remedy is an action on the case for damages; when it is reduced to writing or printing, it is a libel. (q. v.)
SLAVE. A man who is by law deprived of his liberty for life, and becomes the property of another.
2. A slave has no political rights, and generally has no civil rights. He can enter into no contract unless specially authorized by law; what he acquires generally, belongs to his master. The children of female slaves follow the condition of their mothers, and are themselves slaves.
3. In Maryland, Missouri and Virginia slaves are declared by statute to be personal estate, or treated as such. Anth. Shep. To. 428, 494; Misso. Laws, 558. In Kentucky, the rule is different, and they are considered real estate. 1 Kty. Rev. Laws, 566 1 Dana's R. 94.
4. In general a slave is considered a thing and not a person; but sometimes he is considered as a person; as when he commits a crime; for example, two white persons and a slave can commit a riot. 1 McCord, 534. See Person.
5. A slave may acquire his freedom in various ways: 1. By manumission, by deed or writing, which must be made according to the laws of the state where the master then acts. 1 Penn. 10; 1 Rand. 15. The deed may be absolute which gives immediate freedom to the slave, or conditional giving him immediate freedom, and reserving a right of service for a time to come; 6 Rand. 652; or giving him his freedom as soon as a certain condition shall have been fulfilled. 2 Root, 364; Coxe, 4. 2. By manumission by will. When there is an express emancipation by will, the slave will be free, and the testator's real estate shall be charged with the payment of his debts, if there be not enough personal property without the sale of the slaves. 9 Pet. 461. See Harper, R. 20. The manumission by will may be implied, as, where the master devises property real or personal to his slave. 2 Pet; 670; 5 Har. & J. 190. 3. By the removal of the slave with the consent of the master, animo morandi, into one of the United States where slavery is forbidden by law; 2 Mart. Lo. Rep. N. J. 401; or when he sojourns there longer than is allowed by the law of the state. 7 S. & R. 378; 1 Wash. C. C. Rep. 499. Vide Stroud on Slavery; Bouv. Inst. Index, h. t.; and as to the rights of one who, being free, is held as a slave, 2 Gilman, 1; 3 Yeates, 240.
SLAVE TRADE, criminal law. The infamous traffic in human flesh, which though not prohibited by the law of nations, is now forbidden by the laws and treaties of most civilized states.
2. By the constitution of the United States, art. 1, s. 9, it is provided, that the "migration or importation of such persons as any of the states now existing (in 1789,) shall think proper to admit, shall not be probibited by the congress, prior to the year one thousand eight hundred and eight." Previously to that date several laws were enacted, which it is not within the plan of this work to cite at large or to analyze; they are here referred to, namely; act of 1794, c. 11, 1 Story's laws U. S. 319; act of 1800, c. 51, 1 Story's Laws U. S. 780 act of 1803, c. 63, 2 Story's Laws U. S 886; act of 1807, c. 77, 2 Story's Laws U. S. 1050; these several acts forbid citizens of the United States, under certain circumstances, to equip or build vessels for the purpose of carrying on the slave trade, and the last mentioned act makes it highly penal to import slaves into the United States after the first day of January, 1808. The act of 1818, c. 86, 3 Story's Laws U. S. 1698 the act of 1819, c. 224, 3 Story's Laws U. S. 1752; and the act of 1820, c. 113, 3 Story's Laws U. S. 1798, contain further prohibition of the slave trade , and punish tho violation of their several provisions with the highest penalties of the law. Vide, generally, 10 Wheat. R. 66; 2 Mason, R. 409; 1 Acton, 240; 1 Dodson, 81, 91, 95; 2 Dodson, 238; 6 Mass. R. 358; 2 Cranch, 336; 3 Dall. R. 297; 1 Wash. C. C. Rep. 522; 4 Id. 91; 3 Mason, R. 175; 9 Wheat. R. 391; 6 Cranch, 330; 5 Wheat. R. 338; 8 Id. 380; 10 Id. 312; 1 Kent, Com. 191.
SLAVERY. The state or condition of a slave.
2. Slavery exists in most of the southern states. In Pennsylvania, by the act of March, 1780, for the gradual abolition of slavery, it has been almost entirely removed in Massachusetts it was held, soon after the Revolution, that slavery had been abolished by their constitution; 4 Mass. 128; in Connecticut, slavery has been totally extinguished by legislative provisions; Reeve's Dom. Bel. 340; the states north of Delaware, Maryland and the river Ohio, may be considered as free States, where slavery is not tolerated. Vide Stroud on Slavery; 2 Kent, Com. 201; Rutherf. Inst. 238.
SMUGGLING. The fraudulent taking into a country, or out of it, merchandise which is lawfully prohibited. Bac. Ab. h. t.
SO HELP YOU GOD. The formula at the end of a common oath, as administered to a witness wlio testifies in chief.
SOCAGE, Eng. law. A tenure of lands by certain inferior services in husbandry, and not knight's service, in lieu of all other services. Litt. sect. 117.
SOCER. The father of one's wife; a father-in-law.
SOCIDA, civ. law. This is the name of a contract by which one man delivers to another, either for a small recompense, or for a part of the profits, certain animals, on condition that if any of them perish they shall be replaced by the bailer, or he shall pay their value.
2. This is a contract of hiring, with this condition, that the bailee takes upon him the risk of the loss of the thing hired. Wolff, §638.
SOCIETAS LEONINA. Among the Roman lawyers this term signified that kind of society or partnership by which the entire profits should belong to some of the partners in exclusion of the rest.
2. It was so called in allusion to the fable of the lion and other animals, who having entered into partnership for the purpose of hunting, the lion appropriated all the prey to himself. Dig. 17, 2, 29, 2; Poth. Traite de Societe, n. 12. See 2 McCord's R. 421; 6 Pick. 372.
SOCIETE EN COMMENDITE. This term is borrowed from the laws of France, and is used in Louisiana; the societe en commendite, or partnership in commendam, is formed by a contract, by which one person or partnership agrees to furnish another person or partnership a certain amount, either in property or money, to be employed by the person or partnership to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in the proportion determined by the contract, and of being liable to losses and expenses to the amount furnished and no more. Civ. Code of Lo. art. 2810; Code de Comm. 26, 33; 4 Pard. Dr. Com. n. 1027; Dall. Dict. mots Societe Commerciale, n. 166. Vide Commendam; Partnership.
SOCIETY. A society is a number of persons united together by mutual consent, in order to deliberate, determine, and act jointly for some common purpose.
2. Societies are either incorporated and known to the law, or unincorporated, of which the law does not generally take notice.
3. By civil society is usually understood a state, (q. v.) a nation, (q. v.) or a body politic. (q. v.) Rutherf. Inst. c. 1 and 2.
4. In the civil law, by society is meant a partnership. Inst. 3, 26; Dig. 17, 2 Code, 4, 37.
SODOMITE. One who his been guilty of sodomy. Formerly such offender was punished with great severity, and was deprived of the power of making a will.
SODOMY, crim. law. The crime against nature, committed either with man or beast.
2. It is a crime not it to be named; peccatum illud horrible, inter christianos non nominandum. 4 Bl. Com. 215; 1 East, P. C. 480, 487; Bac. Ab. h. t.; Hawk. b. 1, c. 4; 1 Hale, 669; Com. Dig. Justices, S 4; Russ. & Ry. 331.
3. This crime was punished with great severity by the civil law. Nov. 141; Nov. 77; Inst. 4, 18, 4. See 1 Russ. on Cr. 568; R. & R. C. C. 331, 412; 1 East, P. C. 437.
SOIL. The superficies of the earth on which buildings are erected, or may be
erected.
2. The soil is the principal, and the building, when erected, is the accessory. Vide Dig. 6, 1, 49.
SOIT DROIT FAIT AL PARTIE, Eng. law. Let right be done to the party. This phrase is written on a petition of right, and subscribed by the king. See Petition of right.
SOKEMANS, Eng. law. Those who hold their land in socage. 2 Bl. Com. 100.
SOLARES, Spanish law. Lots of ground. This term is frequently found in grants from the Spanish government of lands in America. 2 White's Coll. 474.
SOLD NOTE, contracts. The name of an instrument in writing, given by a broker to a buyer of merchandise, in which it is stated that the goods therein mentioned have been sold to him. 1 Bell's Com. 5th ed. 435 Story on Ag. §28. Some confusion may be found in the books as to the name of these notes; they are sometimes called bought notes. (q. v.)
SOLDIER. A military man; a private in the army.
2. The constitution of the United States, amendm. art. 3, directs that no soldier shall, in time of peace, be quartered in any house, without the 'consent of the owner; nor in time of war, but in a manner to be prescribed by law.
SOLE. Alone, single; used in contradistinction to joint or married. A sole tenant, therefore, is one who holds lands in his own right, without being joined with any other. A feme sole is a single woman; a sole corporation is one composed of only one natural person.
SOLEMNITY. The formality established by law to render a contract, agreement, or other act valid.
2. A marriage, for example, would not be valid if made in jest, and without solemnity. Vide Marriage, and Dig. 4, 1, 7; Id. 45, 1, 30.
SOLICITATION OF CHASTITY. The asking a person to commit adultery or fornication.
2. This of itself, is not an indictable offence. Salk. 382; 2 Chit. Pr. 478. The contrary doctrine, bowever, has been held in Connecticut. 7 Conn. Rep. 267.
3. In England, the bare solicitation of chastity is punished in the ecclesiastical courts. 2 Chit. Pr. 478. Vide Str. 1100; 10 Mod. 384; Sayer, 33; 1 Hawk. ch. 74; 2 Ld. Raym. 809.
4. The civil law punished arbitrarily the person who solicited the chastity of another. Dig. 47, 11, 1. Vide To persuade; 3 Phill. R. 508.
SOLICITOR. A person whose business is to be employed in the care and management of suits depending in courts of chancery.
2. A solicitor, like an attorney, (q. v.) will be required to act with perfect good faith towards his clients. He must conform to the authority given him. It is said that to institute a suit he must have a special authority, although a general authority will be sufficient to defend one. The want of a written authority, may subject him to the expenses incurred in a suit. 3 Mer. R. 12; Hov, Fr. ch. 2, p. 28 to 61. Vide 1 Phil. Ev. 102; 19 Vin. Ab. 482; 7 Com. ]big. 357; 8 Com. Dig. 985; 2 Chit. Pr. 2. See Attorney at law; Counsellor at law; Proctor.
SOLICITOR OP THE TREASURY. The title of one of the officers of the United States, created by the act of May 29, 1830, 4 Sharsw. cont. of Story, L. U. S. 2206, which prescribes his duties aud his rights.
2. - 1. His powers and duties are, 1. Those which were by law vested and required from the agent of the treasury of the United States. 2. Those which theretofore belonged to the commissioner, or acting commissioner of the revenue, as relate to the superintendence of the collection of outstanding direct and internal duties. 3. To take charge of all lands which shall be conveyed to the United States, or set off to them in payment of debts, or which are vested in them by mortgage or other security; and to release such lands which had, at the passage of the act, become vested in the United States, on payment of the debt for which they were received. 4. Generally to superintend the collection of debts due to the United States, and receive statements from different officers in relation to suits or actions commenced for the recovery of the same. 5. To instruct the district attorneys, marshals, and clerks of the circuit and district courts of the United States, in all matters and proceedings appertaining to suits in which the United States are a party or interested, and to cause them to report to him any information he may require in relation to the same. 6. To report to the proper officer from whom the evidence of debt was received, the fact of its having been paid to him, and also all credits which have by due course of law been allowed on the same. 7. To make rules for the government of collectors, district attorneys and marshals, as may be requisite. 8. To obtain from the district attorneys full accounts of all suits in their hands, and submit abstracts of the same to congress.
3. - 2. His rights are, 1. To call upon the attorney-general of the United States for advice and direction as to the manner of conducting the suits, proceedings and prosecutions aforesaid. 2. To receive a salary of three thousand five hundred dollars per annum. 3. To employ, with the approbation of the secretary of the treasury, a clerk, with a salary of one thousand five hundred dollars; and a messenger, with a salary of five hundred dollars. To receive and send all letters, relating to the business of his office, free of postage.
SOLIDO, IN, civil law. In solido, is a term used to designate those contracts in which the obligors are bound, jointly and severally, or in which several obligees are each entitled to demand the whole of what is due.
2. - 1. There is an obligation in solido on the part of debtors, when they are all obliged to the same thing, so that each may be compelled to pay the whole, and when the payment which is made by one of them, exonerates the others towards the creditor.
3. - 2. The obligation is in solido, or joint and several between several creditors, when the title expressly gives to each of them the right of demanding payment of the total of what is due, and when the payment to any one of them discharges the debtor. Civ. Code of La. 2083,2086; Merl. Repert. h. t.; Domat, Index, h. t. See In solido.
SOLITARY IMPRISONMENT. The punishment of separate confinement. This has been adopted in Pennsylvania, with complete success. Vide Penitentiary.
SOLUTION, civil law. Payment.
2. By this term, is understood, every species of discharge or liberation, which is called satisfaction, and with which the creditor is satisfied. Dig. 46, 3, 54; Code 8, 43, 17; Inst. 3, 30. This term has rather a reference to the substance of the obligation, than to the numeration or counting of the money. Dig. 50, 16, 176. Vide Discharge of a contract.
SOLVENCY. The state of a person who is able to pay all his debts; the opposite of insolvency. (q. v.)
SOLVENT. One who has sufficient to pay his debts, and all obligations. Dig. 50, 16, 114.
SOLVERE. To unbind; to untie; to release; to pay; solvere dicimus eum qui fecit quod facere promisit. 1 Bouv. Inst. n. 807.
SOLVIT AD DIEM, pleading. The name of a plea to an action on a bond, or other obligation to pay money, by which the defendant pleads that he paid the money on the day it was due. Vide 1 Stra. 652; Rep. Temp. Hardw. 133; Com. Dig. Pleader, 2 W 29.
2. This plea ought to conclude with an averment, and not to the country. 1 Sid. 215; 12 John. R. 253; vide 2 Phil. Ev. 92; Coxe, R. 467.
SOLVITPOSTDIEM, pleading. The name of a special plea in bar to an action of debt on a bond, by which the defendant asserts that he paid the money after the day it became due. 1 Chit. Pl. 480, 555; 2 Phil. Ev. 93.
SOMNAMBULISM, med. juris. Sleep walking.
2. This is sometimes an inferior species of insanity, the patient being unconscious of what he is doing. A case is mentioned of a monk who was remarkable for simplicity, candor and probity, while awake, but who during his sleep in the night, would steal, rob, and even plunder the dead. Another case is related of a pious clergyman, who during his sleep, would plunder even his own church. And a case occurred in Maine, where the somnambulist attempted to hang himself, but fortunately tied the rope to his feet, instead of his neck. Ray. Med. Jur. §294.
3. It is evident, that if an act should be done by a sleep walker, while totally unconscious of his act, he would not be liable to punishment, because the intention (q. v.) and will (q. v.) would be wanting. Take, for example, the following singular case: A monk late one evening, in the presence of the prior of the convent, while in a state of somnambulism, entered the room of the prior, his eyes open but fixed, his features contracted into a frown, and with a knife in his hand. He walked straight up to the bed, as if to ascertain if the prior were there, and then gave three stabs, which penetrated the bed clothes, and a mat which served for the purpose of a mattress; he returned. with an air of satisfaction, and his features relaxed. On being questioned the next day by the prior as to what he had dreamed the preceding night, the monk confessed he had dreamed that his mother had been murdered by the prior, and that her spirit had appeared to him and cried for vengeance, that he was transported with fury at the sight, and ran directly to stab the assassin; that shortly after be awoke covered with perspiration, and rejoiced to find it was only a dream. Georget, Des Maladies Mentales, 127.
4. A similar case occurred in England, in the last century. Two persons, who had been hunting in the day, slept together at night; one of them was renewing the chase in his dream, and, imagining himself present at the death of the stag, cried out aloud, "I'll kill him! I'll kill him!" The other, awakened by the noise, got out of bed, and, by the light of the moon, saw the sleeper give several deadly stabs, with a knife, on the part of the bed his companion had just quitted. Harvey's Meditations on the Night, note 35; Guy, Med. Jur. 265.
SON, kindred. An immediate male descendant. In its technical meaning in devises, this is a word of purchase, but the testator may make it a word of descent. Sometimes it is extended to more remote descendants.
SON ASSAULT DEMESNE, pleading. His own first assault. A form of a plea to justify an assault and battery, by whicb the defendant asserts that the plaintiff committed an assault upon him, and the defendant merely defended himself.
2. When the plea is supported by evidence, it is a sufficient justification, unless the retaliation by the defendant were excessive, and bore no proportion to the necessity, or to the provocation received. 1 East, P. C. 406; 1 Chit. Pr. 595.
SON-IN-LAW, in Latin called gener. The hushand of one's daughter.
SOUND MIND. That state of a man's mind which is adequate to reason and comes to a judgment upon ordinary subjects, like other rational men.
2. The law presumes that every person who has acquired his full age is of sound mind, and consequently competent to make contracts and perform all his civil duties; and he who asserts to the contrary must prove the affirmation of his position by explicit evidence, and not by conjectural proof. 2 Hagg Eccl. R. 434; 3 Addams' R. 86; 8 Watts, R. 66; Ray, Med. Jur. §92; 3 Curt. Eccl. R. 671. Vide Unsound mind.
SOUNDING IN DAMAGES. When an action is brought, not for the recovery of lands, goods, or sums of money, (as is the case in real or mixed actions, or the personal action of debt or detinue,) but for damages only, as in covenant, trespass, &c., the action is said to be sounding in damages. Steph. Pl. 126, 127.
SOUNDNESS. In usual health; without any permanent disease. 1 Carr. & Marsh. 291. To create unsoundness, it is requisite that the animal should not be useful for the purpose for which he is bought, and that inability to be so useful should arise from disease or accident. 2 M. & Rob. 137; 9 M. & W. 670. 2 M. & Rob. 113.
2. In the sale of slaves and animals they are sometimes warranted by the seller to be sound, and it becomes important to ascertain what is soundness. Roaring; (q. v.) a temporary lameness, which renders a horse less fit for service; 4 Campb. 271; sed vide 2 Esp. Cas. 573; a cough, unless proved to be of a temporary nature; 2 Chit. R. 245, 416; and a nerved horse, have been held to be unsound. But crib-biting is not a breach of a general warranty of soundness. Holt, Cas. 630.
3. An action on the case is the proper remedy for a verbal warrant of soundness. 1 H. Bl. R. 17; 3 Esp. 82; 9 B. & Cr. 259; 2 Dow. & Ry. 10; 1 Bing. 344; 5 Dow. & R. 164; 1 Taunt. 566; 7 East, 274; Bac. Ab. Action on the Case, E.
SOURCES OF THE LAW. By this expression is understood the authority from which the laws derive their force.
2. The power of making all laws is in the people or - their representatives, and none can have any force whatever, which is derived from any other source. But it is not required that the legislator shall expressly pass upon all laws, and give the sanction of his seal, before they can have life or existence. The laws are therefore such as have received ala express sanction, and such as de-rive their force and effect from implication. The first, or express, are the constitution of the United States, and the treaties and acts of the legislature which have been made by virtue of the authority vested by the constitution. To these must be added the constitution of the state and the laws made by the state legislature, or by other subordinate legislative bodies, by virtue of the authority conveyed by such constitution. The latter, or tacit, received their effect by the general use of them by the people, when they assume the name of customs by the adoption of rules by the courts from systems of foreign laws.
3. The express laws, are first, the constitution of the United States; secondly, the treaties made with foreign powers; thirdly, the acts of congress; fourthly, the constitutions of the respective states; fifthly, the laws made by the several state legislatures; sixthly, laws made by inferior legislative bodies, such as the councils of municipal corporations, and general rules made by the courts.
4. - 1. The constitution is an act of the people themselves, made by their representatives elected for that purpose. It is the supreme law of the land, and is binding on all future legislative bodies, until it shall be altered by tho authority of the people, in the manner, provided for in the instrument itself, and if an act be passed contrary to the provisions of the constitution, it is, ipso facto, void. 2 Pet. 522; 12 Wheat. 270; 2 Dall. 309; 3 Dall. 386; 4 Dall. 18; 6 Cranch, 128.
5. - 2. Treaties made under the authority of the constitution are declared to be the supreme law of the land, and therefore obligatory on courts. 1 Cranch, 103. See Treaty.
6. - 3. The acts and resolutions of congress enacted constitutionally, are of course binding as laws and require no other explanation.
7. - 4. The constitutions of the respective states, if not opposed to the provisions of the constitution of the United States, are of binding force in the states respectively, and no act of the state legislature has any force which is made in contravention of the state constitution.
8. - 5. The laws of the several states, constitutionally made by the state legislatures, have full and complete authority in the respective states.
9. - 6. Laws are frequently made by inferior legislative bodies which are authorized by the legislature; such are the municipal councils of cities or boroughs. Their laws are generally known by the name of ordinances, and, when lawfully ordained, they are binding on the people. The courts, perhaps by a necessary usurpation, have been in the practice of making general rules and orders, which sometime affect suitors and parties as much as the most regular laws enacted by congress. These apply to all future cases. There are also rules made in particular cases as they arise, but these are rather decrees or judgments than laws.
10. The tacit laws, which derive their authority from the consent of the people, without any legislative enactment, may be subdivided into 1st. The common law, which is derived from two sources, the common law of England, and the practice and decisions of our own courts. It is very difficult, in many cases, to ascertain what is this common law, and it is always embarrassing to the courts. Kirl. Rep. Pref. In some states, it has been enacted that the common law of England shall be the law, except where the same is inconsistent with our constitutions and laws. See Law.
2d. Customs which have been generally adopted by the people, have the force of law.
3d. The principles of the Roman law, being generally founded in superior wisdom, have insinuated themselves into every part of the law. Many of the refined rules which now adorn the common law appear there without any acknowledgment of their paternity, and it is at this source that some judges dipt to get the wisdom which adorns their judgments. The proceedings of the courts of equity and many of the admirable distinctions which manifest their wisdom are derived from this source. To this fountain of wisdom the courts of admiralty owe most of the law which governs in admiralty cases.
4th. The canon law, which was adopted by the ecclesiastical courts, figures in our laws respecting marriage, divorces, wills and testaments, executors and administrators and many other subjects.
5th. The jurisprudence, or decisions of the various courts, have contributed their full share of what makes the law. These decisions are made by following precedents, by borrowing from the sources already mentioned, and, sometimes by the less excusable disposition of the judges to legislate on the bench.
11. The monuments where the common law is to be found, are the records, reports of cases adjudicated by the courts, and the treatises of learned men. The books of reports are the best proof of what is the common law, but owing to the difficulty of finding out any systematic arrangement, recourse is had to treatises upon the various branches of the law. The records, owing to their being kept in one particular place, and therefore not generally accessible, are seldom used.
SOUS SEING PRIVE. An act sous seingprive, in Louisiana and by the French law, is an act or contract evidenced by writing under the private signature of the parties to it. The term is used in opposition to the authentic act, which is an agreement entered into in the presence of a notary or other public officer.
2. The form of the instrument does not give it its character so much as the fact that it appears or does not appear to have been executed before the officer. 7 N. S. 548 5 N. S. 196.
3. The effect of a sous seing prive is not the same as that of the authentic act. The former cannot be given in evidence until proved, and, unless accompanied by possession, it does not, in general, affect third persons; 6 N. S. 429, 432; the latter, or authentic acts, are full evidence against the parties and those who claim under them. 8 N. S. 132. See Act; Authentic act.
SOUTH CAROLINA. The name of one of the original states of the United States of America. For an account of its colonial history, see article North Carolina.
2. The constitution of this state was adopted the third day of June, 1790, to which two amendments have been made, one, ratified December 17, 1808, and the other, December 19, 1816. The powers of the government are distributed into three branches, the legislative, the executive, and the judicial.
3. - 1st. The legislative authority is vested in a general assembly, which consists of a senate and house of representatives.
4. - 1. The senate will be considered with reference to the qualifications of the electors; the qualifications of the members; the number of members; the duration of their office, and the time of their election. 1. Every free white man, of the age of twenty-one years, being a citizen of this state, and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot, of which he hath been legally seised and possessed, at least six months before such election, or, not having such freehold or town lot, hath been a resident in the election district, in which he offers to give his vote, six mouths before the said election, and hath paid a tax the preceeding year of three shillings sterling towards the support of this government, shall have a right to vote for a member or members, to serve in either branch of the legislature, for the election district in which he holds such property, or is so resident. 2. No person shall be eligible to a seat in the senate, unless he is a free white man, of the age of thirty years and hath been a citizen and resident in this state five years previous to his election. If a resident in the election district, he shall not be eligible unless he be legally seised and possessed in his own right, of a settled freehold estate of the value of three hundred pounds sterling, clear of debt. If a non-resident in the election district, he shall not be eligible unless he be legally seised and possessed in his own right, of a settled freehold estate in the said district, of the value of one thousand pounds sterling, clear of debt. 3. The senate is composed of one member from each district as now established for the election of the house of representatives, except the district formed by the districts of the parishes of St. Philip and St. Michael, to which shall be allowed two senators as heretofore. Amend. of Dec. 17, 1808. 4. They are elected for four years. Ibid. 5. The election takes place on the second Monday in October. Art. 1, s. 10.
5. - 2. The house of representatives will be considered in the same order which has been observed in considering the senate. 1. The qualification of electors are the same as those of electors of senators. 2. No person shall be eligible to a seat in the house of representatives, unless he is a free white man, of the age of twenty-one years, and hath been a citizen and resident in this state three years previous to his election. If a resident in the election district, he shall not be eligible to a seat in the house of representatives, unless he be legally seised and possessed in his own right, of a settled free-hold estate of five hundred acres of land, and ten negroes; or of a real es-tate, of the value of one hundred and fifty pounds sterling, clear of debt. If a non-resident, he shall be legally seised and possessed of a settled freehold estate therein, of the value of five hundred pounds sterling, clear of debt. 3. The house consists of one hundred and twenty-four members. Amend. of Dee. 17, 1808. 4. The members are elected for two years. Art. l, s. 2 . 5. The election is at the same time that the election of senators is held.
6. - 2. The executive authority is vested in a governor, and in certain cases, a lieutenant-governor.
7. - 1. Of the governor. It will be proper to consider his qualifications; by whom he is to be elected; when to be elected; duration of office; and his powers and duties. 1. No person shall be eligible to the office of governor, unless he bath attained the age of thirty years, and hath resided within this state, and been a citizen thereof, ten years, and unless he be seised and possessed of a settled estate within the same, in his own right, of the value of fifteen hundred pounds sterling, clear of debt. Art. 2, s. 2. 2. He is elected by the senate and house of representatives jointly, in the house of representatives. Art. 2, sect. 1. 3. He is to be elected whenever a majority of both houses shall be present. lb. 4. He is elected for two years, and until a new election shall be made. Ibid. 5. The governor is commander-in-chief of the army and navy of the state, and of the militia, except when they shall be called into the actual Service of the United States. He may grant reprieves and pardons, after conviction, except in cases of impeachment, and remit fines and forfeitures, unless otherwise directed by law shall cause the laws to be faithfully executed in mercy - may prohibit the exportation of provisions, for any time not exceeding thirty days-may require information from the executive departments - shall recommend such measures as he may deem necessary, and give the assembly information as to the condition of the state-may on extraordinary occasions convene the assembly, and in case of disagreement between the two houses with respect to the time of adjournment, adjourn them to such time as he shall think proper, not beyond the fourth Monday in the mouth of November then next ensuing.
8. - 2. A lieutenant-governor is to be chosen at the same time, in the same manner, continue in office for the same period, and be possessed of the same qualifications as the governor. Art. 2, sect. 3. In case of the impeachment of the governor, or his removal from office, death, resignation, or absence from the state, the lieutenant-governor shall succeed to his office. And in case of the impeachment of the lieutenant-governor, or his removal from office, death, resignation, or absence from the state, the president of the senate shall succeed to his office, till a nomination to those offices respectively shall be made by the senate and house of representatives, for the remainder of the time for which the officer so impeached, removed from office, dying, resigning, or being absent, was elected. Art. 2, s. 5.
9. - 3. The judicial power shall be vested in such superior and inferior courts of law and equity, as the legislature shall, from time to time, direct and establish. The judges of each shall hold their commissions during good behaviour; and judges of the superior courts shall, at stated times, receive a compensation for their services, which shall neither be increased nor diminished during their continuance in office: but they shall receive no fees or perquisites of office, nor, hold any other office of profit or trust, under this state, the United States, or any other power. Art. 3, sect. 1. The judges are required to meet at such times, and places, as shall be prescribed by the act of the legislature, and sit for the purpose of hearing and determining all motions which may be made for new trials, and in arrest of judgment, and such points of law as may be submitted to them. Amend. of Dec. 19, 1816.
SOVEREIGN. A chief ruler with supreme power; one possessing sovereignty. (q. v.) It is also applied to a king or other magistrate with limited powers.
2. In the United States the sovereignty resides in the body of the people. Vide Rutherf. Inst. 282.
SOVEREIGN, Eng. law. The name of a gold coin of Great Britain of the value of one pound sterling.
SOVEREIGN STATE. One which governs itself independently of any foreign power.
SOVEREIGNTY. The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Story on the Const. §207.
2. Abstractedly, sovereignty resides in the body of the nation and belongs to the people. But these powers are generally exercised by delegation.
3. When analysed, sovereignty is naturally divided into three great powers; namely, the legislative, the executive, and the judiciary; the first is the power to make new laws, and to correct and repeal the old; the second is the power to execute the laws both at home and abroad; and the last is the power to apply the laws to particular facts; to judge the disputes which arise among the citizens, and to punish crimes.
4. Strictly speaking, in our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; (q. v.) and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. (q. v.) 2 Dall. 471; and vide, generally, 2 Dall. 433, 455; 3 Dall. 93; 1 Story, Const. §208; 1 Toull. n. 20 Merl. Reper. h. t.
SPADONES, civil law. Those who, on account of their temperament, or some accident they have suffered, are unable to procreate. Inst. 1, 11, 9; Dig. 1, 7, 2, 1; and vide Impotence.
SPARSIM. This Latin adverb signifies scatteredly, here and there, in a scattered manner, sparsedly, dispersedly. It is sometimes used in law; for example, the plaintiff may recover the place wasted, not only where the injury has been total, but where trees, growing sparsim in a close, are cut. Bac. Ab. Waste, M; Brownl. 240; Co. Litt. 54, a; 4 Bouv. Inst. n. 3690.
TO SPEAK. This term is used in the English law, to signify the permission given by a court to the prosecutor and defendant in some cases of misdemeanor, to agree together, after which the prosecutor comes into court and declares himself to be satisfied; when the court pass a nominal sentence. 1 Chit. Pr. 17.
SPEAKER. The presiding officer of the house of representatives of the United States is so called. The presiding officer of either branch of the state legislatures generally bears this name.
SPEAKING DEMURRER, equity pleading. One which contains an argument in the body of it; as, for instance, when a demurrer says, "in or about the year 1770," which is upwards of twenty years before the bill filed. 2 Ves. jr. 83; S. C. 4 Bro. C. C. 254.
SPECIAL. That which relates to a particular species or kind, opposed to general; as special verdict and general verdict; special imparlance and general imparlance; special jury, or one selected for a particular case, and general jury; special issue and general issue, &c.
SPECIAL AGENT. A special agent is one whose authority is confined to a particular, or an individual instance. It is a general rule, that he who is invested with a special authority, must act within the bounds of his authority, and he cannot bind his principal beyond what he is authorized to do. 2 Bouv. Inst. n. 1299; 2 John. 48; 1 Wash. C. C. lT4; 5 John. 48; 15 John. 44; 8 Wend. 494.
SPECIAL ASSUMPSIT, practice. Where an action of assumpsit (q. v.) has been brought on a special contract, and the plaintiff declares upon it, setting out its particular language, or its legal effect. It is distinguished from a general assumpsit, where the plaintiff, instead of setting out the particular language, or effect of the original contract, declares as for a debt, arising out of the execution of the contract, where that constitutes the debt. 3 Bouv. Inst. n. 3426.
SPECIAL BAIL. A person who becomes specially bound to answer for the appearance of another; the recoguizance or act by which such person thus becomes bound, is also called special bail. Vide Bail.
SPECIAL CONSTABLE. One who has been appointed a constable for a particular occasion, as in the case of an actual tumult or a riot, or for the purpose of serving a particular process.
SPECIAL DAMAGES. Such as actually have been suffered, and are not implied by law. Vide Damages, Special; and 1 Chit. Pl. 385; Com. Dig. Action on the case for Defamation, D 30, G 11.
SPECIAL DEMURRER, pleading. One which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection, and the particular ground of the exception. 3 Bouv. Inst. n. 3022. See Demurrer.
SPECIAL DEPOSIT. A deposit made of a particular thing with the depositary: it is distinguished from an irregular deposit.
2. When a thing has been specially deposited with a depositary, the title to it remains with the depositor, and if it should be lost, the loss will fall upon him. When, on the contrary, the deposit is irregular, as where money is deposited in a bank, the title to which is transferred to the bank, if it be, lost, the loss will be borne by the bank. This will result from the same principle; the loss will fall, in both instances, on the owner of the thing, according to the rule res perit domino. See 1 Bouv. Inst. n. 1 054.
SPECIAL ERRORS. Special pleas in error are those which assign for error matters in confession and avoidance, as a release of errors, the act of limitations, and the like, to which the plaintiff in error may reply or demur.
SPECIAL IMPARLANCE, pleading. One which contains the clause, "saving to himself all advantages and exceptions, as well to the writ, as to the declaration aforesaid." 2 Chit. Pl. 407, 8.
2. This imparlance admits the jurisdiction of the court, but the defendant may plead in abatement or to the action; that is, to the writ or the count. Gould. on Pl. c. 2, §18; Lawes on Pl. 84. See imparlance.
SPECIAL INJUNCTION. One obtained only on motion and petition, with notice to the other party, and is applied for, sometimes on affidavit before answer, but more frequently upon merits disclosed in the defendant's answer. 4 Bouv. lust. n. 3756. See Injunction.
SPECIAL ISSUE, pleading. A plea to the action which denies some particular material allegation, which is in effect a denial of the entire right of action. It differs from the general issue whicli traverses or denies the whole declaration or indictment. Gould. on Pl. c. 2, §38. See General Issue; Issue.
SPECIAL JURY. One selected in a particular way by the parties. A pannel is made out, and each party is entitled to strike from it the names of a certain number of jurors, as provided for by the local statutes, and from those who remain, the jury in that case must be selected. This is also called a struck jury.
SPECIAL NON EST FACTUM. The name of a plea by which the defendant says that the deed which he has executed is not his own or binding upon him, because of some circumstance which shows that it was not intended to be his deed, or because it was not binding upon him for some lawful reason; as, when the defendant delivered the deed to a third person as an escrow to be delivered upon a condition, and it has been delivered without the performance of the condition, he may plead non est factum, state the fact, of the conditional delivery, the non-performance of the condition, and add, "and so it is not his deed;" or if the defendant be a feme covert, she may plead non est factum, that she was a feme covert at the time the deed was made, "and so it is not her deed." Bac. Ab. Pleas, &c. H 3, 1 2; Gould. on Pl. c. 6, part 1, §64. See Issint.
SPECIAL OCCUPANT, estates. When an estate is granted to a man and his heirs during the life, of cestui que vie, and the grantee die without alienation, and while the life for which he held continues, the heir will succeed, and is called a special occupant. 2 Bl. Com. 259. In the United States the statute provisions of the different states vary considerably upon this subject. In New York and New Jersey, special occupancy is abolished. Virginia, and probably Maryland, follow the English statutes; in Massachusetts and other states, where the real and personal estates of intestates are distributed in the same way and manner, the question does not seem to be material. 4 Kent, Com. 27.
SPECIAL PARTNERSHIP. Special or limited partnerships are of two kinds; 1. Those at common law. 2. Limited partnerships, or those in commendam.
2. Special partnerships at common law, are those formed for a particular or special branch of business, as contradistinguished from the general business of the parties, or of one of them.
3. A limited or special partnership, under special acts of assembly, may be found in several states. In such partnerships some of the partners are liable as general partners, while others are responsible only to the extent of the capital they have furnished. See 2 Bouv. Inst. n. 1472, 1473, and In Commendam; Partnership.
SPECIAL PLEA IN BAR. One which advances new matter. It differs from the general in this, that the latter denies some material allegation, but never advances new matter. Gould on Pl. c. 2, §38.
SPECIAL PLEADER, Engl. practice. A special pleader is a lawyer whose professional occupation is to give verbal or written opinions upon statements submitted to him, either in writing or verbally, and to draw pleadings, civil or criminal, and such practical proceedings as may be out of the general course. 2 Chit. Pr. 42.
SPECIAL PLEADING. The allegartion of special or new matter, as distinguished from a direct denial of matter previously alleged on the opposite side. Gould on Pl. c. 1, s. 18; Co. Litt. 282; 3 Wheat. R. 246 Com. Dig. Pleader, E 15.
SPECIAL PROPERTY. This term is used as synonymous with qualified or limited property. It is that property which is not perfect in the hands of the possessor, but his right is qualified or limited; as, where a person is possessed of an animal ferae naturae, he has a property in such animal, but this is not a general right, for if the animal should escape, and be taken by another person, the latter only would have a special property in it.
2. Again, a person may have a special property in a chattel in consequence of the peculiar circumstances of the owner; a bailee, for example, has a special property in the thing bailed. 1 Bouv. Inst. n. 475 to 477.
SPECIAL REQUEST. One actually made, at a particular time and place; this term is used in contradistinction to a general request, which need not state. the time when, nor place where made. 3 Bouv. Inst. n. 2843.
SPECIAL RULE. A rule or order of court made in a particular case, for a particular purpose; it is distinguished from a general rule, which applies to a class of cases. It differs also from a common rule, or rule of course.
SPECIAL TRAVERSE, pleading. A technical special traverse begins in most cases, with the words absque hoc, (without this,) which words in pleading form a technical form of negation. Lawes' Pl. 116 to 120.
2. A traverse commencing with these words is special, because, when it thus commences, the inducement and the negation are regularly both special; the former consisting of new matter, and the latter pursuing, in general, the words of the allegation traversed, or at least those of them which are material. For example, if the defendant pleads title to land in himself, by alleging that Peter devised the land to him, and then died seised in fee; and the plaintiff replies that Peter died seised in fee intestate, and alleges title in himself, as heir of Peter without this, that Peter devised the land to the defendant; the traverse is special. Here the allegation of Peter's intestacy, &c., forms the special inducement; and the absque hoc, with what follows it, is a special denial of the alleged devise, i. e. a denial of it in the words of the allegation. Lawes on Pl. 119, 120; Gould, Pl. ch. 7, §6, 7; Steph. Pl. 188. Vide Traverse; General Traverse.
SPECIAL TRUST. A special trust, is one where a trustee is interposed for the execution of some purpose particularly pointed out, and is not, as in the case of a simple trust, a mere passive depositary of the estate, but is required to exert himself actively in the execution of the settler's intention; as, where a conveyance is made to trustees upon trust to reconvey, or to sell for the payment of debts. 2 Bouv. Inst. n. 1896. See Trust.
SPECIAL VERDICT, practice. A special verdict is one by which the facts of the case are put on the record, and the law is submitted to the judges. Vide Verdict; Bac. Ab. Verdict, D.
SPECIALTY, contracts. A writing sealed aud delivered, containing some agreement. 2 Serg. & Rawle, 503; 1 Binn. Rep. 261; Willes, 189; 1 P. Wms. 130. In a more confined meaning, it signifies a writing sealed and delivered, which is given as a security for the payment of a debt, in which such debt is particularly specified. Bac. Ab. Obligation, A.
2. Although in the body of the writing it is not said, that the parties have set their hands and seals, yet if the instrument be really sealed it is a specialty, and if it be not sealed, it is not a specialty, although the parties in the body of the writing make mention of a seal. 2 Serg. & Rawle, 504; 2 Rep. 5 a; Perk. §129. Vide Bond; Debt; Obligation.
SPECIE. Metallic money issued by public authority.
2. This term is used in contradistinction to paper money, which in some countries is emitted by the government, and is a mere engagement which repre-sents specie. Bank paper in the United States is also called paper money. Specie is the only constitutional money in this country. See 4 Monr. 483.
SPECIFIC LEGACY. A bequest of a particular thing.
2. It follows that a specific legacy may be of animals or inanimate things, provided they are specified and separated from all other things; a specific legacy may therefore be of money in a bag, or of money marked and so described; as, I give two eagles to A B, on which are engraved the initials of my name. A specific legacy may also be given out of a general fund. Touch. 433 Amb. 310; 4 Ves. 565; 3 Ves. & Bea. 5. If the specific article given be, not found among the assets of the testator, the legatee loses his legacy; but on the other hand, if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies. 1 Vern. 31; 1 P. Wms. 422; 3 P. Wms. 365; 3 Bro. C. C. 160; vide 1 Roper on Leg. 150; 1 Supp. to Ves. jr. 209 . Id. 231; 2 Id. 112; and articles Legacy; Legatee.
SPECIFIC PERFORMANCE, remedies. The actual accomplishment of a contract by the party bound to fulfil it.
2. Many contracts are entered into by parties to fulfil certain things, and then the contracting parties neglect or refuse to fulfil their engagements. In such cases the party grieved has generally a remedy at law, and he may recover damages for the breach of the contract; but, in many cases, the recovery of damages is an incompetent remedy, and the party seeks to recover a specific performance of the agreement.
3. It is a general rule, that courts of equity will entertain jurisdiction for a specific performance of agreements, whenever courts of law can give but an inadequate remedy; and it is immaterial whether the subject relate to real or personal estate. 1 Madd. Ch. Pr. 295; 2 Story on Eq. §717; 1 Sim, & Stu. 607; 1 P. Wms. 570; 1 Sch. & Lef. 553; 1 Vern. 159.
4. But the rule is confined to cases where courts of law cannot give an adequate remedy. 2 Story on Eq. §718; Eden on Inj. ch. 3, p. 27. Vide, generally, 2 Story on Eq. ch. 18, §712 to 792; 1 Supp. to Ves. jr. 96, 148, 184, 211, 495; 2 Supp. to Ves. jr. 65, 164; Fonb. Eq. b. 1, c. 1, s. 5; Sugd. Vend. 145.
SPECIFICATION, civil law. A term used in the civil law, by which is meant a person's making a new species or subject from materials belonging to another. Bouv. Inst. Theolo. ps. 1, c. 1, art. 1, §4, Is. 4, p. 74.
2. When the new species can be again reduced to the matter of which it was made, the law considers the former mass as still existing, and, therefore, the new species as an accessory to the former subject; but where the thing made cannot be so reduced, as in the case of wine, which cannot be again turned into grapes, there is no place for the fictio juris; and, there, the workmanship draws after it the property of the material. Inst. 2, 1, 25 Dig. 41, 1, 7, 7. See Accession; Confusion; Mixtion; and Aso & Man. Inst. B. 2, t. 2, c. 8.
SPECIFICATION, practice, contracts. A particular and detailed account of a thing: example, in order to obtain a patent for an invention, it is necessary to file a specification or an instrument of writing, which must lay open and disclose to the public every part of the process by which the invention can be made useful if the specification does not contain the whole truth relative to the discovery, or contains more than is requisite to produce the desired effect, and the concealment or addition was made for the purpose of deception, the patent would be void; for if the specification were insufficient on account of its want of clearness, exactitude or good faith, it would be a fraud on society that the patentee should obtain a monopoly without giving up his invention. 2 Kent, Com. 300; 1 Bell's Com. part 2, c. 3, s. 1, p. 112; Perpigna on Pat. 67; Renouard, Des Brevets d'Inv. 252.
2. In charges against persons accused of military offences, they must be particularly described and clearly expressed; this is called the specification. Tytl. on Courts Mart. 109.
SPECIMEN. A sample; a part of something by which the other may be known.
2. The act of congress of July 4, 1836, section 6, requires the inventor or discoverer of an invention or discovery to accompany his petition and specification for a patent with specimens of ingredients, an of the composition of matter, sufficient in quantity for the purpose of experiment, where the invention or discovery is of the composition of matter.
SPECULATION, contracts. The hope or desire of making a profit by the purchase and resale of a thing. Pard. Dr. Com. n. 12. The profit so made; as, be made a good speculation.
SPEECH. A formal discourse in public.
2. The liberty of speech is guarantied to members of the legislature, to counsel in court in debate.
3. The reduction of a speech to writing and its publication is a libel, if the matter contained in it is libelous; and the repetition of it upon occasions not warranted by law, when the matter is slanderous, wili be slander and. tho character of the speaker will be no protection to him from an action. 1 M. & S. 273; 1 Esp. C. 226 Bouv. Inst. Index, h. t. See Debate; Liberty of speech.
SPELLING, The art of putting the proper letters in words.
2. It is a rule that when it appears with certainty what is meant, bad spelling will not avoid a contract; for example, where a man agreed to pay thirty pounds, he was held bound to pay thirty pounds; and seutene was holden to be seventeen. Cro. Jac. 607; 10 Coke, 133, a; 2 Roll. Ab. 147.
3. Even in an indictment undertood has been holden as understood. 1 Chit. Cr. Law.
4. A misspelling of a name in a declaration, will not be sufficient to defeat the plaintiff, on the ground of variance between the writing produced, and the declaration, if such name be idem sonans; as Kay for Key. 16 East, 110; 2 Stark. 29; Segrave for Seagrave. 2 Str. 889. See Idem Sonans.
SPENDTHRIFT. By the Rev. Stat. of Vermont, tit. 16, c. 65, s. 9, spendthrift is defined to be a person who by excessive drinking) gaming, idleness or debauchery of any kind, shall so spend, waste, or lessen his estate as to expose himself or his family to want or suffering, or expose the town to charge or expense, for support of himself or family.
SPERATE. That of which there is hope.
2. In the accounts of an executor and the inventory of the personal assets, he should distinguish between those assets which are sperate, and those which are desperate; he will be prima facie responsible for the former, and discharged for the latter. 1 Chit. Pr. 520; 2 Williams Ex. 644; Toll. Ex. 248. See Desperate.
SPES RECUPERANDI. The hope of recovery. This term is applied to cases of capture of an enemy's property as a booty or prize. As between the belligerent parties, the title to the property taken as a prize passes the moment there is no longer any hope of recovery. 2 Burr. Rep. 683. Vide Infra praesidea; Jus Postliminy; Bopty; Piize.
SPINSTER. An addition given, in legal writings, to a woman who never was married. Lovel. on Wills, 269.
SPLITTING A CAUSE OF ACTION. The bringing an action for only a part of the cause of action. This is not permitted either at law nor in equity. 4 Bouv. Inst. n. 4167.
SPOLIATION, Eng. eccl. law. The name of a suit sued out in the spiritual court to recover for the fruits of the church, or for the church itself. F. N. B. 85.
2. It is also a waste of church property by an ecclesiastical person. 3 Bl. Com. 90.
SPOLIATION, torts. Destruction of a thing by the act of a stranger; as, the erasure or alteration of a writing by the act of a stranger, is called spoliation. This has not the effect to destroy its character or legal effect. 1 Greenl. Ev. §566. 2. By spoliation is also understood the total destruction of a thing; as, the spoliation of papers, by the captured party, is generally regarded as proof of. guilt, but in America it is open to explanation, except in certain cases where there is a vehement presumption of bad faith. 2 Wheat. 227, 241; 1 Dods. Adm. 480, 486. See Alteration.
SPONSALIA, or STIPULATIO SPONSALITIA. A promise lawfully made between persons capable of marrying each other, that at some future time they will marry. See Espousals; Ersk. Inst. B. 1, t. 6, n. 3.
SPONSIONS, international law. Agreements or engagements made by certain public officers, as generals or admirals, in time of war, either without author-ity, or by exceeding the limits of authority under which they purport to be made.
2. Before these conventions can have any binding authority on the state, they must be confirmed by express or tacit ratification. The former is given in positive terms and in the usual forms; the latter is justly implied from the fact of acting under the agreement as if bound by it, and from any other circumstance from which an assent may be fairly presumed. Wheat. Intern. Law, pt. 3, c. 2, §3; Grotius, de Jur. Bel. ac Pac. 1. 2, c. 15, §16; Id. 1. 3, c. 22, 1-3: Vattel, Law of Nat, B. 2, c. 14, 209 -212; Wolff, 1156.
SPONSOR, civil law. He who intervenes for another voluntarily and without being requested. The engagement which he enters into is only accessory to the principal. Vide Dig. 17, 1, 18; Nov. 4, ch. 1 Code de Com. art. 158, 159; Code Nap. 1236 Wolff, Inst. §1556.
SPRING. A fountain.
2. The owner of the soil has the exclusive right to use a spring arising on his grounds. When another has an easement, or right to draw water from such a spring, acquired by grant or prescription, if the spring fails the easement ceases, but if it returns, the right revives.
3. The waters which flow from the spring give rise to a variety of diffi-culties, the principal of which are, 1st. The owner of the inheritance in which the spring arises turns their course. The owner of the inferior estate, whose, meadow they fertilized, and who is deprived of them, claiming the right to them. 2d. The owner of the spring does not prevent the water from flowing on the inferior estate, but gives them a new direction injurious to it. 3d. The owner of the superior inheritance disposes of the water in such a way as to deprive the owner of the estate below him. The rights of these different owners will be separately considered.
4. - l. The owner of land on which there is a natural spring, has a right to use it for domestic and culinary purposes and for watering his cattle, and he may make an aqueduct to another part of his land, and use all the water required to keep the aqueduct in order, or to keep the water pure. 15 Conn. 366. He may also use it for irrigation, provided the volume be not materially decreased. Ang. W. C. 34. Vide Irrigation; and 1 Root, 535; 2 Watts. 327; 2 Hill, S. C. 634; Coxe, 460; 2 Dev. & Bat. 50; 9 Conn. 291; 3 Pick. 269; 13 Mass. 420; 8 Mass. 136; 8 Greenl. 253.
5. - 2. The owner of the spring cannot lawfully turn the current or give it a new direction. He is bound to let it enter the inferior estate on the same level it has been accustomed to, and at the same place; for every man is entitled to a stream of water flowing through his land, without diminution or alteration. 6 East, 206; 2 Conn. 584. Vide 3 Rawle, 84 12 Wend. 330; 10 Conn. 213; 14 Verm. 239.
6. - 3. The owner of the superior inheritance, or of the land on which there is a spring, has no right to deprive the owner of the estate below him; 1 Yeates, 574; 5 Pick. 175; 3 Har. & John. 231; 12 Verm. 178; 13 Conn. 303; 3 Scam. 492; nor can be detain the water unreasonably. 17 John. 306; 2 B. C. 910. Vide Ham. N. P. 199; 1 Dall. 211; 3 Rawle's R. 256; Jus Aquaeductus; Pool; Stagnum; Back Water; lrrigation, Mill; Rain Water; Water Course.
SPRINGING USE, estates. One to arise on a future event, when no preceding estate is limited, and does not take effect in derogation of any preceding interest. Example: a grant is made to A in fee, to the use of B in fee, after the fourth of July; no use arises till the limited period. The use in the mean time results to the grantor, who has a determinable fee. A springing use differs from a resulting use, (q. v.) or a shifting use. (q. v.) 4 Kent, Com. 292; Com. Dig. Uses, K 7 Wils. on Springing Uses; Corn. on Uses, 91; 2 Bouv. Inst. n. 1889.
SPY. One who goes into a place for the purpose of ascertaining the best way of doing an injury there.
2. The term is mostly applied to an enemy who comes into the camp for the purpose of ascertaining its situation in order to make an attack upon it. The punishment for, this crime is death. See Articles of War, 1 Story's Laws U. S. 992; Vattel, Droit des Gens. liv. 3, §179.
SQUATTER. One who settles on the lands of others without any legal author-ity; this term is applied particularly to persons who settle on the public land. 3 Mart. N. S. 293.
TO STAB. To make a wound with a pointed instrument; a stab differs from a cut, (q. v.) or a wound. (q. v.) Russ. & Ry. 356; Russ. on Cr. 597; Bac. Ab. Maihem, B.
STAGNUM, estates. A pool. It is said to consist of land and water, and therefore by the name of stagnum, the water and the land may be passed. Co. Litt. 5.
STAKEHOLDER, contracts. A third person, chosen by two or more persons, to keep in deposit property, the right or possession of which is contested between them and to be delivered to the one who shall establish his right to it. Thus each of them is considered as depositing the whole thing. This distin-guishes this contract from that which takes place when two or more tenants in common deposit a thing with a bailee. Domat, Lois Civ. liv. 1, t. 7, s. 4; 1 Vern. R. 44, n. 1.
2. A person having in his hands money or other property claimed by several others, is considered in equity as a stakeholder. 1 Vern. R. 144.
3. The duties of a stakeholder are to deliver the thing holden by him to the person entitled to it on demand. It is frequently questionable who is entitled to it. In case of an unlawful wager, although be may be justified for delivering the thing to the winner, by the express or implied consent of the loser; 8, John. 147; yet if before the event has happened he has been required by either party to give up the thing deposited with him by such party, he is bound so to deliver it; 3 Taunt. 377; 4 Taunt. 492; or if, after the event has happened, the losing party give notice to the stakeholder not to pay the winner, a payment made to him afterwards will be made in his own wrong, and the party who deposited the money or thing may recover it from the stakeholder. 16 S. & R. 147; 7 T. R. 536; 8 T. R. 575; 4 Taunt. 474; 2 Marsh. 542. See 3 Penns. R. 468; 4 John. 426; 5 Wend. 250; 2 P. A. Browne, 182; 1 Bailey, 486, 503. See Wagers.
STALE DEMAND. A stale demand is a claim which has been for a long time undemanded; as, for example, where there his been a delay of twelve years, unexplained. 3 Mason, 161.
STAMP, revenue. An impression made on paper, by order of the government, which must be used in reducing certain contracts to writing, for The purpose of raising a revenue. Vide Stark. Ev. h. t.; 1 Phil. Ev. 444.
2. Maryland is the only state in the United States that has enacted a stamp.
TO STAND. To abide by a thing; to submit to a decision; to comply with an agreement; to have validity, as the judgment must stand.
STAND SEISED TO USES. This phrase is frequently used in relation to conveyances under the statute of uses. A covenant to stand seised to uses is a species of conveyance which derives its effect from the statute of uses, by which a man, seised of lands, covenants, in consideration of blood or marriage, that he will stand seised of the same, to the use of his child, wife, or kinsman, for life, in tail or in fee. 2 Bouv. Inst. n. 2080.
STANDARD, in war. An ensign or flag used in war.
STANDARD, measure. A weight or measure of certain dimensions, to which all other weights and measures must correspond; as, a standard bushel. Also the quality of certain metals, to which all others of the same kind ought to be made to conform; as, standard gold, standard silver. Vide Dollar; Eagle; Money.
STAPLE, intern. law. The right of staple as exercised by a people upon foreign merchants, is defined to be, that they may not allow them to set their merchandises and wares to sale but in a certain place.
2. This practice is not in use in the United States. 1 Chit. Com. Law, 103; 4 Inst. 238; Malone, Lex Mere. 237; Bac. Ab. Execution, B 1. Vide Statute Staple.
STAR CHAMBER, Eng. law. A court which formerly had great jurisdiction and power, but which was abolished by stat. 16, C. I., c. 10, on account of its usurpations and great unpopularity. It consisted of several of the lords spir-itual and temporal, being privy counsellors, together with two judges of the courts of common law, without the intervention of a jury. Their legal jurisdiction extended over riots, perjuries, mishehaviour of public officers, and other great misdemeanors. The judges afterwards assumed powers, and stretched those they possessed to the utmost bounds of legality. 4 Bl. Com. 264.
STARE DECISIS. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred. Vide 1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.
STARE IN JUDICIO. The act of appearing before a tribunal, either as plain-tiff or defendant. Vide Ester en jugement.
STATE, government. This word is used in various senses. In its most enlarged sense, it signifies a self-sufficient body of persons united together in one community for the defence of their rights, and to do right and justice to foreigners. In this sense, the state means the whole people united into one body politic; (q. v.) and the state, and the people of the state, are equivalent expressions. 1 Pet. Cond. Rep. 37 to 39; 3 Dall. 93; 2 Dall. 425; 2 Wilson's Lect. 120; Dane's Appx. §50, p. 63 1 Story, Const. §361. In a more limited sense, the word `state' expresses merely the positive or actual organization of the legislative, or judicial powers; thus the actual government of the state is designated by the name of the state; hence the expression, the state has passed such a law, or prohibited such an act. State also means the section of territory occupied by a state, as the state of Pennsylvania.
2. By the word state is also meant, more particularly, one of the commonwealths which form the United States of America. The constitution of the United States makes the following provisions in relation to the states.
3. Art. 1, s. 9, §5. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or re-venue to the ports of one state over those of another, nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another.
4. - §6. No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
5. - §7. No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of congress, accept of any present, emolument, office, or title of any kind whatever, from, any king, prince, or foreign state.
6. - Art. 1, s. 10, §1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payments of debts; pass any bill of attainder, ex-post-facto, or law impairing the obligation of contracts; or grant any title of nobility.
7. - §2. 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 congress. No state, shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
8. 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.
9. The several states composing the United States are sovereign and independent, in all things not surrendered to the national government by the constitution, and are considered, on general principles, by each other as foreign states, yet their mutual relations are rather those of domestic independence, than of foreign alienation. 7 Cranch, 481; 3 Wheat. 324; 1 Greenl. Ev. §489, 504. Vide, generally, Mr. Madison's report in the legislature of Virginia, January, 1800; 1 Story's Com. on Const. §208; 1 Kent, Com. 189, note b; Grotius, B. 1, c. 1, s. 14; Id. B. 3, c. 3, s. 2; Burlamaqui, vol. 2, pt. 1, c. 4, s. 9; Vattel, B. 1, c. 1; 1 Toull. n. 202, note 1 Nation; Cicer. de Repub. 1. 1, s. 25.
STATE, condition of persons. This word has various acceptations. If we inquire into its origin, it will be found to come from the Latin status, which is derived from the verb stare, sto, whence has been made statio, which signifies the place where a person is located, stat, to fulfil the obligations which are imposed upon him.
2. State is that quality which belongs to a person in society, and which secures to, and imposes upon him different rights and duties in consequence of the difference of that quality.
3. Although all men come from the hands of nature upon an equality, yet there are among them marked differences. It is from nature that come the distinctions of the sexes, fathers and children, of age and youth, &c.
4. The civil or municipal laws of each people, have added to these natural qualities, distinctions which are purely civil and arbitrary, founded on the manners of the people, or in the will of the legislature. Such are the differences, which these laws have established between citizens and aliens, between magistrates and subjects, and between freemen and slaves; and those which exist in some countries between nobles and plebeians, which differences are either unknown or contrary to natural law.
5. Although these latter distinctions are more particularly subject to the civil or municipal law, because to it they owe their origin, it nevertheless extends its authority over the natural qualities, not to destroy or to weaken them, but to confirm them and to render them more inviolable by positive rules and by certain maxims. This union of the civil or municipal and natural law, form among men a third species of differences which may be called mixed, because they participate of both, and derive their principles from nature and the perfection of the law; for example, infancy or the privileges which belong to it, have their foundation in natural law; but the age and the term of these prerogatives are determined by the civil or municipal law.
6. Three sorts of different qualities which form the state or condition of men may then be distinguished: those which are purely natural, those purely civil, and those which are composed of the natural and civil or municipal law. Vide 3 Bl. Com. 396; 1 Toull. n. 170, 171; Civil State.
TO STATE. To make known specifically; to explain particularly; as, to state an account, or to show the different items of an account; to state the cause of action in a declaration.
STATEMENT, pleading and in practice. In the courts of Pennsylvania, by the act to regulate arbitrations and proceedings in courts of justice, passed March 21, 1806, 4 Smith's Laws of Penn. 828, it is enacted, "that in all cases where a suit may be brought in any court of record for the recovery of any debt founded on a verbal promise, book account, note, bond, penal or single bill, or all or any of them, and which from the amount thereof may not be cognizable before a justice of the peace, it shall be the duty of the plaintiff, either by himself, his agent or attorney, to file in the office of the pro-thonotary a statement of his, her or their demand, on or before the third day of the term to which the process issued is returnable, particularly specifying the date of the promise, book account, note, bond, penal or single bill or all or any of them, on which the demand is founded, and the whole amount which he, she, or they believe is justly due to him, her or them from the defendant."
2. This statement stands in the place of a declaration, and is not restric-ted to any particular form; 3 Serg. & Rawle, 406; it is an immethodical declaration, stating in substance the time of the contract, the sum, and on what founded, with (what is an important principle in a statement, 6 Serg. & Rawle, 21,) a certificate of the belief of the plaintiff or his agent, of what is really due. Serg. & Rawle, 28. See 6 Serg. & Rawle, 53; 8 Serg. & Rawle, 567; 2 Serg. & Rawle, 537; 2 Browne's R. 40; 8 Serg. & R. 316.
STATES. By this name are understood in some countries, the assembly of the different orders of the people to regulate the affairs of the commonwealth, as, the states general.
STATION, civil law. A place where ships may ride in safety. Dig. 49, 12, 1, 13; id. 50, 15, 59.
STATING-PART OF A BILL, chancery practice. That part of a bill which contains a narrative of the facts and circumstances of the plaintiff's case, and the wrong or grievance of which he complains, and the names of the persons by whom done, and against whom he seeks redress, is called the stating part of the bill. Bart. Suit in Eq. 27; Coop. Eq. Pl. 9; Story, Eq. Pl. §27.
STATU LIBERI, in Louisiana. Slaves for a time, who have acquired the right of being free at a time to come, or on a condition which is not fulfilled, or in a certain event which has not happened, but who, in the mean time, remain in a state of slavery. Code, art. 37. See 8 M. R. 219; 3 L. R. 176; 6 L. R. 571; 4 N. S. 102; 7 N. S. 351. This is substantially the definition of the civil law. Hist. de la Jur. 1. 40; Dig. 40, 7, 1; Code, 7, 2, 13.
STATUS. The condition of persons. It also means estate, because it signifies the condition or circumstances in which the owner stands with regard to his property. 2 Bouv. Inst. n. 1689.
STATUTE. The written will of the legislature, solemnly expressed according to the forms prescribed in the constitution; an act of the legislature.
2. This word is used in contradistinction to the common law. Statutes acquire their force from the time of their passage unless otherwise provided. 7 Wheat. R. 104: 1 Gall . R. 62.
3. It is a general rule that when the provision of a statute is general, everything which is necessary to make such provision effectual is supplied by the common law; Co. Litt. 235; 2 Inst. 222; Bac. Ab. h. t. B; and when a power is given by statute, everything necessary for making it effectual is given by implication: quando le aliquid concedit, concedere videtur et id pe quod devenitur ad aliud. 12 Co. 130, 131 2 Inst. 306.
4. Statutes are of several kinds; namely, Public or private. 1. Public statutes are those of which the judges will take notice without pleading; as, those which concern all officers in general; acts concerning trade in general or any specific trade; acts concerning all persons generally. 2. Private acts, are those of which the judges wiil not take notice without pleading; such as concern only a particular species, or person; as, acts relating to any particular place, or to several particular places, or to one or several particular counties. Private statutes may be rendered public by being so declared by the legislature. Bac. Ab. h. t. F; 1 Bl. Com. 85. Declaratory or remedial. 1. A declaratory statute is one which is passed in order to put an end to a doubt as to what the common law is, and which declares what it is, and has ever been. 2. Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law as may have been discovered. 1 Bl. Com. 86. These remedial statutes are themselves divided into enlarging statutes, by which the common law is made more comprehensive and extended than it was before; and into restraining statutes, by which it is narrowed down to that which is just and proper. The term remedial statute is also applied to those acts which give the party injured a remedy, and in some respects those statutes are penal. Esp. Pen. Act. 1.
6. Temporary or perpetual. 1. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. 2. A perpetual statute is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which did not itself contain any limitation, is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter. Bac. Ab. h. t. D.
7. Affirmative or negative. 1. An affirmative statute is one which is enacted in affirmative terms; such a statute does not take away the common law. If, for example, a statute without negative words, declares that when certain requisites shall have been complied with, deeds shall, have in evidence a certain effect, this does not prevent their being used in evidence, though the requisites have not been complied with, in the same manner as they might have been before the statute was passed. 2 Cain. R. 169. 2. A negative statute is one expressed in negative terms, and so controls the common law, that it has no force in opposition to the statute. Bro. Parl. pl. 72; Bac. Ab. h. t. G.
8. Penal statutes are those which order or prohibit a thing under a certain penalty. Esp. Pen. Actions, 5 Bac. Ab. h. t. I, 9. Vide, generally, Bac. Ab. h. t.; Com. Dig. Parliament; Vin. Ab. h. t.; Dane's Ab. Index, h. t.; Chit. Pr. Index, h. t.; 1 Kent, Com. 447-459; Barrington on the Statutes, Boscaw. on Pen. Stat.; Esp. on Penal Actions and Statutes.
9. Among the civilians, the term statute is generally applied to all sorts of laws and regulations; every provision of law which ordains, permits, or prohibits anything is a statute without considering from what source it arises. Sometimes the word is used in contradistinction to the imperial Roman law, which, by way of eminence, civilians call the common law. They divide statutes into three classes, personal, real and mixed.
10. Personal statutes are those which have principally for their object the person, and treat of property only incidentally; such are those which regard birth, legitimacy, freedom, the fight of instituting suits, majority as to age, incapacity to contract, to make a will, to plead in person, and the like. A personal statute is universal in its operation, and in force everywhere.
11. Real statutes are those which have principally for their object, property, and which do not speak of persons, except in relation to property; such are those which concern the disposition, which one may make of his property either alive or by testament. A real statute, unlike a personal one, is confined in its operation to the country of its origin.
12. Mixed statutes are those which concern at once both persons and property. But in this sense almost all statutes are mixed, there being scarcely any law relative to persons, which does not at the same time relate to things. Vide Merl. Repert. mot Statut; Poth. Cout. d'Orleans, ch. 1; 17 Martin's Rep. 569-589; Story's Confl. of Laws, §12, et seq.; Bouv. Inst. Index, h. t.
STATUTE MERCHANT, English law. A security entered before the mayor of London, or some chief warden of a city, in pursuance of 13 Ed. 1. stat. 3, c. 1, whereby the lands of the debtor are conveyed to the creditor, till out of the rents and profits of them, his debt may be satisfied. Cruise, Dig. t. 14, s. 7; 2 Bl. Com. 160.
STATUTES STAPLE, English law. The statute of the staple, 27 Ed. HI. stat. 2, confined the sale of all commodities to be exported to certain towns in England, called estaple or staple, where foreigners might resort. It authorized a security for money, commonly called statute staple, to be taken by traders for the benefit of commerce; the mayor of the place is entitled to take a recognizance of a debt, in proper form, which has the effect to convey the lands of the debtor to the creditor, till out of the rents and profits of them he may be satisfied. 2 Bl. Com. 160; Cruise, Dig. tit. 14, s. 10; 2 Rolle's Ab. 446; Bac. Ab. Execution, B. 1 4 Inst. 238.
STATUTI, Rom. civ. law. From Constantine to Justinian, advocates, were arranged in two classes: viz. those called Statuti, and the supernumeraries. (q. v.) The Statute were those advocates whose names were inscribed in the registers of matriculation, and formed a part of the college of advocates. The number of advocates of this class was limited. See Calvini Lex ad vocem.
STAY OF EXECUTION, practice. A term during which no execution can issue on a judgment.
2. It is either conventional, when the parties agree that no execution shall issue for a certain period; or it is granted by law, usually on condition of entering bail or security for the money.
3. An execution issued before the expiration of the stay is irregular and will be set aside; and the plaintiff in such case may be liable to an action for damages. What is said above refers to civil cases.
4. In criminal cases when a woman is capitally convicted, and she is proved to be enceinte, (q. v.) there shall be a stay of execution till after her delivery. Vide Pregnancy.
STAYING PROCEEDINGS. The suspension of an action.
2. Proceedings are stayed absolutely or conditionally.
3. - 1. They are peremptorily stayed when the plaintiff is wholly incapaci-tated from suing; as, for example, when the plaintiff is not the holder, nor beneficially interested in a bill on which he has brought his action; 2 Cr, & M. 416; 2 Dowl. 336; Chitty on Bills, 335; 3 Chitty, Pr. 628; or when the plaintiff admits in writing, that he has no cause of action; 3 Chit. Prac. 370, 630; or when an action is brought contrary to good faith. Tidd's Prac. 515, 529, 1134; 3 Chit. Pr. 633.
4. - 2. Proceedings are sometimes stayed until some order of the court shall have been complied with; as, when the plaintiff resides in a foreign country, or in another estate, or is insolvent, and he has been ruled to give security for costs, the proceedings are stayed until such security shall be given; see Security for Costs; 3 Chit. Pr, 633, 635; or until the payment of costs in a, former action. 1 Chit. R. 195; 18 E. C. L. R. 64.
STEALING. This term imports, ex vi termini, nearly the same as larceny; but in common parlance, it does not always import a felony; as, for example, you stole an acre of my land.
2. In slander cases, it seems that the term stealing takes its complexion from the subject-matter to which it is applied, and will be considered as intended of a felonious stealing, if a felony could have been committed of such subject-matter. Stark. on Slan. 80; 12 Johns. Rep. 239; 3 Binn. R. 546; Whart. Dig. tit. Slander.
STELLIONATE, civil law. A name given generally, to all species of frauds committed in making contracts.
2. This word is said to be derived from the Latin stellio, a kind of lizard remarkable for its cunning and the change of its color, because those guilty of frauds used every art and cunning to conceal them. But more particularly it was the crime of a person who fraudulently assigned, sold, or engaged the thing which he had before assigned sold, or engaged to another, unknown to the person with whom be was dealing. Dig. 47, 20, 3; Code, 9, 34, 1; Merl. Repert. h. t.; Code Civil, art. 2069; 1 Bro. Civ. Law, 426.
3. In South Carolina and Georgia, a mortgagor who makes a second mortgage without disclosing in writing, to the second mortgagee, the existence of the first mortgage, is not allowed to redeem and, in the foraier state, when a person suffers a judgment, or enters into a statute or recognizance binding his land, afterwards mortgages it, without giving notice, in writing, of the prior incumbrance, he shall not be allowed to redeem, unless, within six months from a written demand, he discharges such incumbrauce. Prin. Dig. 161; 1 Brev. Dig. 166-8.
4. In Ohio a fraudulent conveyance is punished as a crime; Walk. Intr. 350; and, in Indians, any party to a fraudulent conveyance is subjected to a flue and to double damages. Ind. Rev. Laws, 189. See 12 Pet. 773.
STEP-DAUGHTER. In Latin privigna, is the daughter of one's wife, or of one's hushand.
STEP-FATHER. In Latin vitricus, is the hushand of one's mother who is not the father of the person spoken of.
STEP-MOTHER. In Latin noverca, is the wife of one's father, who is not the mother of the person spoken of.
STEP-SON. In Latin privignus, is the son of one's wife, or of one's hushand.
STERE. A French measure of solidity used in measuring wood. It is a cubic metre. Vide Measure.
STERILITY. Barrenness; incapacity to produce a child. It is curable and incurable; when of the latter kind, at the time of the marriage, and arising from impotency, it is a good cause for dissolving a marriage. 1 Fodere, Med. Leg. §254. See Impotency.
STERLING. Current money of Great Britain, but anciently a small coin, worth about one penny; and so called, as some suppose, because it was stamped with the figure of a small star, or, as others suppose, because it was first stamped in England in the reign of King John, by merchants from Germany called Esterlings. Pounds sterling, originally signified so many pounds in weight of these coins. Thus we find in Matthew Paris, A.D. 1242, the expression "Accepit a rege pro stipendio tredecim libras esterlingorum." The secondary or derived sense is a certain value in current money, whether in coins or other currency. Lowndes, 14. Watts' Gloss. Ad verbum.
STET PROCESSUS, practice. An order made, upon proper cause shown, that the process remain stationary. As where a defendant having become insolvent would, by moving judgment in the case of nonsuit, compel a plaintiff to proceed, the court will, on an affidavit, of the fact of insolvency, award a stet proces-sus. See 7 Taunt. Rep. 180, 1 Chit. Rep. 738; 10 Wentw. Pl. 43.
STEVEDORE. A person employed in loading and unloading vessels. Dunl. Adm. Pr. 98. Vide Arrameurs; Sac
STEWARD OF ALL ENGLAND. Seneschallus totius Angliae. An officer among the English who was invested with various powers, and, among others, it was his duty to preside on the trial of peers.
STEWS, Eng. law., Places formerly permitted in England to women of professed lewdness, and who, for hire, would prostitute their bodies to all comers.
2. These places were so called because the dissolute persons who visited them prepared themselves by bathing; the word stews being derived from the old French estuves, stove, or hot bath. 3 Inst. 205.
STILLICIDIUM, civ. law. The rain water that falls from the roof or eaves of a house by scattered drops. When it is gathered into a spout it is called flumen.
2. Without the constitution of one or other of these servitudes, no proprietor can build so as to throw the rain that falls from his house directly on his neighbor's grounds; for it is a restriction upon all property, nemo pro-test immitere in alienum; and he who in building breaks through that res-traint, truly builds on another man's property; because to whomsoever the area belong's, to him also belongs whatever is above it: cujus est solum, ejas est usque ad caelum. 3 Burge on the Conf. of Laws, 405. Vide Servitus Stillicidii. Inst. 3, 2, 1; Dig. 8, 2, 2.
STINT, Eng. law. The proportionable part of a man's cattle, which he may keep upon the common.
2. To use a thing without stint, is to use it without limit.
STIPULATED DAMAGES, contracts. The sum agreed by the parties to be paid, on a breach of a contract, by the party violating his engagement to the other.
2. It is difficult to distinguish, in some cases, between stipulated damages and a penalty; (q. v.) 3 Chitty's Commer. Law, 627; 2 Bos. & Pull. 346. The effect of inserting stipulated damages, either at law or equity, a pears to be, that both parties must abide by the stipulation, and the prescribed sum must be given. Holt, C. N. P. 46 Newl. Contr. 313; see 5 Taunt. Rep. 247. Vide Damages, Liquidated.
STIPULATION, contracts. In the Roman law, the contract of stipulation was made in the following manner, namely; the person to whom the promise was to be made, proposed a question to him from whom it was to proceed, fully expressing tho nature and extent of the engagement and, the question so proposed being answered in the affirmative, the obligation was complete.
2. It was essentially necessary that both parties should speak, (so that a dumb man could not enter into a stipulation) that the person making the promise should answer conformably to the specific question, proposed, without any material interval of time, and with the intention of contracting an obligation.
3. From the general use of this mode of contracting, the term stipulation has been introduced into common parlance, and, in modern language, frequently refer's to any thing which forms a material article of an agreement; though it is applied more correctly and more conformably to its original meaning to denote the insisting upon and requiring any particular engagement. 2 Evans' Poth. on Oblig. 19.
4. In this contract the Roman law dispensed with an actual consideration. See, generally, Pothier, Oblig. P. 1, c. 1, s. 1, art. 5.
5. In the admiralty courts, the first process is freq uently to arrest the defendant, and then they take the recognizances or stipulation of certain fide jussors in the nature of bail. 3 Bl. Comm. 108; vide Dunlap's Adm. Practice, Index, h. t.
6. These stipulations are of three sorts, namely: l. Judicatum solvi, by which the party is absolutely bound to pay such sum as may be adjudged by the court. 2 De judico sisti, by which he is bound to appear from time to time, during the pendency of the suit, and to abide the sentence. 3. De ratio, or De rato, by which he engages to ratify the acts of his proctor: this stipulation is not usual in the admiralty courts of the United States.
7. The securities are taken in the following manner, namely: 1. Cautio fide jussoria, by sureties. 2. Pignoratitia; by deposit. 3. Juratoria, by oath: this security is given when the party is too poor to find sureties, at the discretion of the court. 4. Aude promissoria, by bare promise: this security is unknown in the admiralty courts of the United States. Hall's Adm. Pr. 12; Dunl. Adm. Pr. 150, 151. See 17 Am. Jur. 51.
STIRPES, descents. The root, stem, or stock of a tree. Figuratively, it signifies, in law, that person from whom a family is descended, and also the kindred or family.
2. It is chiefly used in estimating the several interests of the different kindred, in the distribution of an intestate's estate. 2 Bl. Com. 517 and vide Descent; Line.
STOCK, mer. law. The capital of a merchant tradesman, or other person including his merchandise, money and credits. In a narrower sense it signifies only the goods and wares he has for sale and traffic. The capital of corporations is also called stock; this is usually divided into shares of a definite value, as one hundred dollars, fifty dollars per share.
2. The stock held by individuals in corporations is generally considered as personal property. 4 Dane's Ab. 670; Sull. on Land. Titl. 71; Walk. Introd. 211; 1 Hill, Ab. 1 8.
STOCK, descents. This is a metaphorical expression which designates, in the genealogy of a family, the person from whom others are descended: those persons who have so descended are called branches. Vide 1 Roper on Leg. 103; 2 Suppl. to Ves. 307 and Branch; Descent Line; Stirpes.
STOCKS, crim. law. A machine commonly made of wood, with boles in it, in which to confine persons accused of or guilty of a crime.
2. It was used either to confine unruly offenders by way of security, or convicted criminals for punishment.
3. This barbarous punishment has been generally abandoned in the United States.
STOPPAGE IN TRANSITU, contracts. This is the name of that act of a vendor of goods, upon a credit, who, on learning that the buyer has failed, resumes the possession of the goods, while they are in the hands of a carrier or middle-man, in their transit to the buyer, and before they get, into his actual possession.
2. The subject will be considered with reference to, 1. The person who has a right to stop goods in transitu. 2. The property whicli may be stopped. 3. The time when to be stopped. 4. The, manner of stopping. 5. The failure of the buyer. 6. The effect of stopping.
3. - 1. The right of stopping property in transitu is confined to cases in which the consignor is substantially the seller; and does not extend to a mere surety for the price, nor to any person who does not rest his claim on a proprietor's right. 6 East, R. 371; 4 Burr. 2047; 3 T. R. 119, 783; 1 Bell's Com. 224.
4. - 2. The property stopped must be personal property actually sold or bartered, on a credit. 2 Dall. 180; 1 Yeates, 177.
5. - 3. It must be stopped during the transit, and while something remains to be done to complete the delivery; for the actual or symbolical, delivery of the goods to the buyer puts an end to the right of the seller to stop the goods in transitu; 3 T. R. 464; 8 T. R. 199; but it has been decided that if, before delivery, the seller annex a condition that security, shall be given before taking possession; or that the price shall be paid in ready money; or that a bill shall be delivered; the property will not pass by the mere act of the buyer's attaining the possession. 3 Esp. Rep. 58., When the seller has given the buyer documents sufficient to transfer the property, and the buyer, upon the strength of such documents, has sold the goods to a bona fide purchaser without notice, the seller is divested of his rights 2 W. C. C. R. 283; but a resale by the buyer does not, of itself, and without other circumstances, destroy the vendor's right of stoppage in transitu. 6 Taunt. R. 433 Vide Delivery; and 1 Rawle's R. 9; 1 Ashm. R. 103; Harr. Dig. Sale, III. 4; 7 Taunt. R. 59; 2 Marsh. R. 366; Holt's R. 248; 1 Moore's R. 526; 3 B. & P. 320; Id. 119; 5 East, R. 175.
6. - 4 The manner of stopping the goods is usually by taking corporal possession of them; but this is not the only way it may be done; the seller may put in his claim or demand of his right to the goods either verbally or in writing. 2 B. & P. 257, 462; 2 Esp. R. 613; Co. Bankr. Law, 494; Holt's Cases, N. B. 338. Vide Corporal Touch.
7. - 5. The buyer must have actually failed, or be in actual and immediate danger of insolvency.
8. - 6. The stopping of goods in transitu does not of itself rescind the contract. 1 Atk. 245; Co. B. L. 394; 6 East, R. 27, n. The seller may, therefore, upon offering to deliver them, recover the price. 1 Campb. 109; 6 Taunt. 162. But inasmuch as the seller is permitted in equity to annul the transfer he has made, by stopping the goods on their transit, and by that means to deprive the general creditors of the buyer of property, which, in strict law, has passed to their debtor, it has been considered as equitable, on the other hand, that this act should be accompanied by a rescinding of the whole contract, and a renunciation of any further claim; since it would be a great bardship to give a preference to the seller over, the other creditors; and subject the divisible funds, which have derived no benefit from the contract, to a further claim of indemnification. 1 Bell's Com. B. 2, pt. 3, c. 2, s. 2, §5.
Vide, generally, 2 Kent, Com. 427; Bac. Abr. Merchant, L; Ross on Vend., Index, h. t. Selw. N. P. 1206; Whitaker on Stoppage in Transitu; Abbott on Ship. 351; 3 Chit. Com. Law, 340; Chit. on Contr. 124-126; 2 Com. Dig. 268; 8 Com. Dig. 952; 2 Supp. to Ves. jr. 231, 481; 2 Leigh's N. P. 1472; 1 Bouv. Inst. n. 959-65.
STORES. the victuals and provisions collected together for the subsistence of a ship's company, of a camp, and the like.
STOUTHRIEFF, Scotch law. Formerly this word included in its signification every species of theft, accompanied with violence to the person; but of late years it has become the vox signata for forcible and masterful depredation within or near the dwelling house; while robbery has been more particularly applied to violent depredation on the highway, or accompanied by house-breaking. Alison, Princ. Cr. Law of Scot]. 227.
STOWAGE, mar. law. The proper arrangement in a ship, of the different articles of which a cargo consists, so that they may not injure each other by friction, or be damaged by the leakage of the ship.
2. The master of the ship is bound to attend to the stowage, unless, by custom or agreement, this business is to be performed by persons employed by the mercbant. Abbott on Shipp. 228; Pardes. Dr. Com. n. 721.
STRANDING, maritime law. The running of a ship or other vessel on shore; it is either accidental or voluntary.
2. It is accidental where the ship is driven on, shore by the winds and waves; it is voluntary where she is run on shore, either to preserve her from a worse fate, or for some fraudulent purpose. Marsh. Ins. B. 1, c. 12, s. 1.
3. It is of great consequence to define accurately what shall be deemed a stranding, but this is no easy matter. In one case a ship having run on some wooden piles, four feet under water, erected in Wisheach river, about nine yards from shore, which were placed there to keep up the banks of the river, and having remained on these piles until they were cut away, was considered by Lord Kenyon to have been stranded. Marsh. Ins. B. 7, s. 3 . In another case, a ship arrived in the river Thames, and, upon coming up to the Pool, which was full of vessels, one brig ran foul of her bow, and another of her stern, in consequence of which she was driven aground, and continued in that situation an hour, during which period several other vessels ran foul of her; this, Lord Kenyon told the jury, that unskilled as he was in nautical affairs, he thought he could safely pronounce to be no stranding. lb.; 1 Camp. 131; 3 Camp. 431; 4 M. & S. 503; 7 B. & C. 224; 5 B. & A. 225; 4 B. & C. 736. See Perils of the Sea.
STRANGER, persons, contracts. This word has several significations. 1. A person born out of the United States; but in this sense the term alien is more properly applied, until he becomes naturalized. 2. A person who is not privy to an act or contract; example, he who is a stranger to the issue, shall not take advantage of the verdict. Bro. Ab. Record, pl. 3; Vin. Ab. h. t. pl. 1 and vide Com. Dig. Abatement, H 54.
2. When a man undertakes to do a thing, and a stranger interrupts him, this is no excuse. Com. Dig. Condition, L 14. When a party undertakes that a stranger shall do a certain thing, he becomes liable as soon as the stranger refuses to perform it. Bac. Ab. Conditions, Q 4.
STRATAGEM. A deception either by words or actions, in times of war, in order to obtain an advantage over an enenly.
2. Such stratagems, though contrary to morality, have been justified, unless they have been accompanied by perfidy, injurious to the rights of humanity, as in the example given by Vattel of an English frigate, which during a war between France and England, appeared off Calais and made signals of distress in order to allure some vessel to come to its relief, and seized a shallop and its crew, who had generously gone out to render it assistance. Vattel, Droit des Gens, liv. 3, c. 9, §178.
3. Sometimes stratagems are employed in making, contracts, this is unlawful and fraudulent, and avoids the contract. See Fraud.
STRATOCRACY. A military government; government by military chiefs of an army.
STREAM. A current of water. The right to a water course is not a right in the fluid itself so much as a right in the current of the stream. 2 Bouv. Inst. n. 1612. See River; Water Course.
STREET. A road in a village or city. In common parlance the word street is equivalent to highway. 4 Serg. & Rawle, 108.
2. A permission to the public for the space of eight, or even of six years, to use a street without bar or impediment, is evidence from which a dedication to the public maybe inferred. 11 East, R. 376; See 2 N. Hamp. 513; 4 B. & A. 447; 3 East, R. 294; 1 Law lntell. 134; 2 Smith's Lead. Cas. 94, n.; 2 Pick. R. 162; 2 Verm. R. 480; 5 Taunt. R. 125; S. C. 1 E. C. L. R. 34; 4 Camp. R. 169; 1 Camp. R. 260: 7 B. & C. 257; S. C. 14 E. C. L. R. 39; 5 B & Ald. 454; S. C. 7 E. C. L. R. 159; 1 Blackf. 44; 2 Wend. 472; 8 Wend. 85; 11 Wend. 486; 6 Pet. 431; 1 Paige, 510; and the article Dedication.
STRICT SETTLEMENT. When lands are settled to the parent for life, and after his death to his first and other sons in tail, and trustees are interposed to preserve the contingent remainders, this is called a strict settlement.
STRICTISSIMI JURIS. The most strict right or law. In general, when a person receives an advantage, as the grant of a license, he is bound to conform strictly to the exercise of the rights given him by it, and in case of a dispute, it will be strictly construed. See 3 Story, Rep. 159.
STRICTUM JUS. This phrase is used to denote mere law, in contradistinction to equity.
STRUCK, pleadings. In an indictment for murder, when the death arises from any woundng, beating or bruising, it is said, that the word "struck" is essential. 1 Bulstr. 184; 5 Co. 122; 3 Mod. 202; Cro. Jac. 655; Palm. 282; 2 Hale, 184, 6, 7: Hawk. B. 2, c. 23, s. 82; 1 Chit. Cr. Law, *243 6 Binn. R. 179.
STRUCK JURY. A special jury selected by striking from the pannel of jurors, a certain number by each party, so as to leave a number required by law to try the cause. In general, a list of forty-eight jurors is made out for each case; the plaintiff strikes off twelve, aud the defendant the same number from those who remain twelve are to be selected to try the cause, unless they are challenged for cause. See Challenge.
STRUCK OFF. A case is said to be struck off, where the court has no jurisdiction, aud can give no judgment, and order that the case be taken off the record, which is done by an entry to that effect.
STRUMPET. A harlot, or courtezan: this word was formerly used as an addition. Jacob's Law Dict. h. t.
TO STULTIFY. To make or declare insane. It is a general rule in the English law, that a man shall not be permitted to stultify himself; that is, he shall not be allowed to plead his insanity to avoid a contract. 2 Bl. Com. 291; Fonbl. Eq. b. 1, c. 2, 1; Pow. on Contr. 19.
2. In the United States, this rule seems to have been exploded, and the party may himself avoid his acts except those of record, and contracts for necessaries and services rendered, by allegation and proof of insanity. 5 Whart. R. 371, 379; 2 Kent, Com. 451; 3 Day, R. 90; 3 Conn. R. 203: 5 Pick. R. 431; 5 John R. 503.; 1 Bland. R. 376. Vide Fonbl. Eq b. 1, c. 2, §1, note 1; 2 Str. R. 1104; 3 Camp. R. 125; 7 Dowl. & Ryl. 614; 3 C. & P. 30; 1 Hagg. C. R. 414.
STUPIDITY, med. jur. That state of the mind which cannot perceive and embrace the data presented to it by the senses; and therefore the stupid person can, in general, form no correct judgment. It is a want of the perceptive powers. Ray, Med. Jur. c. 3, §40. Vide Imbecility.
STUPRUM, civ. law. The criminal sexual intercourse which took place between a man and a single woman, maid or widow, who before lived honestly. Inst. 4, 18, 4; Dig. 48, 5, 6; Id. 50, 16, 101; 1 Bouv. Inst. Theolo. ps. 3, quaest. 2, art. 2, p. 252.
SUB-AGENT. A person appointed by an agent to perform some duty, or the whole of the business relating to his agency.
2. Sub-agents may be considered in two points of view. 1. With regard to their rights and duties or obligations, towards their immediate employers. 2. As to their rights and obligations towards their superior or real principals.
3. - 1. A sub-agent is generally invested with the same rights, and incurs the same liabilities in regard to his immediate employers, as if he were the sole and real principal. To this general rule there are some exceptions for example, where by the general usage of trade or the agreement of the parties, sub-agents are ordinarily or necessarily employed, to accomplish the ends of the agency, there, if the agency is avowed, and the credit is exelusively given to the principal, the intermediate agent may be entirely exempted from all liability to the sub-agent. The agent, however, will be liable to the sub-agent, unless such exclusive credit has been given, although the real principal or superior may also be liable. Story on Ag. §386; Paley on Ag. by Lloyd, 49. When the agent employs a sub-agent to do the whole, or any part of the business of the agency, without the knowledge or consent of his principal, either express or implied, the latter will only be entitled to recover from his immediate employer, and his sole responsibility is also to him. In this case the superior or real principal is not responsible to the sub-agent, because there is no privity between them. Story on Ag. §13, 14, 15, 217, 387.
4. - 2. Where by an express or implied agreement of the parties, or by the usages of trade, a sub-agent is to be employed, a privity exists between the principal and the sub-agent, and the latter may justly maintain his claim for compensation, both against the principal and his immediate employer, unless exclusive credit is given to one of them; and, in that case, his remedy is limited to that party. 1 Liv. on Ag. 64; 6 Taunt. R. 147.
SUBALTERN. A kind of officer who exercises his authority under the superintendence and control of a superior.
TO SUBDIVIDE. To divide a part of a thing which has already been divided. For example, when a person dies leaving children, and grandchildren, the children of one of his own who is dead, his property is divided into as many shares as he had children, including the deceased, and the share of the deceased is subdivided into as many shares as he had children.
SUBINFEUDATION, estates, English law. The act of an inferior lord by which he carved out a part of an estate which he held of a superior, and granted it to an inferior tenant to be held of himself.
2. It was an indirect mode of transferring the fief, and resorted to as an artifice to elude the feudal restraint upon alienation: this was forbidden by the statute of Quia Emptores, 18 Ed. I; 2 Bl. Com. 91; 3 Kent, Com. 406.
SUBJECT, contracts. The thing which is the object of an agreement. This term is used in the laws of Scotland.
SUBJECT, persons, government. An individual member of a nation, who is subject to the laws; this term is used in contradistiction to citizen, which is applied to the same individual when considering his political rights.
2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. §286; Phil. & Am. on Ev. 732, n. 1.
SUBJECT-MATTER. The cause, the object, the thing in dispute.
2. It is a fatal objection to the jurisdiction of the court when it has not cognizance of the subject-matter of the action; as, if a cause exclusively of admiralty jurisdiction were brought in a court of common law, or a criminal proceeding in a court having jurisdiction of civil cases only. 10 Co. 68, 76 1 Ventr. 133; 8 Mass. 87; 12 Mass. 367. In such case, neither a plea to the jurisdiction, nor any other plea would be required to oust the court of jurisdiction. The cause might be dismissed upon motion, by the court, ex officio.
SUBJECTION. The obligation of one or more persons to act at the discretion, or according to the judgment and will of others.
2. Subjection is either private or public. By the former is meant the subjection to the authority of private persons; as, of children to their parents, of apprentices to their masters, and the like. By the latter is understood the subjection to the authority of public persons. Rutherf. Inst. B. 2, c. 8.
SUBLEASE. A lease by a tenant to another tenant of a part of the premises held by him; an underlease.
SUBMISSION. A yielding to authority. A citizen is bound to submit to the laws; a child to his parents; a servant to his master. A victor may enforce, the submission of his enemy.
2. When a captor has taken a prize, and the vanquished have submitted to his authority, the property, as between the belligerents, has been transferred. When there is complete possession on one side, and submission upon the other, the capture is complete. 1 Gallis. R. 532.
SUBMISSION, contracts. An agreement by which persons who have a law-suit or difference with one another, name arbitrators to decide the matter, and bind themselves reciprocally to perform what shall be arbitrated.
2. The submission may be by the act of the parties simply, or through the medium of a court of law or equity. When it is made by the parties alone it may be in writing or not in writing. Kyd on Aw. 11; Caldw. on Arb. 16; 6 Watts' R. 357. When it is made through the medium of a court, it is made a matter of record by rule of court. The extent of the submission may be various, according to the pleasure of the parties; it may be of only one, or of all civil matters in dispute, but no criminal matter can be referred. It is usual to put in a time within which the arbitrators shall pronounce their award. Caldw. on Arb. ch. 3; Kyd on Awards, ch. 1; Civ. Code of Lo. tit. 19 3 Vin. Ab. 131; 1 Supp. to Ves. jr. 174; 6 Toull. n. 827; 8 Toull. n. 332; Merl. Repert. mot Compromis; 1 S. & R. 24; 5 S. & R. 51; 8 S. & R. 9; 1 Dall. 164; 6 Watts, R. 134; 7 Watts, R. 362; 6 Binn. 333, 422; 2 Miles, R, 169; 3 Bouv. Inst. n. 2483, et seq.
SUB MODO. Under a qualification; a legacy may be given sub modo, that is, subject to a condition or qualification.
SUBNOTATIONS, civ. law. The answers of the prince to questions which had been put to him respecting some obscure or doubtful point of law. Vide Rescripts.
SUBORNATION OF PERJURY, crim. law. The procuring another to commit legal perjury, who in consequence of the persuasion takes the oath to which be has been incited. Hawk. B. 1, c. 69, s. 10.
2. To complete the offence, the false oath must be actually taken, and no abortive attempt (q. v.) to solicit will complete the crime. Vide To Dissuade; To persuade.
3. But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law. 2 East, Rep. 17; 6 East, R. 464; 2 Chit. Crim. Law, 317; 20 Vin. Ab. 20. For a form of an indictment for an attempt to suborn a person to commit perjury, vide 2 Chit. Cr. Law, 480; Vin. Ab. h. t.
4. The act of congress of March 3, 1825, §13, provides, that if any person shall knowingly or wilfully procure any such perjury, mentioned in the act, to be committed, every such person so offending, shall be guilty of subornation of perjury, and shall, on conviction thereof, be punished by fine, not exceeding two thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years, according to the aggravation of the offence.
SUBPOENA, practice, evidence. A process to cause a witness to appear and give testimony, commanding him to lay aside all pretences and excuses, and appear before a court or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. This is usually called a subpoena ad testificandum.
2. On proof of service of a subpoena upon the witness, and that he, is material, an attachment way be issued against him for a contempt, if he neglect to attend as commanded.
SUBPOENA, chancery practice. A mandatory writ or process, directed to and requiring one or more persons to appear at a time to come, and answer the matters charged against him or them; the writ of subpoena was originally a process in the courts of common law, to enforce the attendance of a witness to give evidence; but this writ was used in the court of chancery for the game purpose as a citation in the courts of civil and canon law, to compel the appearance of a defendant, and to oblige him to answer upon oath the allegations of the plaintiff.
2. This writ was invented by John Waltham, bishop of Salishury, and chancellor to Rich. II. under the authority of the statutes of Westminster 2, and 13 Edw. I. c. 34, which enabled him to devise new writs. 1 Harr. Prac. 154; Cruise, Dig. t. 11, c. 1, sect. 12-17. Vide Vin. Ab. h. t.; 1 Swanst. Rep. 209.
SUBPOENA DUCES TECUM, practice. A writ or process of the same kind as the subpoena ad testificandum, including a clause requiring the witness to bring with him and produce to the court, books, papers, &c., in his hands, tending to elucidate the matter in issue. 3 Bl. Com. 382.
SUB PEDE SIGILLI. Under the foot of the seal; under seal. This expression is used when it is required that a record should be certified under the seal of the court.
SUB POTESTATE. Under or subject to the power of another; as, a wife is under the power of her hushand; a child subject to that of his father; a slave to that of his master.
SUBREPTION, French law. By this word is understood the fraud committed to obtain a pardon, title, or grant, by alleging facts contrary to truth.
SUBROGATION, civil law, contracts. The act of putting by a transfer, a person in the place of another, or a thing in the place of another thing. It is the substitution (q. v.) of a new for an old creditor, and the succession to his rights, which is called subrogation; transfusio unius creditoris in alium. It is precisely the reverse of delegation. (q. v.)
2. There are three kinds of subrogation: 1. That made by the owner of a thing of his own free will; example, when be voluntarily assigns it. 2. That which arises in consequence of the law, even without the consent of the owner; example, when a man pays a debt which could not be properly called his own, but which nevertheless it was his interest to pay, or which he might have been compelled to pay for another, the law subrogates him to all the rights of the creditor. Vide 2 Binn. Rep. 382; White's L. C. in Eq.* 60-72. 3. That which arises by the act of law joined to the act of the debtor; as, when the debtor borrows money expressly to pay off his debt, and with the intention of substituting the lender in the place of the old creditor. 7 Toull. liv. 3, t. 3, c. 5, sect. 1, §2. Vide Civ. Code of Louisiana, art. 2155 to 2158; Merl. Repert. h. t.; Dig. lib. 20; Code, lib. 8, t. 18 et 19 9 Watts. R. 451; 6 Watts & Serg. 190; 2 Bouv. Inst. n. 1413.
SUBSCRIBING WITNESS. One who subscribes his name to a writing in order to be able at a future time to prove its due execution; an attesting witness.
2. In order to make a good subscribing witness, it is requisite he Should sign his name to the instrument himself, at the time of its execution, and at the request or with the assent of the party. 6 Hill, N. Y. R. 303; 11 M. & W. 168; 1 Greenl. Ev. §569 a, 4th ed. See Witness instrumentary; 5 Watts, 399.
SUBSCRIPTION, contracts. The placing a signature at the bottom of a written or printed engagement; or it is the attestation of a witness by so writing his name; but it has been holden that the attestation of an illiterate witness, by making his mark, is a sufficient subscription. 7 Bing. 457; 2 Ves. 454; Atk. 177; 1 Yes. jr. 11; 3 P. Wms. 253; 1 V. & B. 362. Vide To sign.
2. By subscription is also understood the act by which a person contracts, in writing, to furnish a sum of money for a particular purpose; as, a subscription to a charitable institution, a subscription for a book, for a newspaper, and the like.
SUBSCRIPTION LIST. The names of persons who have agreed to take a newspaper, magazine or other publication, placed upon paper, is a subscription list.
2. This is, an incident to a newspaper, and passes with the sale of the printing materials. 2 Watts, 111.
SUBSIDY, Engl. law. An aid, tax or tribute granted by parliament to the king for the urgent occasions of the kingdom, to be levied on every subject of ability, according to the value of his lands or goods. Jacob's Law. Dict. h. t.
2. The assistance given in money by one nation to another to enable it the better to carry on a war, when such nation does not join directly in the war, is called a subsidy. Vattel, liv. 3, §82. See Neutrality.
SUB SILENTIO. Under silence, without any notice being taken. Sometimes passing a thing sub silentio is evidence of consent. See Silence.
SUBSTANCE, evidence. That which is essential; it is used in opposition to form.
2. It is a general rule, that on any issue it is sufficient to prove the substance of the issue. For example, in a case where the defendant pleaded payment of the principal sum and all interest due, and it appeared in evidence that a gross sum was paid, not amounting to the full interest, but accepted by the plaintiff as full payment, the proof was held to be sufficient. 2 Str. 690; 1 Phil. Ev. 161.
SUBSTITUTE, contracts. One placed under another to transact business for him; in letters of attorney, power is generally given to the attorney to nominate and appoint a substitute.
2. Without such power, the authority given to one person cannot in general be delegated to another, because it is a personal trust and confidence, and is not therefore transmissible. The authority is given to him to exercise his judgment and discretion, and it cannot be said that the trust and confidence reposed in him shall be exercised at the discretion of another. 2 Atk. 88; 2 Ves. 645. But an authority may be delegated to another, when the attorney has express power to do so. Bunb. 166; T. Jones, 110. See Story, Ag. §§13, 14. When a man is drawn in the militia, he may in some cases hire a substitute.
SUBSTITUTES, Scotch law. Where an estate is settled on a long series of heirs, substituted one after another, in tailzie, the person first called in the tailzies, is the institute; the rest, the beirs of tailzie; or the substitutes. Ersk. Princ. L. Scotl. 3, 8, 8. See Tailzie; Institute.
SUBSTITUTION, civil law. In the law of devises, it is the putting of one person in the place of another, so that he may, in default of ability in the former, or after him, have the benefit of a devise or legacy.
2. It is a species of subrogation made in two different ways; the first is direct substitution, and the latter a trust or fidei commissary substitution. The first or direct substitution, is merely the institution of a second legatee, in case the first should be either incapable or unwilling to accept the legacy; for example, if a testator should give to Peter his estate, but in case he cannot legally receive it, or he wilfully refuses it, then I give it to Paul; this is a direct substitution. Fidei commissary substitution is that which takes place when the person substituted is not to receive the legacy until after the first legatee, and consequently must receive the thing bequeathed from the hands of the latter for example, I institute Peter my heir, and I request that at his death he shall deliver my succession to Paul. Merl. Repert. h. t.; 5 Toull. 14.
SUBSTITUTION, chancery practice. This takes place in a case where a creditor has a lien on two different parcels of land, and another creditor has a subsequent lien on one only of the parcels, and the prior creditor elects to have his whole demand out of the parcel of land on which the subsequent creditor takes his lien; the latter is entitled, by way of substitution, to have the prior lien assigned to him for his benefit. 1 Johns. Ch. R. 409; 2 Hawk's Rep. 623; 2 Mason, R. 342. And in a case where a bond creditor exacts the whole of the debt from one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and securities, as if be were a purchaser, either against the principal or his co-sureties. Id. 413; 1 Paige's R. 185; 7 John. Ch. Rep. 211; 10 Watts, R. 148.
2. A surety on paying the debt is entitled to stand in the place of the cre-ditor and to be subrogated to all his rights against the principal. 2 Johns. Ch. R. 454. 4 Johns. Ch. R. 123; 1 Edw. R. 164; 7 John. R. 584; 3 Paige's R. 117; 2 Call, R. 125; 2 Yerg. R. 346; 1 Gill & John. 346; 6 Rand. R. 98,; 8 Watts, R. 384. In Pennsylvania it is provided by act of assembly, that in all cases where a constable shall be entrusted with the execution of any process for the collection of money, and by neglect of duty shall fail to collect the same, by means whereof the bail or security of such constable shall be compelled to pay the amount of any judgment shall vest in the person paying, as aforesaid, the equitable interest in such judgment, and the amount due upon any such judgment may be collected in the name of the plaintiff for the use of such person. Pamphlet Laws, 1828-29, p. 370. Vide 2 Binn. R. 382, and Subrogation.
SUBSTRACTION, French law. The act of taking something fraudulently; it is generally applied to the taking of the goods of the estate of a deceased person fraudulently. Vide Expilation.
SUB-TENANT. The same as under-tenant. See Under-leaser; Under-tenant, and 1 Bell's Com. 76.
SUBTRACTION. The act of withhold ing or detaining anything unlawfully.
SUBTRACTION OP CONJUGAL RIGHTS. The act of a hushand or wife by living separately from the other without a lawful cause. 3 Bl. Com. 94.
SUCCESSION, in Louisiana. The right and transmission of the rights an obligations of the deceased to his heirs. Succession signifies also the estate, rights and charges which a person leaves after his death, whether the property exceed the charges, or the charges exceed the property, or whether he has left only charges without property. The succession not only includes the rights and obligations of the deceased, as they exist at the time of his death, but all that has accrued thereto since the opening of the succession, as also of the new charges to which it becomes subject. Finally, succession signifies also that right by which the beir can take possession of the estate of the de-ceased, such as it may be.
2. There are three sorts of successions, to wit: testamentary succession; legal succession; and, irregular succession. 1. Testamentary succession is that which results from the constitution of the heir, contained in a testament executed in the form prescribed by law. 2. Legal succession is that which is established in favor of the nearest relations of the deceased. 3. Irregular succession is that which is established by law in favor of certain persons or of the state in default of heirs either legal or instituted by testament. Civ. Code, art. 867-874.
3. The lines of a regular succession are divided into three, which rank among themselves in the following order: 1. Descendants. 2. Ascendants. 3. Collaterals. See Descent. Vide Poth. Traite des Successions lbid. Coutumes d'Orleans, tit. 17 Ayl. Pand. 348; Toull. liv. 3, tit. 1; Domat, h. t.; Merl. Repert. h. t.
SUCCESSION, com. law. The mode by which one set of persons, members of a corporation aggregate, acquire the rights of another set which preceded them. This term in strictness is to be applied only to such corporations. 2 Bl. Com. 430.
SUCCESSOR. One who follows or comes into the place of another.
2. This term is applied more particularly to a sole co6-oration, or to any corporation. The word beir is more correctly applicable to a common person who takes an estate by descent. 12 Pick. R. 322; Co. Litt. 8 b.
3. It is also used to designate a person who has been appointed or elected to some office, after another person.
TO SUE. To prosecute or commence legal proceedings for the purpose of recovering a right.
SUFFRAGE, government. Vote; the act of voting.
2. The right of suffrage is given by the constitution of the United States, art. 1, s. 2, to the electors in each state, as shall have the qualifications requisite for electors of the most numerous branch of the state legislature. Vide 2 Story on the Const. §578, et seq.; Amer. Citiz. 201; 1 Bl. Com. 171; 2 Wils. Lect. 130; Montesq. Esp. des Lois, Ii v. 11, c. 6; 1 Tucker's Bl. Com. App. 52, 3. See Division of opinion.
SUFFRANCE. The permitting a tenant who came in by a lawful title, to remain after his right has expired. Vide Estates at suffrance.
SUGGESTIO FALSI. A statement of a falsehood. This amounts to a fraud when-ever the party making it was bound to disclose the truth.
2. The following is an example of a case where chancery will interfere and. set aside a contract as fraudulent, on account of the suggestio falsi: a purchaser applied to the seller to purchase a lot of wild land, and represented to him it was worth nothing, except for a sheep pasture, when he knew there was a valuable mine on the lot, of which the seller was ignorant. The sale was set aside. 2 Paige, 390; 4 Bouv. Inst. n. 3837, et seq. Vide Concealment; Misrepresentation; Representation; Suppressio veri.
SUGGESTION. In its literal sense this word signifies to inform, to insin-uate, to instruct, to cause to be remembered, to counsel. In practice it is used to convey the idea of information; as, the defendant suggests the death of one of the plaintiffs. 2 Sell. Pr. 191.
2. In wills, when suggestions are made to a testator for the purpose of procuring a devise of his property in a particular way, and when such suggestions are false, they generally amount to a fraud. Bac. Ab. Wills, G 3; 5 Toull. n. 706.
SUGGESTIVE INTERROGATION. This phrase has been used by some writers to signify the same thing as leading question. (q. v.) 2 Benth. on Ev. b. 3, c. 3. It is used in the French law. Vide Question.
SUI JURIS. One who has all the rights to which a freemen is entitled; one who is not under the power of another, as a slave, a minor, and the like.
2. To make a valid contract, a person must, in general, be sui juris. Every one of full age is presumed to be sui juris. Story on Ag. p. 10.
SUICIDE, crimes, med. jur. The act of malicious self-murder; felo de se. (q. v.) 3 Man. Gran. & Scott, 437, 457, 458; 1 Hale, P. C.. 441. But it has been decided in England that where a man's life was insured, and the policy contained a proviso that "every policy effected by a person on his or her own life should be void, if such person should commit suicide, or die by duelling or the hands of justice," the terms of the condition included all acts of voluntary self-destruction, whether the insured at the time such act was committed, was or was not a moral responsible agent. 3 Man. Gr. & Scott, 437. In New York it has been held, that an insane person cannot commit suicide, because. such person has no will. 4 Hill' 3 R. 75.
2. It is not punishable it is believed in any of the United States, as the unfortunate object of this offence is beyond the reach of human tribunals, and to deprive his family of the property he leaves would be unjust.
3. In cases of sudden death, it is of great consequence to ascertain, on finding the body, whether the deceased has been murdered, died suddenly of a natural death, or whether he has committed suicide. By a careful examination of the position of the body, and of the circumstances attending it, it can be generally ascertained whether the deceased committed suicide, was murdered, or died a natural death. But there are sometimes cases of suicide which can scarcely be distinguished from those of murder. A case of suicide is mentioned by Doctor Devergie, (Annales d'Hygiene, transcribed by Trebuchet, Jurisprudence de la Medecine, p. 40,) which bears a striking analogy to a murder. The individuul went to the cemetery of Pere la Chaise, near Paris, and with a razor inflicted a wound on himself immediately below the os hyoide; the first blow penetrated eleven lines in depth; a second, in the wound made by the first, pushed the instrument to the depth of twenty-one lines; a third extended as far as the posterior of the pharynx, cutting the muscles which attached the tongue to the oshyoide, and made a wound of two inches in depth. Imagine an enormous wound, immediately under the chin, two inches in depth, and three inches and three lines in width, and a foot in circumference; and then judge whether such wound could not be easily mistaken as having been made by a stranger, and not by the deceased. Vide Death, and 1 Briand, Med. Leg. 2e partie, c. 1, art. 6.
SUIT. An action. The word suit in the 25th section of the judiciary act of 1789, applies to any proceeding in a court of justice, in which the plaintiff pursues, in such court, the remedy which the law affords him. An application for a prohibition is therefore a suit. 2 Pet. 449. According to the code of practice of Louisiana, art. 96, a suit is a real, personal or mixed demand, made before a competent judge, by which the parties pray to obtain their rights, and a decision of their disputes. In that acceptation, the words suit, process and cause, are in that state almost synonymous. Vide Secta, and Steph. Pl. 427; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399; Wood's Civ. Law, b. 4, c. p. 315; 4 Mass. 263; 18 John. 14; 4 Watts, R. 154; 3 Story, Const. §1719. In its most extended sense, the word suit, includes not only a civil action, but also a criminal prosecution, as indictment, information, and a conviction by a magistrate. Ham. N. P. 270.
SUITE. Those persons, who by his authority, follow or attend an ambassador or other public minister.
2. In general the suite of a minister are protected from arrest, and the inviolability of his person is communicated to those who form his suite. Vattel, lib. 4, c. 9, §120. See 1 Dall. 177; Baldw. 240; and Ambassador.
SUITOR. One who is a party to a suit or action in court. One who is a party to an action. In its ancient sense, suitor meant one Who was bound to attend the county court, also, one who formed part of the secta. (q. v.)
SULTAN. The title of the Turkish sovereign and other Mabometan princes.
SUMMARY PROCEEDINGS. When cases are-to be adjudged promptly, without any unnecessary form, the proceedings are said to be summary.
2. In no case can the party be tried summarily unless when such proceedings are authorized by legislative autliority, except perhaps in the cases of contempts, for the common law is a stranger to such a mode of trial. 4 Bl. Com. 280; 20 Vin. Ab. 42; Boscawen on Conv.; Paley on Convict.; vide Convictions.
SUMMING UP, practice. The act of making a speech before a court and jury, after all the evidence has been heard, in favor of one of the parties in the cause, is called summing up. When the judge delivers his charge to the jury, he is also said to sum up the evidence in the case. 6 Harg. St. Tr. 832; 1 Chit. Cr. Law, 632.
2. In summing up, the judge should, with much precision and clearness, state the issues joined between the parties, and what the jury are required to find, either in the affirmative or negative. He should then state the substance of the plaintiff's claim and of the defendant's ground of defence, and so much of the evidence as is adduced for each party, pointing out as he proceeds, to which particular question or issue it respectively applies, taking care to abstain as much as possible from giving an opinion as to the facts. It is his duty clearly to state the law arising in the case in such terms as to leave no doubt as to his meaning, both for the purpose of directing the jury, and with a view of correcting, on a review of the case on a motion for a new trial, or on a writ of error, any error he may, in the hurry of the trial, have committed. Vide 8 S. & R. 150; 1 S. & R. 515; 4 Rawle, R. 100, 195, 356; 2 Penna. R. 27; 2 S. & R. 464. Vide Charge; Opinion, (Judgment.)
TO SUMMON, practice. The act by which a defendant is notified by a compepetent officer, that an action has been instituted against him, and that he is required to answer to it at a time and place named. This is done either by giving the defendant a copy of the summons, or leaving it at his house; or by reading the summons to him.
SUMMONERS. Petty officers who cite men to appear in any court.
SUMMONS, practice. The name of a writ commanding the sheriff, or other authorized officer, to notify a party to appear in court to answer a complaint made against him and in the said writ specified, on a day therein mentioned. 21 Vin. Ab. 42 2 Sell. Pr. 356; 3 Bl. Com. 279.
SUMMONS AND SEVERANCE. Vide Severance; and 20 Vin. Ab. 51; Bac. Ab. h. t.; Archb. Civil Plead. 59.
SUMMUM JUS. Extreme right, strict right. It is seldom that extreme right can be administered without the danger of doing injustice, for extreme right may produce extreme wrong. Summum jus, summa injuria.
SUMPTUARY LAWS. Those relating to expenses, and made to restrain excess in apparel.
2. In the United States the expenses of every man are left to his own good judgment, and not regulated by Arbitrary laws.
SUNDAY. The first day of the week.
2. In some of the New England states it begins at sun setting on Saturday, and ends at the same time the next day. But in other parts of the United States, it generally commences at twelve o'clock on the night between Saturday and Sunday, and ends in twenty-four hours thereafter. 6, Gill. & John. 268; and vide Bac. Ab. Heresy, &c. D; Id. Sheriff, N 4; 1 Salk. 78; 1 Sell. Pr. 12; Hamm. N. P. 140. The Sabbath, the Lord's Day, and Sunday, all mean the same thing. 6 Gill. & John. 268; see 6 Watts, 231; 3 Watts, 56, 59.
2. In some states, owing to statutory provisions, contracts made on Sunday are void; 6 Watts, R. 231; Leigh, N. P. 14; 1 P. A. Browne, 171; 5 B. & C. 406; 4 Bing. 84; but in general they are binding, although made on that day, if good in other respects. 1 Crompt. & Jervis, 130; 3 Law Intell. 210; Chit. on Bills, 59; Wright's R. 764;,10 Mass. 312 1 Cowen, R. 76, n.; Cowp. 640; 1 Bl. Rep. 499; 1 Str. 702; see 8 Cowen, R. 27; 6 Penn. St. R. 417, 420.
4. Sundays are computed in the time allowed for the performance of an act, but if the last day happen to be a Sunday, it is to be excluded, and the act must in general be performed on Saturday; 3 Penna. R. 201; 3 Chit. Pr. 110; promissory notes and bills of exchange, when they fall due on Sunday, are gen-erally paid on Saturday. See, as to the origin of keeping-Sunday as a holiday, Neale's F. & F. Index, Lord's day; Story on Pr. Notes, §220; Story on Bills, §233; 2 Hill's N. Y. Rep. 587; 2 Applet. R. 264.
SUPER ALTUM MARE. Upon the high sea. Vide High Seas.
SUPER VISUM CORPORE. Upon view of the body. When an inquest is held over a body found dead, it must be super visum corpore. Vide Coroner; Inquest.
SUPERCARGO, mar. law. A person specially employed by the owner of a cargo to take charge of the merchandise which has been shipped, to sell it to the best advantage, and to purchase returning cargoes and to receive freight, as he may be authorized.
2. Supercargoes have complete control over the cargo, and everything which immediately concerns it, unless their authority is either expressly or impliedly restrained. 12 East, R. 381. Under certain circumstances, they are responsible for the cargo; 4 Mass. 115; see 1 Gill & John. 1; but the supercargo has no power to interfere with the government of the ship. 3 Pardes. n. 646; 1 Boulay-Paty, Dr. Com. 421.
SUPERFOETATION, med. jur. The conception of a second embryo, during the gestation of the first, or the conception of a child by a woman already pregnant with another, during the time of such pregnancy.
2. This doctrine, though doubted, seems to be established by numerous cases. Beck's Med. Jur. 193; Cassan on Superfoetation; New York Medical Repository; 1 Briand, Med. Leg. prem. partie, c. 3, art. 4; 1 Fodere, Med. Leg. §299; Buffon, Hist. Nat. de l'Homme, Puberte.
SUPERFICIARIUS, civ. law. He who has built upon the soil of another, which he has hired for a number of years or forever, yielding a yearly rent. This is not very different from the owner of a lot on ground rent in Pennsylvania. Dig. 43, 18, 1 and 2.
SUPERFICIES. A Latin word used among civilians. It signifies in the edict of the praetor whatever has been erected on the soil, quidquid solo inoedificdtum est. Vide Dig. 43, tit. 18, 1. 1 and 2.
SUPERIOR. One who has a right to command; one who holds a superior rank; as, a soldier is bound to obey his superior. 2. In estates, some are superior to others; an estate entitled to a servitude or easement over another estate, is called the superior or dominant, and the other the inferior or servient estate. 1 Bouv. Inst. n. 1612.
3. Of courts, some are supreme or superior, possessing in -general appellate jurisdiction, either by writ of error or by appeal; 3 Bouv. Inst. n. 2527; the others are called inferior courts.
SUPERNUMERARII, Rom. civil law. From the reign of Constantine to Justinian, advocates were divided into two classes: viz. advocates in title, who were called statute, and supernumeraries. The statutis were inscribed in the mat-riculation books, and formed a part of the college of advocates in each jurisdiction. The supernumeraries were not attached to any bar in particular, and could reside where, they pleased; they took the place of advocates by title, as vacancies occurred in that body. Code Justin., de adv. div. jud. c. 3, 11, 13; Calvini Lex, ad voc.; also Statuti.
SUPERSEDEAS, practice, actions. The name of a writ containing a command to stay the proceedings at law.
2. It is granted on good cause shown that the party ought not to proceed. F. N. B. 236. There are some writs which though they do not bear this name have the effect to supersede the proceedings, namely, a writ of error, when bail is entered, operates as a supersedeas, and a writ of certiorari to remove the proceedings of an inferior into a superior court has, in general, the same effect. 8 Mod. 373; 1 Barnes, 260; 6 Binn. R. 461. But, under special circumstances, the certiorari has not the effect to stay the proceedings, particularly where summary proceedings, as to obtain possession under the landlord and tenant law, are given by statute. 6 Binn. R. 460; 1 Yeates, R. 49; 4 Dall. R. 214; 1 Ashm. R. 230; Vide Vin. Ab. h. t.; Bac. Ab. h. t.; Com. Dig. h. t.; Yelv. R. 6, note.
SUPERSTITIOUS USE, English law. When lands, tenements, rents, goods or chattels are given, secured or appointed for and toward the maintenance of a priest or chaplain to say mass; for the maintenance of a priest, or other man, to pray for the soul of any dead man, in such a church or elsewhere; to have and maintain perpetual obits, lamps, torches, &c., to be used at certain times to help to save the souls of men out of purgatory; in such cases the king by force of several statutes, is authorized to direct and appoint all such uses to such purposes as are truly charitable. Bac. Ab. Charitable Uses and Mortmain, D; Duke on Char. Uses, 105; 6 Ves. 567; 4 Co. 104.
2. In the United States, where all religious opinions are free, and the right to exercise them is secured to the people, a bequest to support a catholic priest, aud perhaps certain other uses in England, would not in this country be considered as superstitious uses. 1 Pa. R. 49; 8 Penn. St. R. 327; 17 S. & R. 388; 1 Wash. 224. It is not easy to see how there can be a supersti-tious use in this country, at least in the acceptation of the British courts. 1 Watts, 224; 4 Bouv. Inst. n. 3985.
SUPERVISOR. An overseer; a surveyor.
2. There are officers who bear this name whose duty it is to take care of the highways.
SUPPLEMENTAL. That which is added to a thing to complete it as a supplemental affidavit, which is an additional affidavit to make out a case; a supplemental bill. (q. v.)
SUPPLEMENTAL BILL, equity plead. A bill already filed to supply some defect in the original bill. See Bill supplemental.
SUPPLICAVIT, Eng. law. The name of a writ issuing out of the king's bench or chancery, for taking sureties of the peace; it is commonly directed to the justices of the peace, when they are averse to acting in the affair in their judicial capacity. 4 Bl. Com. 233; vide Vin. Ab. h, t.; Com. Dig. Chancery, 4 R.; Id. Forcible Entry, D 16, 17.
SUPPLICIUM, civil law. A corporal punishment ordained by law; the punishment of death, so called because it was customary to accompany the guilty man to the place of execution and there offer supplications for him.
SUPPLIES, Eng. Law. Extraordinary grants to the king by parliament, to supply the exigencies of the state. Jacob's Law Dict. h. t.
SUPPORT. The right of support is an easement which one man, either by contract or prescription, enjoys, to rest the joists or timbers of his house upon the wall of an adjoining building, owned by another person. 3 Kent, Com. 435. Vide Lois des Bat. part. 1, c. 3, s. a. 1, §T; Party wall.
SUPPRESSIO VERI. Cocealment of truth.
2. In general a suppression of the truth, when a party is bound to disclose it, vitiates a contract. In the contract of insurance a knowledge of the facts is required to enable the underwriter to calculate the chances and form a due estimate of the risk; and, in this contract perhaps more than any other, the parties are required to represent every thing with fairness. 1 Bla. Rep. 594; 3 Burr. 1809.
3. Suppressio veri as well as suggestio falsi is a ground to rescind an agreement, or at least not to carry it into execution. 3 Atk. 383; Prec. Ch. 138; 1 Fonb. Eq. c. 2, s. 8; 1 Ball & Beatty, 241; 3 Munf. 232 1 Pet. 383; 2 Paige, 390 4 Bouv. Inst. n. 3841. Vide Concealment; Mis-representation; Representationl: Suggestio falsi.
SUPRA PROTEST. Under protest. Vide Acceptance supra protest; dcceptor supra protest; Bills of Exchange.
SUPREMACY. Sovereign dominion, authority, and preeminence; the highest state. In the United States, the supremacy resides in the people, and is exercises by their constitutional representatives, the president and congress. Vide Sovereignty.
SUPREME. That which is superior to all other things; as the supreme power of the state, which is an authority over all others. The supreme court, which is superior to all other courts.
SUPREME COURT. The court of the highest jurisdiction in the United States, having appellate jurisdiction over all the other courts of the United. States, is so called. Its powers are examined under the article Courts of the United States.
2. The following list of the judges who have had seats on the bench of this court is given for the purpose of reference.
Chief Justices. John Jay, appointed September 26, 1789, resigned in 1795.
John Rutledge, appointed July 1, 1795, resigned in 1796.
Oliver Ellsworth, appointed March 4, 1796, resigned in 1801.
John Marshall, appointed January 31, 1801, died July 6, 1835.
Roger B. Taney, appointed March 15, 1836. Associate Justices.
William Cushing, appointed September 27, 1789, died in 1811.
James Wilson, appoiuted September 29, 1789, died in 1798.
John Blair, appointed September 30, 1789, died in 1796.
James Iredell, appointed February 10, 1790, died in 1799.
Thomas Johnson, appointed November 7, 1791, resigned in 1793.
William Patterson, appointed March 4, 1793, in the place of Judge Johnson, died in 1806.
Samuel Chase, appointed January 7, 1796, in the place of Judge Blair, died in 1811.
Bushrod Washington, appointed December 20,1798, in the place of Judge Wilson, died November 26, 1829.
Alfred Moore, appointed December 10, 1799 in the place of Judge Iredell, resigned in 1864.
William Johnson, appointed March 6, 1804, in the place of Judge Moore, died in 1835.
Brockholst Livingston, appointed November 10, 1806, in the place of Judge Patterson, died in 1823.
Thomas Todd, appointed March 3, 1807, under the act of congress of February, 1807, providing for an additional justice, died in 1826.
Gabriel Duval, appointed November 18, 1811, in the place of Judge Chase, resigned in January, 1835.
Joseph Story, appointed November 18, 1811, in the place of Judge Cushing. Smith Thompson, appointed December 9, 1823, in the place of, Judge Livingston, deceased.
Robert Trimble, appointed May 9, 1826, in the place of Judge Todd, died in 1829.
John McLean, appointed March 1829, in the place of Judge Trimble, deceased.
Henry Baldwin, appointed January 1830, in the place of Judge Washington, deceased.
James M. Wayne, appointed January 9, 1835, in the place of Judge Johnson, deceased.
Philip P. Barbour, appointed March 15, 1836, died February 25,1841.
John Catron, appointed March 8, 1837, under the act of congress providing for two additional judges.
John McKinley, appointed September 25, 1837, under the last mentioned act.
Peter V. Daniel, appointed March 3, 1841, in the place of Judge Barbour, deceased.
Samuel Nelson, appointed February 14, 1845, in the place of Judge Thompson, deceased.
Levi Woodbury, appointed September 20, 1845, in the recess of senate, in the place of Judge Story, deceased: his nomination confirmed January 3, 1846.
Robert C. Grier, appointed August 4, 1846, in the place of Judge Baldwin, deceased.
Benj. Robbins Curtis, appointed 1851, in the recess of the senate, in the place of Judge Woodbury, deceased: his nomination confirmed
The present judges of the supreme court are,
Chief Justice. Roger B. Taney. Associate Justices. John McLean, James M. Wayne, John Catron, John McKinley, Peter V. Daniel, Samuel Nelson, Robert C. Grier, and B. Robbins Curtis.
3. In the several states there are also supreme courts; their powers aud jurisdiction will be found under the names of the several states.
SUR. A French word which signifies upon, on. It is very frequently used in connexion with other words as, sur rule to take deposition, sur trover and conversion, and the like.
SUR CUI ANTE DIVORTIUM. The name of a writ issued in favor of the heir of the wife, where the hushand alienated the wife's lands, during the coverture, and afterwards they were divorced and she died, to recover the lands from the alienee. Vide Cui ante divortium.
SURCHARGE, chancery practice. When a bill is filed to open an account, stated, liberty is sometimes given to the plaintiff to surcharge and falsify such account. That is, to examine not only errors of fact, but errors of law. 2 Atk. 112; 11 Wheat. 237; 2 Ves. 565.
2. "These terms, `surcharge,' and `falsify,'" says Mr. Justice Story, 1 Eq. Jur. §525, "have a distinct sense in the vocabulary of courts of equity, a little removed from that, which they bear in the ordinary language of common life. In the language of common life, we understand `surcharge' to import an overcharge in quantity, or price, or degree, beyond what is just and reasonable. In this sense, it is nearly equivalent to `falsify;' for every item, which is not truly charged, as it should be, is false; and by establishing such overcharge it is falsified. But, in the sense of courts of equity, these words are used in contradistinction to each other. A surcharge is appropriately applied to the balance of the whole account; and supposes credits to be omitted, which ought to be allowed. A falsification applies to some item in the debets; and supposes, that the item is wholly false, or in some part erroneous. This distinction is taken notice of by Lord Hardwicke; and the words used by him are so clear, that they supersede all necessity for farther commentary. `Upon a liberty to the plaintiff to surcharge, and falsify,' says he, `the onus probandi is always on the party having that liberty; for the court takes it as a stated account, and establishes it. But, if any of the parties can show an omission, for which credit ought to be, that is, a surcharge, or if anything is inserted, that is a wrong charge, he is at liberty to show it, aud that is a falsification. But that must be by proof on his side. And that makes a great difference between the general cases of an open account, and were only [leave] to surcharge and falsify; for such must be made out."
SURETY, contracts. A person who binds himself for the payment of a sum of money or for the performance of something else, for another, who is already bound for the same. A surety differs from a guarantor, and the latter cannot be sued until after a suit against the principal. 10 Watts, 258.
2. The surety differs from bail in this, that the latter actually has, or is by law presumed to have, the custody of his principal, while the former has no control over him. The bail may surrender his principal in discharge of his obligation; the surety cannot be discharged by such surrender.
3. In Pennsylvania it has been decided that the creditor is bound to sue the principal when requested by the surety, and the debt is due; and that when proper notice is given by the surety that unless the principal be sued, be will consider himself discharged, he will be so considered, unless the principal be sued. 8 Serg. & Rawle, 116; 15 Serg. & Rawle, 29, 30; S. P. in Alabama, 9 Porter, R. 409. But in general a creditor may resort to the surety for the payment of his debt in the first place, without applying to the principal. 1 Watts, 28O; 7 Ham. part 1, 223. Vide Bouv. Inst. Index, h. t.; Contribution; Contracts; Suretyship.
SURETY OF THE PEACE, crim. law. A security entered into before. Some competent court or officer, by a party accused, together with some other person, in the form of recognizance to the commonwealth in a certain sum of money, with, a condition that the accused shall keep the peace towards all the citizens of the commonwealth. A security for good behaviour is a similar recognizance with a condition that the accused shall be of good behaviour.
2. This security may be demanded by a court or officer having jurisdiction from all persons who threatened to kill or to, injure others, or who by their acts give reason to believe they will commit a breach of the peace. And even after an acquittal a prisoner may be required to give scourity of the peace or good behaviour, when the circumstances of the case justify a court in believing the public good requires it. 2 Yeates, R. 437 Bac. Ab. h. t.; 1 Binn. R. 98, note; Com. Dig. h. t.; Yin. Ab. h. t.; Bl. Com. B. 4, c. 18, p. 251.
3. To obtain surety to keep the peace, the party requiring it must swear or affirm be fears a present or future danger, and not merely swear or affirm to a breach of the peace which is past; it is usual, however, to state such injuries, and when the circumstances warrant it, a threat of their repetition, as a legitimate ground for fearing future injury, which fear must always be stated. 1 Chit. Pr. 677.
4. A recognizance to keep the peace is forfeited only by an actual attack or threat of bodily harm, or burning a house, and the like, but not by bare words Of h an choler. Hawk. h. 1, c. 60, s. 2. Vide Good Behaviour.
SURETYSHIP, contracts. An accessory agreement by which a person binds himself for another already bound, either in whole or in part, as for his debt, default or miscarriage.
2. The person undertaken for must be liable as well as the person giving the promise, for otherwise the promise would be a principal and not a collateral agreement, and the promissor would be liable in the first instanee; for example, a married woman would. Not be liable upon her contract, and the person who should become surety for her that she would perform it would be responsi-ble as a principal and not as a surety. Pitm. on P. & S. 13; Burge on Sur. 6; Poth. Ob. n. 306. If a Person undertakes as a surety when he knows the obligation, of the principal is void, he becomes a principal: 2 Id. Raym. 1066; 1 Burr. 373.
3. As the contract of suretyship must relate to the same subject as the principal obligation, it follows that it must not be of greater extent or more onerous' either in its amount, or in the time or manner, or place of performance, than such principal obligation; and if it so exceed, ii will be void, as to such excess. But the obligation of the surety may be less onerous, both in its amount, and in the time, place and manner of its performance, that of the principal debtor; it may be for a less amount, or the time may be more protracted. Burge, on Sur. 4, 5.
4. The contract of suretyship may be entered into by all persons who are sui juris, and capable of entering into other contracts. See Parties to contracts.
5. It must be made upon a sufficient consideration. See Consideration.
6. The contract of suretyship or guaranty, requires a present agreement between the contracting parties; and care must be taken to observe the distinction between an actual guaranty, and an offer to guaranty at a future time; when an offer is made, it must be accepted before it becomes binding. 1 M. & S. 557; 2 Stark. 371; Cr. M. & Ros. 692.
7. Where the statute of frauds, 29 Car. II., c. 3, is in force, or its principles have been adopted, the contract of suretyship "to answer for the debt, default or miscarriage of another person," must be in writing, &c.
8. The contract of suretyship is discharged and becomes extinct, 1st. Either by the terms of the contract itself. 2d. By the acts to which both the credi-tor and principal alone are parties. 3d. By the acts of the creditor and sure-ties. 4th. By fraud. 5th. By operation of law.
9. - §1. When by his contract the surety limits the period of time for which he is willing to be responsible, it is clear he cannot be beld liable for a longer period; as when he engages that an officer who is elected annually shall faithfully perform his duty during his continuance in office; his obligation does not extend for the performance of his duty by the same officer who may be elected for a second year. Burge on Sur. 63, 113; 1 McCord, 41; 2 Campb. 39; 3 Ad. & Ell. N. S. 276; 2 Saund. 411 a; 6 East, 512; 2 M. & S. 370; New R. (5 B. & P.) 180; 2 M. & S. 363; 9 Moore, 102.
10. - §2. The contract of suretyship becomes extinct or discharged by the acts of the principal and of the creditor without any act of the surety. This may be done, 1. By payment, by the principal. 2. By release of the principal. 3. By tender made by principal to the creditor. 4. By compromise. 5. By accord and satisfaction. 6. By novation. 7. By delegation. 8. By set-off. 9. By alteration of the contract.
11. - 1. When the principal makes payment, the sureties are immediately dis- charged, because the obligation no longer exists. But as payment is the act of two parties, the party tendering the debt and the party receiving it, the money or thing due must be accepted. 7 Pick 88; 4 Pick. 83; 8 Pick. 122. See Payment.
12. - 2. As the release of the principal discharges the obligation, the surety is also discharged by it.
13. - 3. A lawful tender made by the principal or his authorized agent, to the creditor or his authorized agent, will discharge the surety. See. 2 Blackf. 87; 1 Rawle, 408; 2 Fairf. 475; 13 Pet. 136.
14. - 4. When the creditor and principal make a compromise by which the principal is discharged, the surety is also discharged. 11 Ves. 420; 3 Bro. C. C. 1; Addis. on Contr. 443.
15. - 5. Accord and satisfaction between the principal and the creditor will discharge the surety, as by that the whole obligation becomes extinct. See Accord and satisfaction.
16. - 6. It is evident that a simple novation, or the making a new contract and annulling the old, must, by the destruction of the obligation, discharge the surety.
17. - 7. An absolute delegation, where the principal procures another person to assume the payment upon condition that he shall be discharged, will have the effect to discharge the surety. See Delegation.
18. - 8. When the principal has a just set-off to the whole claim of the creditor, the surety is discharged.
19. - 9. If the principal and creditor change the nature of the contract, so that it is no longer the same, the surety will be discharged; and even extending the time of payment, without the consent of the surety, when the agreement to give time is founded upon a valuable consideration, is such an alteration of the contract as discharges the surety. See Giving Time.
20. - §3. The contract is discharged by the acts of the creditor and surety, 1. By payment made by the surety. 2. By release of the surety by the creditor. 3. By compromise between them. 4. By accord and satisfaction. 5. By set off.
21. - §4. Fraud by the creditor in relation to the obligation of the surety, or by the debtor with the knowledge or assent of the creditor, will discharge the liability of the surety. 3 B. & C. 605; S. C. 6 Dowl. & Ry. 505; 6 Bing. N. C. 142.
22. - §5. The contract of suretyship is discharged by operation of law, 1. By confusion. - 2. prescription, or the act of limitations. 3. By bankruptcy.
23. - 1. The contract of suretyship is discharged by confusion or merger of rights; as, where the obligee marries the obligor. Burge on Sur. 256; 2 Ves. p. 264; 1 Salk. 306; Cro. Car. 551.
24. - 2. The act of limitations or prescription is a perfect bar to a recovery against a surety, after a sufficient lapse of time, when the creditor was sui juris and of a capacity to sue.
25. - 3. The discharge of the surety under the bankrupt laws, will put an end to his liability, unless otherwise provided for in the law.
26. The surety has the right to pay and discharge the obligation the moment the principal is in default, and have immediate recourse to his principal. He need not wait for the commencement of an action, or the issue of legal process, but he cannot accelerate the liability of the principal, and if he pays money voluntarily before the time of payment arrives, he will have no cause of action until such time, or if he pays after the principal obligation has been discharged, when he was under no obligation to pay, he has no ground of action,.
27. Co-sureties are in general bound in solido to pay the debt, when the principal fails, and if one be compelled to pay the whole, he may demand contribution from the rest, and recover from them their several proportions of their common liability in an action for money paid by him to their use. 6 Ves. 807; 12 M. & W. 421 8 M. & W. 589; 4 Scott, N. S. 429. See, generally, 15 East, R. 617; Yelv. 47 n.; 20 Vin. Ab. 101; 1 Supp. to Ves. jr. 220, 498, 9; Ayliffe's Pand. 559; Poth. Obl. part 2, c. 6; 1 Bell's Com. 350, 5th ed.; Git-ing time; Principal; Surety.
SURGERY, med. jur. That part of the healing art which relates to external diseases; their treatment; and, specially, to the manual operations adopted for their cure.
2. Every lawyer should have some acquaintance with surgery; his knowledge on this subject will be found useful in cases of homicide and wounds.
SURNAME. A name which is added to the christian name, and which, in modern times, have become family names.
2. They are called surnames, because originally they were written over the name in judicial writings and contracts. They were and are still used for the purpose of distinguishing persons of the same name. They were taken from something attached to the persons assuming them, as John Carpenter, Joseph Black, Samuel Little, &c. See Name.
SURPLUS. That which is left from a fund which has been appropriated for a particular purpose; the remainder of a thing; the overplus the residue. (q. v.) See 18 Ves. 466.
2. The following is an example of a surplus; if a thing be put in pledge as a security to pay one hundred dollars, and it be afterwards sold for one hundred and fifty dollars, the fifty dollars will be the surplus. Wolff, Inst. §697. See Overplus; Residue.
SURPLUSAGE, pleading. A superfluous and useless statement of matter wholly foreign and impertinent to the cause.
2. In general surplusagium non nocet, according to the maxim utile per inutile non vitiatur; therefore if a man in his declaration, plea, &c., make mention of a thing which need, not be stated, but the matter set forth is grammatically right, and perfectly sensible, no advantage can be taken on demurrer. Com. Dig. Pleader, C 28, E 2; 1 Salk. 325; 4 East, 400; Gilb. C. P. 131; Bac. Ab. Pleas, 1, 4; Co. Litt. 303, b; 2 Saund. 306, n. 14; 5 East 444; 1 Chit. Pl. 282; Lawes on Pl. 63; 7 John. 462; 3 Day, 472; 2 Mass. R. 283; 13 John. 80.
3. When, by an unnecessary allegation the plaintiff shows he has no cause of action, the defendant may demur. Com. Dig. Pleader, c. 29; Bac. Ab. Pleas, 1, 4; see 2 East, 451; 4 East, 400; Dougl. 667; 2 Bl. Rep. 842; 3 Cranch, 193; 2 Dall. 300; 1 Wash. R. 257.
4. When the surplusage is not grammatically set right, or it is unintelligible and, no sense at all can be given it, or it be contradictory or repugnant to what is before alleged, the adversary may take advantage of it on special demurrer. Gilb. C. P. 132; Lewes on Pl. 64.
5. When a party alleges a material matter with an unnecessary detail of circumstances, and the essential and non-essential parts of a statement are, in their nature, so connected as to be incapable of separation, the opposite party may include under his traverse the whole matter alleged. And as it is an established rule that the evidence must correspond with the allegations, it follows that the party who has thus pleaded such unnecessarly matter will be required to prove it, and thus he is required to sustain an increased burden of proof, and incurs greater danger of failure at the trial. For example, if in justifying the taking of cattle damage feasant, in which case it is sufficient to allege that they were doing damage to his freehold, he should state a seisin in fee, which is traversed, be must prove a seisin in fee. Dyer, 365; 2 Saund. 206, a, note 22 Steph. on Pl. 261, 262; 1 Smith's Lead. Cas. 328, note; 1 Greenl. Ev. §51 1 Chit. Pl. 524, 525; U. S. Dig. Pleading, VII. c.
SURPLUSAGE, accounts. A greater dishursement than the charges of the accountant amount to.
SURPRISE. This term is frequently used in courts of equity and by writers on equity jurisprudence. It signifies the act by which a party who is entering into a contract is taken unawares, by which sudden confusion or perplexity is created, which renders it proper that a court of equity should relieve the party so surprised. 2 Bro. Ch. R. 150; 1 Story, Eq. Jur. §120, note. Mr. Jeremy, Eq. Jur. 366, seems to think that the word surprise is a technical expression, and nearly synonymous. with fraud. Page 383, note. It is sometimes, used in this sense when it is deemed presumptive of, or approaching to fraud. 1 Fonbl. Eq. 123 3 Chan. Cas. 56, 74, 103, 114. Vide 6 Ves. R. 327, 338; 2 Bro. Ch. R. 826; 16 Ves. R. 81, 86, 87; 1 Cox, R. 340; 2 Harr. Dig. 92.
2. In practice, by surprise is understood that situation in which a party is placed, without any default of his own, which will be, injurious to his interest. 8 N. AS. 407. The courts always do everything in their power to relieve a party from the effects of a surprise, when he has been diligent in endeavouring to avoid it. 1 Clarke's R. 162; 3 Bouv. Inst. n. 3285.
SURREBUTTER, pleading. The plaintiff's answer to the defendant's rebutter is governed by the same rules as the replication. (q. v.) Vide 6 Com. Dig. 185; 7 Com. Dig. 389
SUBREJOINDER, pleading. The plaintiff's answer to the defendant's rejoinder. It is governed in every respect by the same rules as the replication. (q. v.) Steph. Pl. 77; Arch., Civ. Pl. 284; 7 Com. Dig. 389.
SURRENDER, estates, conveyancing. A yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder, by which the lesser estate is merged in the greater by mutual agreement, Co. Litt. 337, b.
2. A surrender is of a nature directly opposite to a release; for, as the latter operates by the greater estate descending upon the less, the former is the falling of a less estate into a greater, by deed. A surrender immediately divests the estate of the surrenderer, aud vests it in the surrenderee, even without the assent (q. v.) of the latter. Touchs. 300, 301.
3. The technical and proper words of this conveyance are, surrender and yield up; but any form of words; by which the intention. of the parties is sufficiently manifested, will operate as a surrender, Perk. §607; 1 Term Rep. 441; Com. Dig. Surrender, A.
4. The surrender may be express or implied. The latter is when an estate, incompatible with the existing estate, is accepted or the lessee takes a new lease of the same lands. 16 Johns. Rep. 28; 2 Wils. 26; 1 Barn. & A. 50; 2 Barn. & A. 119; 5 Taunt. 518, and see 6 East, R. 86; 9 Barn. & Cr. 288 7 Watts, R. 128. Vide, generally, Cruise, Dig. tit. 32, c. 7; Com. Dig. h. t.; Vin. Ab. h. t.; 4 Kent, Com. 102; Nels. Ab. h. t.; Rolle's Ab. h. t. 11 East, R. 317, n.
5. The deed or instrument by which a surrender is made, is also called a surrender. For the law of presumption of surrenders, see Math. on Pres. ch. 13, p. 236; Addis. on Contr. 658-661.
SURRENDER OF CRIMINALS. The act by which the public authorities deliver a person accused of a crime, and who is found in their, jurisdiction, to the authorities within whose jurisdiction it is alleged the crime has been committed. Vide Extradition; Fugitives from justice.
SURRENDEREE. One to whom a surrender has been made.
SURRENDEROR. One who makes a surren der; as when the tenant gives up the estate and cancels his lease before the expiration of the term; one who yields up a freehold estate for the purpose of conveying it.
SURREPTITIOUS. That which is done in a fraudulent stealthy manner.
SURROGATE. In some of the states, as in New Jersey, this is the name of an officer who has jurisdiction in granting letters testamentary and letters of administration.
2. In some states, as in Pennsylvania, this officer is called register of wills and for granting letters, of administration in others, as in Massachusetts, he is called judge of probates.
SURVEY, The act by which the quantity of a piece of land is ascertained; the paper containing a statement of the courses, distances, and quantity of land, is also called a survey.
2. A survey made by authority of law and duly returned into the land office, is a matter of record, and of equal dignity with the patent. 3 Marsh. 226; 2 J. J. Marsh, 160. See 3 Greenleaf, 126; 5 Greenleaf, 24; 14 Mass. 149 1 Harr. & John. 20 1 1 Overt. 199; 1 Dev. & Bat. 76.
3. By survey is also understood an examination; as, a survey has been made of your house, and now the insurance company will insure it.
SURVIVOR. The longest liver of two or more persons.
2. In crises of partnership, the surviving partner is entitled to have all the effects of the partnership, and, is bound to pay all the debts owing by the firm. Gow on Partn. 157; Watson on Partn. 364. He is, however, bound to account for the surplus to the representatives of his deceased partners, agreeably to their respective rights.
3. A surviving trustee is generally vested with all the powers of all the trustees, and the surviving administrator is authorized to act for the estate as if he had been sole administrator. As to the presumption of survivorship, when two or more persons have perished by the same event, see Civ. Code of Lo. art. 930 to 933 and vide Death; Cro. Eliz. 503; 1 Bl. Rep. 610 2 Phill. Rep. 261; S. C. 1 Eccles. Reports, 250; Fearne on Rem. iv.; Poth. on Obli. by Evans, vol. 2, p. 346; 8 Ves. 10; 14 Ves. 578 17 Ves. 482; 6 Taunt. 213; Cowp. 257; 5 Ves. 485. Vide, generally, 2 Fonbl. Eq. 102; 8 Vin. Ab. 323; 20 Vin. Ab. 146; 8 Com. Dig. 475, 594; 1 Suppl. to Ves. jun. 115, 186, 407, 8, 2 Suppl. to Ves. jun. 47, 296, 340, 391,477; 1 Fodere, Med. Leg. §424-483.
4. The right of survivorship among joint-tenants has been abolished, except as to estates beld in trust, in Pennsylvania, New York, Kentucky, Virginia, Indiana, Missouri, Tennessee, Alabama, Georgia, North and South Carolina. Vide Estates in Joint-tenancy. In Connecticut it never existed. 1 Swift's Dig. 102 see 1 Hill. Ab. 440. As to survivorship among legatees, see 1 Turn. & R. 413; 1 Br. C. C. 574; 3 Russ. 217. See Death; Estates in Joint-tenancy; Joint-tenants; Partnership.
SUS' PER COLL', EngI. law. In the English practice, a calendar is made out of attainted criminals, and the judge signs the calendar with their separate judgments in the margin. In the case of a capital felony. it is written opposite the prisoner's name, "let him be hanged by the neck," which, when the proceedings were in Latin, was, "suspendatur per collum," or, in the abbreviated form, "sus' per coll'." 4 Bl. Comm. 403.
SUSPENDER, Scotch law. He in whose favor a suspension is made.
2. In general a suspender is required to give caution to pay the debt in the event it shall be found due. Where the suspender cannot, from his low or sus-pected circumstances, procure unquestionable security, the lords admit jura-tory caution; but the reasons of suspension are in that case, to be considered with particular accuracy at passing the bill. Act. S. 8 Nov. 1682; Ersk. Prin. L. Scot. 4, 3, 6.
SUSPENSE. When a rent, profit a prendre, and the like, are, in consequence of the unity of possession of the rent, &c., of the land out of which they issue, not in esse for a time, they are said to be in suspense, tunc dormiunt, but they may be revived or awakened. Co, Litt. 313 a.
SUSPENSION. A temporary stop of a right, of a law, and the like.
2. In times of war the habeas corpus act maybe suspended by lawful authority.
3. There may be a suspension of an officer's duties or powers, when he is charged with crimes. Wood's Inst. 510.
4. Suspension of a right in an estate is a partial extinguishment, or an extinguishment for a time. It differs from an extinguishment in this. A suspended right may be revived; one extinguished is absolutely dead. Bac. Ab. Extinguishment, A.
5. The suspension of a statute for a limited time operates so as to prevent its operation for the time, but it hits not the effect of a repeal. 3 Dall. 365.
SUSPENSION, Scotch law. That form of law by which the effect of a sentence-condemnatory, that has not yet received execution, is stayed or postponed, till the cause be again considered. Ersk. Prin. L. Scotl. 4, 3, 5. Suspension is competent also, even where there is no decree, for putting a stop to any illegal act whatsoever. Id. 4, 3, 7.
2. Letters of suspension bear the form of a summons, which contains a warrant to cite the charger, Ib.
SUSPENSION, eccl. law. An ecclesiastical censure, by which a spiritual person is either interdicted tho exercise of his ecclesiastical function, or hin-dered from receiving the profits of his benefice. It may be partial or total; for a limited time, or forever, when it is called deprivation or amotion. Ayl. Parerg. 501.
SUSPENSION OF ARMS. An agreement between belligerents, made for a short time or for a particular place, to cease hostilities between them. See Armistice. Truce.
SUSPENSION OF A RIGHT. The act by which a party is deprived of the exercise of his right, for a time.
2. When a right is suspended by operation of law, the right is revived the moment the bar is removed; but when the right is suspended by the act of the party, it is gone forever. See 1 Roll. Ab. tit. Extinguishment, L, M.
SUBPENSIVE CONDITION. One which prevents a contract from going into operation until it has been fulfilled; as if I promise to pay you one thousand dollars on condition that the ship Thomas Jefferson shall arrive from Havre, the contract is suspended until the arrival of the ship. 1 Bouv. Inst. n. 731.
SUSPICION. A belief to the disadvantage of another, accompanied by a doubt.
2. Without proof, suspicion, of itself, is evidence of nothing. When a crime has been committed, an arrest may be made when, 1st. There are such circumstances as induce a strong presumption of guilt; as being found in possession of goods recently stolen, without giving a probable account of having obtained the possession honestly. 2d. The absconding of the party accused. 3d. Being found in company of known offenders. 4th. Living an idle disorderly life, without any apparent means of support. In such cases the arrest must be made as in other cases. Vide 20 Vin. Ab. 150; 4 Bl. Com. 290.
SUTLER. A man whose employment is to sell provisions aud liquor to a camp.
2. By the articles of war, art. 29, no sutler is permitted to sell any kind of liquor or victuals, or to keep his house or shop open for the entertainment of soldiers, after nine at night, or before the beating of the reveillee, or upon Sundays during divine service or sermon, on penalty of being dismissed all future sutling. And by art. 60, all sutlers are to be subject to orders according to the rules and discipline of war.
SWAINMOTE COURT, Engl. law. The court within the forest to which all the freeholders owe suit and service. Bac. Ab. Courts of the Forest, 2.
TO SWEAR. To take an oath, judicially administered. Vide Affirmation; Oath.
2. To swear also signifies to use such profane language as is forbidden by law. This is generally punished by statutory provisions in the several states.
SWINDLER, criminal law. A cheat; one guilty of defrauding divers persons. 1 Term Rep. 748; 2 H. Blackst. 531; Stark. on Sland. 135.
2.
Swindling is usually applied to a transaction, where the guilty party procures
the delivery to him, under a pretended contract, of the personal property of another,
with the felonious design of appropriating it to his own use. 2 Russel on
Crimes, 130; Alison, Prine. Cr. Law of
SYMBOL. A sign; a token; a representation of one thing by another.
2. A symbolical delivery is equivalent, in many cases, in its legal effects, to actual delivery; as, for example, the delivery of the keys of a warehouse in which goods are deposited, is a delivery sufficient to transfer the property. 1 Atk. 171; 5 John. 335; 2 T. R. 462; 7 T. R. 71; 2 Campb. 243; 1 East, R. 194; 3 Caines, 182; 1 Esp. 598; 3 B. & C. 423.
SYNALLAGMATIC CONTRACT, civil law. A synallagmatic or bilateral contract is one by which each of the contracting parties binds himself to the other; such are the contracts of sale, hiring, &c. Poth. Ob. n. 9. Vide Contract.
SYNDIC. A term used in the French law, which answers in one sense to our word assignee, when applied to the management of bankrupts' estates; it has also a more extensive meaning; in companies and communities, syndics are they who are chosen to conduct the affairs and attend to the concerns of the body corporate or community; and in that sense the word corresponds to director or manager. Rodman's Notes to Code. de Com. p. 351; Civ. Code of Louis. art. 429; Dict. de Jurisp. art. Syndic.
SYNGRAPH. A deed, bond, or other instrument of writing, under the band and seal of all the parties. It was so called because the parties wrote together.
2. Formerly such writings were attested by the subscription and crosses of the witnesses; afterwards, to prevent frauds and concealmenta, they made deeds of mutual covenant in a script and rescript, or in a part and counterpart, and in the middle between the two copies they wrote the word syngraphus in large letters, which being cut through the parchment, and one being delivered to each party, on being afterwards put together, proved their authenticity.
3. Deeds thus made were denominates syngraphs by the canonists, and by the common lawyers chirographs. (q. v.) 2 Blackstone's Commentaries, 296.
SYNOD. An ecclesiastical assembly.
T
TABELLIO. An officer among the Romans who reduced to writing and into proper form, agreements, contracts, wills, and other instruments, and witnessed their execution. The term tabellio is derived from the Latin tabula, seu tabella, which in this sense, signified those tables or plates covered with wax which were then used instead of paper. 8 Toull. n. 5; Delauriere, sur Ragneau, mot Notaire.
2. Tabelliones differed from notaries in many respects: they had judicia jurisdiction in some cases, and from their judgments there were no appeals. Notaries were then the clerks or aiders of the tabelliones, they received the agreements of the parties, which they reduced to short notes; and these contracts were not binding until they were written in extenso, which was done by the tabelliones. Encyclopedie de, M. D'Alembert, mot Tabellion; Jac. Law. Dict. Tabellion; Merlin, Repertoire, mot Notaire, §1; 3 Giannone's Istoria di Napoli, p. 86.
TABLEAU OF DISTRIBUTION. In Louisiana this is a list of creditors of an insolvent estate, stating what each is entitled to. 4 N. S. 535.
TABLES. A synopsis in which many particulars are brought together in a general view; as genealogical tables, which are composed of the names of persons
TABULA IN NAUFRAGIO, Engl. law. Literally a plank in a wreck. This figure has been used to denote the condition of a third mortgagee, who obtained his mortgage without any knowledge of a second mortgage, and then, being puisne, takes the first encumbrance; in this case he shall squeeze out and have satisfaction before the second. 2 Ves. 573; 2 Fonbl. Eq. B. 3, c. 2, §2; 2 Ventr. 337; 1 Ch. Cas. 162; 1 Story, Eq. §§414, 415; and Tacking.
TACIT. That which, although not expressed, is understood from the nature of the thing, or from the provision of the law; implied.
TACIT LAW. A law which derives its authority from the common consent of the people, without any legislative enactment. 1 Bouv. Inst. n. 120.
TACK, Scotch law. A contract of location by which the use of land, or any other immovable subject, is, set to the lessee or tacksman for a certain yearly rent, either in money, the fruits of tho ground, or services. Ersk. Prin. Laws of Scot. B. 2, t. 6, n. 8; 1 Tho. Co. Litt. 209. This word is nearly synonymous with lease.
TACKING, Engl. law. The union of securities given at different times, so as to prevent any intermediate purchasers claiming title to redeem, or otherwise discharge one lien, which is prior, without redeeming or discharging other liens also, which are subsequent to his own title. Jer. Eq. Jur. B. 1, c. 2, §1, p. 188 to 191; 1 Story, Eq. Jur. §412.
2. It is an established doctrine in the English chancery that a bona fide purchaser and without any notice of a defect in his title at the time of the purchase, may lawfully buy any statute, mortgage, or encumbrance, and if he can defend by those at law, his adversary shall have no help in equity to set those encumbrances aside, for equity will not disarm such a purchaser. And as mortgagees are considered in equity as purchasers pro tanto, the same doctrine has extended to them, and a mortgagee who has advanced his money without notice of any prior encumbrance, may, by getting an assignment of a statute, judgment, or recognizance, protect himself from any encumbrance subsequent to such statute, judgment or recognizance, though prior to his mortgage; that is, he will be allowed to tack or unite his mortgage to such old security, and will by that means be entitled to recover all moneys for which such security was given, together with the money due on his mortgage, before the prior. mortgagees are entitled to recover anything. 2 Fonbl. Eq. 306; 2 Cruise, t. 15, c. 5, s. 27; Powell on Morg. Index, h. t.; 1 Vern. 188; 8 Com. Dig. 953; Madd. Ch. Index, h. t.
3. This doctrine is inconsistent with the laws of the several states, which require the recording of mortgages. Caines' Cas. Er. 112; 1 Hop. C. R. 231; 3 Pick. 50; 2 Pick. 517.
4. The doctrine of tacking seems to have been acknowledged in the civil law, Code, 8, 27, 1; but see Dig. 13, 7, 8; and see 7 Toull. 110. But this tacking could not take place to the injury of intermediate encumbrancers. Story on Eq. §1010, and the authorities cited in the note.
TAIL. An estate tail is an estate of inheritance, to a man or a woman and his or her heirs of his or her body, or heirs of his body of a particular description, or to several persons and the heirs of their bodies, or the heirs generally or specially of the body or bodies of one person, or several bodies. Prest. on Estates, 355; Cruise, tit. 2, c. 1, s. 12.
2. Estates tail, as qualified "in their limitation and extent, are of sev-eral sorts. They have different denominations, according to the circumstances under which, or the persons to whom they are limited. They are usually divided into estates tail general or special.
3. But they may be more advantageously arranged under the following classes.
4. - 1. As to the extent of the degree to which the estates may descend, they are, 1st, general; 2d, qualified.
5. - 2. As to the sex of the person who may succeed, they are, 1st. General, as extending to males or females of the body, without exception. 2d. Special, as admitting only one sex to the succession, and excluding the other sex.
6. - 3. As to the person by whom or by whose body those heirs are to be begotten, they are either, 1st. General, as to all the heirs of the body of a man or woman. 2d. Special, as to the heirs of the body of a man or woman begotten by a particular person, or to the heirs of the two bodies of a man and woman. On the several species of estates tail noticed under this division, it may be observed, that the samer estate may at the same time, be general in one respect; as, for example, to all the heirs of the body in whatever degree they are related; and may be, special in another respect, as that these heirs shall be males, &c. Prest. on Estates, 383, 4.
7. The law relating to entails is diversified in the several states. In Indiana and Louisiana they never existed they are unknown in Illinois and Vermont. In Ohio, Virginia, Tennessee, Kentucky, and New York, estates tail are converted into estates in fee simple by statute; and they may be barred by a simple conveyance in Pennsylvania. In Alabama, Missouri, Mississippi, New Jersey, Connecticut and North Carolina, they have been modified, and in Georgia, they have been abolished without reservation. Griff. Reg. h. t. Vide, generally, 8 Vin. Ab. 227 to 272; 10 Id. 257 to 269; 20 Id. 163; Bac. Ab. Estate in tail; 4 Com. Dig. 17; 4 Kent, Com. 12; Bouv. Inst. Index, h. t.; and. 1 Bro. Civ. Law, 188, where an attempt is made to prove that an estate resembling an estate tail was not unknown to the Romans.
TAKE. This is a technical expression which signifies to be entitled to; as, a devisee will take under the will. To take also signifies to seize, as to take and carry away.
TAKING, crim. torts. The act of laying hold upon an article, with or without removing the same; a felonious taking is not sufficient without a carrying away, to constitute the crime of larceny. (q. v.) And when the taking has been legal, no subsequent act will make it a crime. 1 Moody, Cr. Cas. 160.
2. The taking is either actual or constructive. The former is when the thief takes, without any pretence of a contract, the property in question.
3. A constructive felonious taking occurs when, under pretence of a contract, the thief obtains the felonious possession of goods; as, when under the pretence of hiring, he had a felonious intention at the time of the pretended contract, to convert the property to his own use. The court of criminal sessions for the city and county of Philadelphia have decided that in the case of a man who found a quantity of lumber, commonly called a raft, floating on the river Delaware and fastened to the shore, and sold it, to another person, at so low a price. as to enable the purchaser to remove it, and did no other act himself, but afterwards the purchaser removed it, that thls was a taking by the thief, and he was actually convicted and sentenced to two years imprisonment in the penitentiary. Hill's case, Aug. Sessions, 1838. It cannot be doubted, says Pothier, Contr. de Vente, n. 271, that by selling and delivering a thing which he knows does not belong to him, the party is guilty of theft.
4. When property is left through inadvertence with a person and he conceals it animo furandi, he is guilty of a felonious taking and may be convicted of larceny. 17 Wend. 460.
5. But when the owner parts with the property willingly, under an agreement that he is never to receive the style indentical property, the taking is not felonious; as, when a person delivered to the defendant a sovereign to get it changed, and the defendant never returned either with the sovereign or the change, this was not larceny. 9 C. & P. 741. See 1 Moody, C. C. 179; Id. 185; 1 Hill. R. 94; 2 Bos. & P. 508; 2 East, P. C. 554; 1 Hawk. c. 33, s. 8; 1 Hale, P. C. 507; 3 Inst. 408; and Carrying away; Finder; Invito Domino; Larceny; Robbery.
6. The wrongful taking of the personal property of another, when in his actual possession, or such taking of the goods of another who, has the right of immediate possession, subject the tort feasor to an action. For example, such wrongful taking will be evidence of a conversion, and an action of trover may be maintained. 2 Saund. 47, h. t.; 3 Willes, 55. Trespass is a concurrent remedy in such a case. 3 Wils. 336. Replevin may be supported by the unlawful taking of a personal chattel. 1 Chit. Pl. 158. Vide Bouv. Inst. Index, h. t.
TALE, comm. law. A denomination of money in China. In the computation of the ad valorem duty on goods, &c. it is computed at one dollar and forty-eight cents. Act of March 2, 1799, s. 61, 1 Sto. L. U. S. 626. Vide Foreign Coins.
TALE, Eng. law. The declaration or count was anciently so called in law pleadings. 3 Bl. Com. 293.
TALES, Eng. law. The name of a book kept in the king's bench office, of such jurymen as were of the tales. See Tales de circumstantibus.
TALES DE CIRCUMSTANTIBUS, practice. Such persons as are standing round. When ever the panel of the jury is exhausted the court order that the jurors wanted shall be selected from among the bystanders which order bears the name of tales d circumstantibus. Bac. Ab. Juries, C.
2. The judiciary act of Sept. 24, 1789, 1 Story, L. U. S. 64, provides, §29, that When from challenges, or otherwise, there shall not be a jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of jurors shall happen, return jurymen de talibus circumstantibus sufficient to complete the panel; and when the marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested persons as the court shall appoint. See 2 Hill, So. Car. R. 381; 2 Penna. R. 412; 4 Yeates, 236; Coxe, 283; 1 Blackf. 63; 2 Harr. & J. 426; 1 Pick. 43, n.
TALLAGE. This word is derived from the French tailler, and signifies liter-ally to cut. In England it is used to signify subsidies, taxes, customs, and indeed any imposition whatever by the government for the purpose of raising a revenue. Bac. Ab. Smuggling, &c. B; Fortesc. De Laud. 26; Madd. Exch. ch. 17; 2 Inst. 531, 532 Spelm. Gl. h. v.
TALLIES, evidence. The parts of a piece of wood out in two, which persons use to denote the quantity of goods supplied by one to the other. Poth. Obl. pt. 4, c. 1, art. 2, §7.
TALZIE, HEIR IN. Scotch law. Heirs of talzie or tailzie, are heirs of estates entailed. 1 Bell's Com. 47.
TANGIBLE PROPERTY. That which may be felt or touched; it must necessarily be corporeal, but it may be real or personal. A house and a horse are, each, tangible property. The terni is used in contradistinction to property not tangible. By the latter expression, is; meant that kind of property which, though in possession as respects the right, and, consequently, not strictly choses in action, yet differ; from goods, because they are neither tangible nor visible, though the thing produced from the right be perfectly so. In this class may be mentioned copyrights and patent-rights. 1 Bouv. Inst. n. 467, 478.
TARDE VENIT, Practice. The name of a return made by the sheriff to a writ, when it came into his hands too late to be executed before the return day.
2. The sheriff is required to show that he has yielded obedience to the writ, or give a good excuse for his omission; and he may say, quod breve adeo tarde venit quod exequi non possunt. It is usual to return the writ with an indorsement of tarde venit. Com. Dig. Return, D 1.
TARE, weights. An allowance in the purchase and sale of merchandise, for the weight of the box, bag, or cask, or other thing, in which the goods are packed. It is also an allowance made for tiny defect, waste, or diminution in the weight, quality or quantity of goods. It differs from tret. (q. v.)
TARIFF. Customs, duties, toll. or tribute payable upon merchandise to the general government is called tariff; the rate of customs, &c. also bears this name and the list of articles liable to duties is also called the tariff.
2. For the tariff of duties imposed on the importation of foreign merchan-dise into the United States.
TAVERN. A place of entertainment; a house kept up for the accommodation of strangers.
2. These are regulated by various local laws. For the liabilities of tavern keepers, Vide Story on Bailm. art. 7; 2 Kent, Com. 458; 12 Mod. 487; Jones' Bailm. 94; 1 Bl. Com. 430; 1 Roll. Ab. 3, F; Bac. Ab. Inn, &c.; 1 Bouv. Inst. 1015, et seq.; and the articles Inn; Inn-keeper.
TAXES. This term in its most extended sense includes all contributions imposed by the government upon individuals for the service of the state, by whatever name they are called or known, whether by the name of tribute, tithe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name.
2. The 8th section of art. 1, Const. U. S. provides, that "congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay," &c. "But all duties, imposts and excises shall be uniform throughout the United States."
3. In the sense above mentioned, taxes are usually divided into two great classes, those which are direct, and those which are indirect. Under the former denomination are included taxes on land or real property, and under the latter taxes on articles of consumption. 5 Wheat. R. 317.
4. Congress have plenary power over every species of taxable property, except exports. But there are two rules prescribed for their government, the rule of uniformity and the rule of apportionment. Three kinds of taxes, namely, duties, imposts and excises are to be laid by the first rule; and capitation and other direct taxes, by the second rule. Should there be any other species of taxes, not direct, and not included within the words duties, imposts or customs, they might be laid by the rule of uniformity or not, as congress should think proper and reasonable. Id.
5. The word taxes is, in a more confined sense, sometimes applied in contradistinction to duties, imposts and excises. Vide, generally, Story on the Const. c. 14; 1 Kent, Com. 254; 8 Dall. 171; 1 Tuck. Black. App. 232; 1 Black. Com. 308; The Federalist, No. 21, 36; Woodf. Landl. and Ten. 197, 254.
TAXING COSTS, practice. The act by which it is ascertained to what costs a party is entitled.
2. It is a rule that the jury must assess the damages and costs separately, so that it may appear to the court that the costs were not considered, in the damages; and when the jury give costs in an amount insufficient to answer the costs of the suit, the plaintiff may pray that the officer may tax the costs, and such taxation is inserted in the judgment: this is said to be done ex assensu of the plaintiff, because at his prayer. Bac. Ab. Costs, K. The costs are taxed in the first instance, by the prothonotary or clerk of the court. See 2 Wend. R. 244; 1 Cowen, R. 591; 7 Cowen, R. 412; 2 Yerg. R. 245, 310; 6. Yerg. R. 412; Harp. R. 326; 1 Pick. R. 211; 10 Mass. R. 26; 16 Mass. R. 370. A bill of costs having been once submitted to such an officer for taxation, cannot be withdrawn from him and referred to another. 2 Wend. R. 252.
TEAMSTER. One who drives horses in a wagon for the purpose of carrying goods for hire he is liable as a common carrier. Story, Bailm. §496.
TECHNICAL. That which properly belongs to an art.
2. In the construction of contracts, it is a general rule that technical words are to be taken according to their approved and known use in the trade in which the contract is entered into, or to which it relates, unless they have manifestly been understood in another sense by the parties. 2 B. & P. 164; 6 T. R. 320; 3 Stark. Ev. 1036, and the article Construction.
3. Words which do not of themselves denote that they are, used in a technical sense, are to have their plain, popular, obvious and natural meaning. 6 Watts & Serg. 114.
4. The law, like other professions, has a technical language. "When a mechanic speaks to me of the instruments aud operations of his trade,", says Mr. Wynne, Eunom. Dial. 2, s. 5, "I shall be as unlikely to comprehend him, as he would me in the language of my profession, though we both of us spoke English all the while. Is it wonderful then, if in systems of law, and especially among the hasty recruits of commentators, you meet (to use Lord Coke's expression) with a whole army of words that cannot defend themselves in a grammatical war? Technical language, in all cases, is formed from the most intimate knowledge of any art. One words stands for a great many, as it is. always to be resolved into many ideas by definitions. It is, therefore, unintelligible, because it is concise, and it is useful for the same reason." Vide Language.
TEINDS, Scotch Law. That liquid proportion of the rents or goods of the people, which is due to churchmen for performing divine service, or exercising the other spiritual functions proper to their several offices. Ersk. Pr. L. Scot. B. 2, t. 10, s. 2. See Tithes.
TELLER. An officer in a bank or other institution. He is said to take that name from tallier, or one who kept a tally, because it is his duty to keep the accounts between the bank or other institution and its customers, or to make their accounts tally. In another sense teller signifies a person appointed to receive votes. In England the name of teller is given to certain officers in the exchequer.
TEMPORARY. That which is to last for a limited time; as, a temporary sta-tute, or one which is limited in its operation for a particular period of time after its enactment the opposite of perpetual.
TENANCY or TENANTCY. The state or condition of a tenant; the estate held by a tenant, as a tenant at will, a tenancy for years.
TENANT, estates. One who holds or possesses lands or tenements by any kind of title, either in fee, for life, for years, or at will. See 5 Mann. & Gr. 54; S. C. 44 Eng. C. L. Rep. 39; 5 Mann. & Gr. 112; Bouv. Inst. Index, h . t.
2. Tenants may be considered with regard to the estate to which they are en-titled. There are tenants in fee; tenants by the curtesy; tenants in dower; tenants in tail after. possibility of issue extinct; tenants for life tenants for years; tenants from year to year; tenants at Will; and tenants at suffrance. When considered with regard to their number, tenants are in severalty; tenants in common; and joint tenants. There is also a kind of tenant, called tenant to the praecipe. These will be separately examined.
3. Tenant in fee is he who has an estate of inheritance in the land. See Fee.
4. Tenant by the curtesy, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee simple or fee tail; and has by her issue born alive, which was capable of inheriting her estate. In this case he shall, on the death of his wife, hold the lands for life, as tenant by the curtesy. Co. Litt. 29, a; 2 Lilly's Reg. 656; 2 Bl. Com. 126. See Curtesy.
5. Tenant in dower is where the hushand of a woman is seised of an estate of inheritance, and dies; in this case, the wife shall have the third part of the lands and tenements of which he was seised at any time during the coverture, to hold to herself during the term of her natural life. 2 Bl. Com. 129; Com. Dig. Dower, A 1. See Dower.
6. Tenant in tail after possibility of issue extinct, is where one is tenant in special tail, and a person from whose body the issue was to spring, dies without issue; or having issue, becomes extinct; in these cases the survivor becomes tenant in tail after possibility of issue extinct. 2 Bl. Com. 124; and vide Estate tail after possibility of issue extinct.
7. Tenant for life, is he to whom lands or tenements are granted, or to which he derives by operation of law a title for the term of his own life, or for that of any other person, or for more lives than one.
8. He is called tenant for life, except when he bolds the estate by the life of another, when he is called tenant er autre vie. 2 Bl. Com. 84; Com. Dig. Estates, E 1; Bac. Ab. Estates, See Estate for life; 2 Lilly's Reg. 557.
9. Tenant for years, is he to whom another has let lands, tenements and hereditaments for a term of certain years, or for a lesser definite period of time, and the lessee enters thereon. 2, Bl. Com. 140; Com. Dig Estates by grant, G.
10. A tenant for years has incident to, and unseparable from his estate, unless by special agreement, the same estovers to which a tenant for life is entitled. See Estate for life. With regard to the crops or emblements, the tenant for years is not, in general, entitled to them after the expiration of his term. 2 Bl. Com. 144. But in Pennsylvania, the tenant is entitled to the way going crop. 2 Binn. 487; 5 Binn. 285, 289 2 S. & R. 14. See 5 B. & A. 768; this Diet. Distress; Estate for years; Lease; Lessee; Notice to quit.; Underlease.
11. Tenant from year to year, is he to whom another has let lands or tenements, without any certain or determinate estate; especially if an annual rent be reserved Com. Dig. Estates, R 1. And when a person is let into possession as a tenant, without any agreement as to time, the inference now is, that he is a tenant from year to year, until the contrary be proved; but, of course, such presumption may be rebutted. 3 Burr. 1609; 1 T. R. 163; 3 T. R. 16; 5 T. R. 471; 8 T. R. 3; 3 East 451. The difference between a tenant from year to year, and a tenant for years, is rather a distinction in words than in substance. Woodf., L. & J. 163.
12. Tenant at will, is when lands or tenements are let by one man to another, to have and th bold to him at the will of the lessor, by force of which the lessee is in possession. In this case the lessee is called tenant at will.
13. Every lease at will must be at the will of both parties. Co. Lit. 55; 2 Lilly's Reg. 555; 2 Bl. Com. 145., See Com. Dig. Estates, H 1; 12 Mass. 325; 1 Johns. Cas. 33; 2 Caines' C. Err. 314; 2 Caines' R. 169; 17 Mass. R. 282; 9 Johns. R. 331; 13 Johns. R. 235. Such a tenant may be ejected by the landlord at any time. 1 Watt's & Serg. 90.
14. Tenant at suffrance, is he who comes into possession by a lawful demise, and after his term is ended, continues the possession wrongfully, and holds over. Co. Lit. 57, b; 2 Leo. 46; 3 Leo. 153. See 1 Johns. Cas. 123; 5 Johns. R. 128; 4 Johns. R. 150; Id. 312.
15. Tenant in severalty, is he who holds land and tenements in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. 2 Bl. Com. 179.
16. Tenants in common, are such as hold by several and distinct titles, but by unity of possession. 2 Bl. Com. 161. See Estate in common; 7 Cruise, Dig. Ind. tit. Tenancy in Common; Bac. Abr. Joint-Tenants and Tenants in Common; Com. Dig. Abatement, E 10, F 6; Chancery, 3 V 4 Devise, N 8; Estates, K 8, K 2 Supp. to Ves. jr. vol. 1, 272, 315; 1 Vern. It. 353; Arch. Civ. Pl. 53, 73.
17. Tenants in common may have title as such to real or personal property; they may be tenants of a house, land, a horse, a ship, and the like.
18. Tenants in common are bound to account to each other; but they are bound to account only for the value of the property as it was when they entered, and not for any improvement or labor they put upon it, at their separate expense. 1 McMull. R. 298. Vide Estates in common; and 4 Kent, Com. 363. Joint tenants, are such as hold lands or tenements by joint tenancy. See Estate in joint tenany; 7 Cruise, Dig. Ind. tit. Joint Tenancy; Bac. Abr. Joint Tenants and Tenants in Common; Com. Dig. Estates, K 1; Chancery, 3 V 1; Devise, N 7, N 8; 2 Saund. Ind. Joint Tenants; Preston on Estates, 2 Bl. Com. 179.
19. Tenants to the praecipe, is be against whom the writ of praecipe is brought, in suing out a common recovery, and must be the tenant or seised of the freehold. 2 Bl. Com. 362.
TENANT OF THE DEMESNE, Eng. law. One who is tenant of a mesne lord; as where A is tenant of B, and C of A; B is the lord, A the mesne lord and C tenant of the demesne. Ham. N. P. 392, 393.
TENANT BY THE MANNER. One who has a less estate than a fee in land, which remains in the reversioner. He is so called because in avowries and other pleadings, it is specially shown in what manner, he is tenant of the land, in contradistinction to the veray tenant, who is called simply, tenant. Hamm. N. P. 393. See Veray.
TENANT PARAVAIL, English law. The tenant of a tenant; and is so called because he has the avails or profits of the land. Ham. N. P. 892, 393.
TENANT RIGHT, Eng. law. In leases from the crown, corporations or the church, it is usual to grant a further term to the old tenants in preference to strangers, and, as this expectation is seldom disappointed, such tenants are considered as baying an ulterior interest beyond their subsisting term; and this interest is called the tenant right. Bac. Ab. Leases and Terms for years, U.
TENDER, contracts, pleadings. A tender is an offer to do or perform an act which the party offering, is bound to perform to the party to whom the offer is made.
2. A tender may be of money or of specific articles; these will be separately considered. §1. Of the lender of money. To make la valid tender the following requisites are necessary: 1. It must be made by a person capable of paying: for if it be made by a stranger without the consent of the debtor, it will be insufficient. Cro. Eliz. 48, 132; 2 M. & S. 86; Co. Lit. 206.
3. - 2. It must be made to the creditor having capacity to receive it, or to his authorized agent. 1 Camp. 477; Dougl. 632; 5 Taunt. 307; S. C. 1 Marsh. 55; 6 Esp. 95; 3 T. R. 683; 14 Serg. & Rawle, 307; 1 Nev. & M. 398; S. C. 28 E. C. L. R. 324; 4 B. & C. 29 S. C. 10 E. C. L. R. 272; 3 C. & P. 453 S. C. 14 E. C. L. R. 386; 1 M. & W. 310; M. & M. 238; 1 Esp. R. 349 1 C. & P. 365
4. - 3. The whole sum due must be offered, in the lawful coin of the United States, or foreign coin made current by law; 2 N. & M. 519; and the offer must be unqualified by any circumstance whatever. 2 T. R. 305; 1 Campb. 131; 3 Campb. 70; 6 Taunt. 336; 3 Esp. C. 91; Stark. Ev. pt. 4, page 1392, n. g; 4 Campb. 156; 2 Campb. 21; 1 M. & W. 310. But a tender in bank notes, if not objected to on that account, will be good. 3 T. R. 554; 2 B. & P. 526; 1 Leigh's N. P. c. 1, S. 20; 9 Pick. 539; see 2 Caines, 116; 13 Mass. 235; 4 N. H. Rep. 296; 10 Wheat 333. But in such case, the amount tendered must be what is due exactly, for a tender of a five dollar note, demanding change, would not be a good tender of four dollars. 3 Campb. R. 70; 6 Taunt. R. 336; 2 Esp. R. 710; 2 D. & R. 305; S. C. 16 E. C. L. R. 87. And a tender was held good when made by a check contained in a letter, requesting a receipt in return which the plaintiff sent back demanding a larger sum, without objecting to the nature of the tender. 8 D. P. C. 442. When stock is to be tendered, everything must be done by the debtor to enable him to transfer it, but it is not absolutely requisite that it should be transferred. Str. 504, 533, 579 .
5. - 4. If a term had been stipulated in favor of a creditor, it must be expired; the offer should be made at the time agreed upon for the performance of the contract if made afterwards, it only goes in mitigation of damages, provided it be made before suit brought. 7 Taunt. 487; 8 East, R. 168; 5 Taunt. 240; 1 Saund. 33 a, note 2. The tender ought to be made before day-light is entirely gone. 7 Greenl. 31.
6. - 5. The condition on which the debt was contracted must be fulfilled.
7. - 6. The tender must be made at the place agreed upon for the payment, or, if there be no place appointed for that purpose, then to the creditor or his authorized agent. 8 John. 474; Lit. Sel. Cas. 132; Bac. Ab. h. t. c.
8. When a tender has been properly made, it is a complete defence to the action but the benefit of a tender is lost, if the creditor afterwards demand the thing due from the debtor, and the latter refuse to pay it. Kirby, 293.
9. - §2. Of the tender of specific articles. It is a rule that specific articles maybe tendered at some particular place, and not, like money, to the person of the creditor wherever found. When no place is expressly mentioned in the contract, the place of delivery is to be ascertained by the intent of the parties, to be collected from the nature of the case and its circumstances. If, for example, the contract is for delivery of goods from the seller to the buyer on demand, the former being the manufacturer of the goods or a dealer in them, no place being particularly named, the manufactory or store of the seller will be considered as the place intended, and a tender there will be sufficient. When the specific articles are at another place at the time of sale, that will be the place of delivery. 2 Greenl. Ev. §609 4 Wend. 377; 2 Applet. 325.
10. When the goods are cumbrous, and the place of delivery is not designated, nor to be inferred from the circumstances, it is presumed that it was intended that they should be delivered at any place which the creditor might reasonably appoint; if the creditor refuses, or names an unreasonable place, the debtor may select a proper place, and having given notice to the creditor, deliver the goods there. 2 Kent, Comm. 507; 1 Greenl. 120; Chip. on Contr. 51 13 Wend. 95; 2 Greenl. Ev. §610. Vide, generally, 20 Vin., Ab. 177; Bac. Ab. h. t.; 1 Sell. 314; Com. Dig. Action upon the case upon Assumpsit, H 8-Condition, L 4 Pleader, 2 G 2-2 W, 28,49-3 K 23-3 M 36; Chipm, on Contr. 31, 74; Ayl. Pand. B. 4, t. 29; 7 Greenl. 31 Bouv. Inst. Index, h. t.
TENEMENT, estates. In its most extensive signification tenement comprehends every thing which may be holden, provided it be of a permanent nature; and not only lands and inheritances which are holden, but also rents and profits a prendre of which a man has any frank tenement, and of which he may be seised ut de libero tenemento, are included under this term. Co. Litt. 6 a; 1 Tho. Co. Litt. 219; Pork. s. 114; 2 Bl. Com. 17. But the word tenements simply, without other circumstances, has never been construed to pass a fee. 10 Wheat. 204. In its more confined and vulgar acceptation, it means a house or building. Ibid. an 1 Prest. on Est. 8. Vide 4 Bing. 293; S C. l1 Eng. C. L. Rep. 207; 1 T. R. 358; 3 T. R. 772; 3 East, R. 113; 5 East, R. 239; Burn's Just. Poor, 525 to 541; 1 B. & Adolph. 161; S. C. 20 Engl. C. L. Rep. 36 8; Com. Dig. Grant, E 2; Trespass, A 2; Wood's Inst. 120; Babington on Auctions, 211, 212.
TENENDAS, Scotch law. The name of a clause in charters of heritable rights which derives its name from its first words tenendus praedictas terras, and expresses the particular tenure by which the lands are to be holden. Ersk. Prin. B. 2, t. 3, n. 10.
TENENDUM, conveyancing. This is a Latin word, which signifies to hold.
2. It was formerly that part of a deed which was used to express the tenure by which the estate granted was holden; but since all freehold tenures were converted into socage, the tenendum is of no further use even in England, and is therefore joined to the habendum in this manner, "to have and to hold." The words "to hold" have now no meaning in our deeds. 2 Bl. Com. 298. Vide Habendum.
TENERI, contracts. That part of a bond where the obligor declares himself to be held and firmly bound to the obligee, his heirs, executors, administrators and assigns, is called the teneri. 3 Call, 350.
TENNESSEE. The name of one of the new states of the United States of America. This state was admitted into the Union by virtue of the "act for the admission of the state of Tennessee into the Union," approved June 1, 1796, 1 Story's L. IT. S. 450, which recites and enacts as follows:
2. Whereas, by the acceptance of the deed of cession of the state of North Carolina, congress are bound to lay out, into one or more states, the territory thereby ceded to the United States:
3. - §1. Be it enacted, &c., That the whole of the territory ceded to the United States by the state of North Carolina, shall be one state, and the same is hereby declared to be one of the United States of America, on an equal footing with the original states in all respects whatever, by the name and title of the state of Tennessee. That, until the next general census, the said state of Tennessee shall be entitled to one representative in the house of representatives of the United States; and, in all other respects, as far as they may be applicable, the laws of the United States shall extend to, and have force in, the state of Tennessee, in the same manner as if that state had originally been one of the United States.
4. The constitution was adopted on the sixth day of February, 1796; and amended by a convention which sat at Nashville, on the 30th day of August, 1834. The powers of the government are divided into three distinct departments; the legislative, executive, and judicial. Art. 2, 1.
5. - 1st. The legislative authority of the state is vested in a general assembly, which consists of a senate and house of representatives, both dependent on the people.
6. - 1. The senate will be considered with reference to the qualifications of the electors; the qualifications of the members; the number of members; the length of time for which they are elected; and, the time of their election. 1. Every free white man of the age of twenty-one years, being a citizen of the United States, and a citizen of the county wherein he may offer his vote six months next preceding the day of his election, shall be entitled to vote for members of the general assembly, and other civil officers, for the county and district in which he resides; provided, that no person shall be disqualified from voting on account of color, who is now, by the laws of this state, a competent witness in a court of justice against a white man. Art. 4, sect. 1. 2. No person shall be a senator, unless he be a citizen of the United States, of the age of thirty years, and shall have resided three years in this state, and one year in, the county or district, immediately preceding the election. Art. 2, s. 10. 3. The number of senators shall not exceed one-third of the number of representatives. Art. 2, s. 6. 4. Senators shall hold their office for the term of two years. Art. 2, s. 7. 5. Their election takes place on the first Thursday of August, 1835, and every second year thereafter. Art. 2 , s. 7.
7. - 2. The house of representatives will be considered in the same order which has been observed in considering the senate. 1. The qualifications of the electors of representatives are the same as those of senators. 2. To be elected a representative, the candidate must be a citizen of the United States, of the age of twenty-one years, and must have been a citizen of the state for three years, and a resident of the county he represents one year immediately preceding the election. Art. 2, s. 9. 3. The number of representatives shall not exceed seventy-five, until the population of the state shall exceed one million and a half; and shall never thereafter exceed ninety-nine. Art. 2, s. 5. 4. They are elected for two years. Art. 2, s. 7. 5. The election is to be at the same time as that of senators. Art. 2, s. 7.
8. - 2d. The supreme executive power of this state is vested in a governor. Art. 3, s. 2. 1. He is chosen by the electors of the members of the general assembly. Art. 3, s. 2. 2. He shall be at least thirty years of age, shall be a citizen of the United States, and shall have been a citizen of this state seven years next before his election. Id. sect. 3. He shall hold his office for two years, and until his successor shall be elected and qualified. He shall not be eligible more than six years in any term of right. Id. sect. 4. 3. He shall be elected by the electors of the members of the general assembly, at the times and places where they respectively vote for the members thereof. Id. s. 2. 4. He shall be commander-in-chief of the army and navy of the state, and of the militia, except when they are called into the service of the United States; shall have the power to grant reprieves and pardons, except in cases of impeachment; may convene the legislature on extraordinary occasions, by proclamation; take care that the laws be faithfully executed; from time to time give to the general assembly information of the state of the government, and recommend to their consideration such measures as he shall deem expedient may requite information in writing from the officers in the executive department, upon any subject relating to the duties of their respective offices. Id. s. 5 to 11. 5. He shall, at stated times, receive a compensation for his services, which shall not be increased nor diminished during the period for which he shall have been elected. Id. s. 7. 6. In case of the removal of the governor from office, or of his death, or resignation, the duties of the office shall devolve on the speaker of the senate; and in case of a vacancy in the office of the latter, on the speaker of the house of representatives. Id. s, 12.
9. - 3d. The judicial power of the state is vested, by the sixth article of the constitution, in one supreme court; in such inferior courts as the legislature shall, from time to time, ordain and establish, and the judges thereof; and in justices of the peace. The legislature may also vest such jurisdiction as may be deemed necessary in corporation courts.
10. - 1. The supreme court shall be composed of three judges; one of whom shall reside in each of the grand divisions of the state. The judges shall be thirty-five years of, age, and shall be elected for the term of twelve years. The jurisdiction of the supreme court shall be appellate only, under such restrictions and regulations as may, from time to time, be prescribed by law: but it may possess such other jurisdiction as is now conferred by law on the present supreme court. The concurrence of two of the judges shall be necessary to a decision. Said courts shall be held at one place, and at one place only, in each of the three grand divisions of the state.
11. - 2. The judges of such inferior courts as the legislature may establish, shall be thirty-five years of age, and shall be elected for eight years. The jurisdiction of such inferior courts shall be regulated by law. The judges shall not charge juries with regard to matters of fact, but may state the testimony and declare the law. They shall have power in all civil cases to issue writs of certiorari to remove any cause or transcript thereof, from any inferior jurisdiction, into said court, on sufficient cause, supported by oath or affirmation.
12. - 3. Judges of the courts of law, and equity are appointed by a joint vote of both houses of the general assembly; but courts may be established to be holden by justices of the peace.
13. - 4. The judges of the supreme court and inferior courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased nor diminished, during the time for which they are elected. They shall not be allowed any fees or perquisites of office, nor bold any other office of trust or profit under this state or the United States.
TENET. Which he holds. There are two ways of stating the tenure in an action of waste. The averment is either in the tenet and the tenuit; it has a refer-ence to the time of the waste done, and not to the time of bringing the action.
2. When the averment is in the tenet the plaintiff on obtaining a verdict, will recover the place wasted, namely, that part of the premises in which the waste was exclusively done, if it were done in a par only, together with treble damages. But when the averment is in the tenuit, the tenancy being at an end, he will have judgment for his damages only. 2 Greenl. Ev. 652.
TENOR, pleading. This word, applied to an instrument in pleading, signifies an exact copy; it differs from purport. (q. v.) 2 Phil. Ev. 99; 2 Russ. on Cr. 365; 1, Chit. Cr. Law, 235; 1 Mass. 203; 1 East, R. 180, and the cases cited in the notes. In chancery practice, by tenor is understood a certified copy of records of other courts removed into chancery by certiorari. Gresl. Ev. 309.
TENUIT. Which he held. When the tenancy is ended and the tenant is sued in an action of waste, the averment of tenure is in the tenuit. For a distinction between the averment in the tenet and tenuit, see 2 Greenl. Ev. §652, and Tenet.
TENURE, estates. The manner in which lands or tenements are holden. 2. According to the English law, all lands are held mediately or immediately from the king, as lord paramount and supreme proprietor of all the lands in the kingdom. Co. Litt. 1 b, 65 a; 2 Bl. Com. 105.
3. The idea of tenure; pervades, to a considerable degree, the law of real property in the several states; the title to land is essentially allodial, and every tenant in fee simple has an absolute and perfect title, yet in technical language, his estate is called an estate in fee simple, and the tenure free and common socage. 3 Kent, Com. 289, 290. In the states formed out of the North Western Territory, it seems that the doctrine of tenures is not in force, and that real estate is owned by an absolute and allodial title. This is owing to the wise provisions on this subject contained in the celebrated ordinance of 1787. Am. Jur. No. 21, p. 94, 5. In New York, 1 Rev. St. 718; Pennsylvania, 5 Rawle, R. 112; Connecticut, 1 Rev. L. 348 and Michigan, Mich. L. 393, feudal tenures have been abolished, and lands are held by allodial titles. South Carolina has adopted the statute, 12 C. II., c. 24, which established in England the tenure of free and common socage. 1 Brev. Dig. 136. Vide Wright on Tenures; Bro. h. t.; Treatises of Feuds and Tenures by Knight's service; 20 Vin Ab. 201; Com. Dig. h. t.; Bac. Ab. h. Thom. Co. Litt. Index, h. t.; Sulliv. Lect. Index, h. t.
TENSE. A term used in, grammar to denote the distinction of time.
2. The acts of a court of justice ought to be in the present tense; as, "praeceptum est," not "preaceptum fuit;" but the acts of, the party may be in the preterperfect tense, as "venit, et protulit hic in curia quandum querelam suam;" and the continuances are in the preterperfect tense; as, "venerunt," not "veniunt." 1 Mod. 81.
3. The contract of marriage should be made in language in the present tense. 6 Binn. Rep. 405. Vide 1 Saund. 393, n. 1.
TERCE, law of Scotland. A life-rent competent by law to widows who have not accepted of special provisions in the third part of the heritable subjects in which the hushand died infeft.
2. The terce takes place only where the marriage has subsisted for a year and day, or where a child has been born alive of it. No terce is due out of lands in which the hushand was not infeft, unless in case of a fraudulent omission. Cr. 423, §28; St. 2, 6, 16. The terce is not limited to lands, but extends to teinds, and to servitudes and other burdens affecting lands. Ersk. Pr. L. Scot. B. 2, t. 9, s. 26, 27; Burge on the Confl. of Laws, 429 to 435.
TERM, construction. Word; expression speech.
2. Terms or words are characters by which we announce our sentiments, and make known to others things with which we are acquainted. These must be properly construed or interpreted in order to understand the parties using them. Vide Construction; Interpretation; Word.
TERM, contracts. This word is used in the civil, law to denote the space of time granted to the debtor for discharging his obligation; there are express terms resulting from the positive stipulations of the agreement; as, where one undertakes to pay a certain sum on a certain day and also terms which tacitly result from the nature of the things which are the object of the engagement, or from the place where the act is agreed to be done. For instance, if a builder engage to construct a house for me, I must allow a reasonable time for fulfilling his engagement.
2. A term is either of right or of grace; when it makes part of the agreement and is expressly or tacitly included in it, it is of right when it is not part of the agreement, it is of grace; as if it is not afterwards granted by the judge at the requisition of the debtor. Poth. on Oblig. P. 2, c. 3, art. 3; 1 Bouv. Inst. n. 719 et seq.
TERM, estates. The limitation of an estate, as a term for years, for life, and the like. The word term does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire during the continuance of the time, as by surrender, forfeiture and the like. 2 Bl. Com. 145; 8 Pick. R. 339.
TERM, practice. The space of time during which a court holds a session; sometimes the term is a monthly, at others it is a quarterly period, according to the constitution of the court.
2. The whole term is considered as but one day so that the judges may at any time during the term, revise their judgments. In the computation of the term all adjournments are to be included. 9 Watts, R. 200. Courts are presumed to know judicially when their terms are required to be held by public law. 4 Dev. R. 427. See, 1 generally, Peck, R. 82; 6 Yerg. R. 395; 7 Yerg. R. 365; 6 Rand. R. 704; 2 Cowen, R. 445; 1 Cowen, R. 58; 5 Binn. R. 389; 4 S. & R. 507 5 Mass. R. 195, 435.
TERM ATTENDANT ON THE INHERITANCE. This phrase is used in the English courts of equity, to signify that when a term has been created for a particular purpose, which is satisfied, and the instrument by which it is created does not provide for a cesser of the term, on the happening of the event, the benefit in it becomes subject to the rules of equity, and must be moulded and disposed of according to the equitable interests of all persons having claims upon the inheritance; and, when the purposes of the trust fire satisfied, the ownership of the term belongs in equity, to the owner of the inheritance, whether de-clared by the original conveyance to attend it or not.
2. Terms attendant on the inherit ance are but little known in the United States. 1 Hill. Ab. 243.
TERM PROBATORY. A probatory term is the time during which evidence may be taken in a cause. Vide Probatory term.
TERM FOR YEARS. An estate for years, (q. v.) and the time during which such estate is to be beld, are each called a term; hence the term may expire before the time, as by a surrender. Co. Litt. 45. If, for example, a conveyance be made to Peter for three years, and after the expiration of the said term to Paul for six, and Peter surrenders or forfeits his term after one year, Paul's estate takes effect immediately; if, on the contrary, the language had been after the expiration of the said time, or of the said three years, the result would have been different, and Paul's estate would not have taken effect till the end of such time, notwithstanding the forfeiture or surrender.
2. Whatever be its duration, a term for years is less than an estate for life. If, therefore, the same person have a term for years and an estate for life immediately succeeding it, the term is merged; but if the order of the estates be reversed, that is, if the greater precede the less, there is no merger. Co. Litt. 54 b; Vin. Ab. Merger, F 4 and G 13; Godb. 51; Biss. on Est. c. 8, s. 1, n. 3, p. 186. Vide Estate for years; Leases.
TERMINUM. In the civil law, says Spelman, this word signifies a day set to the defendant, and, in that sense, Bracton, Glanville and some others sometimes use it. Reliquiae Spelmanianae, p. 71; Beames' Gl. 27 n.
TERMINUS A QUO. The starting point of a private way is so called. Hamm. N. P. 196.
TERMINUS AD QUEM. The point of termination of a private way is so called.
TERMOR. One who holds lands and tenements for a term of years or, life. Litt. sect. 100; 4 Tyr. 561.
TERRE-TENANT, or improperly terre-tenant. One who has the actual possession of land; but in a more technical sense, he who is seised of the land; and, in the latter sense the owner of the land, or the person seised, is the terre-tenant, and not the lessee. 4 W. & S. 256; Bac. Ab. Uses and Trusts, in pr. It has been holden that mere occupiers of the land are not terre-tenants. Bee 16 S. & R, 432; 3 Penna. 229; 2 Saund. 7, n. 4; 2 Bl. Com. 91, 328.
TERRIER, Engl. Iaw. A roll, catalogue or survey of lands, belonging either to a single person or a town, in which are stated the quantity of, acres, the names of the tenants, and the like.
2. By the ecclesiastical law an inquiry is directed to be made from time to time, of the temporal rights of the clergyman of every parish, and to be returned into the registry of the bishop: this return is denominated a terrier. 1 Phil. & Am. Ev. 602, 603.
TERRITORIAL COURTS. The courts established in the territories of the United States. Vide Courts of the United States.
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehen-sionem. De Sacris Eccles. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
2. The constitution of the United States, art. 4, s. 3, provides, that "the congress shall have power to dispose of, and make all needful rules and regu-lations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state."
3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story's L. U. S. 2073, under which any part of it has been settled. Story on the Const. §1322; Rawle on the Const: 237; 1 Kent's Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.
TERROR. That state of the mind which arises from the event or phenomenon that may serve as a prognostic of some catastrophe affright from apparent danger.
2. One of the constituents of the offence of riot is that the acts of the persons engaged in it should be to the terror of the people, as a show of arms, threatening speeches, or turbulent gestures; but it is not requisite, in order to constitute this crime, that personal violence should be committed. 3 Camp. R. 369; 1 Hawk. P. C. c. 65, s. 5; 4 C. & P. 373. S. C. 19 E. C. L. R. 425 4 C. & P. 538; S. C. 19 E. C. L. R. 616. Vide Rolle's R. 109; Dalt. Just. c. 186; 19 Vin. Ab. Riots, A 8.
3. To constitute a forcible entry, 1 Russ. Cr. 287, the act must be accom-panied with circumstances of violence or terror; and in order to make the crime of robbery, there must be violence or putting in fear, but both these circumstances need not concur. 4 Binn. R. 379. Vide Riot; Robbery; Putting in fear.
TERTIUS INTERVENIENS, civil law. One, who claiming an interest in the subject or thing in dispute in action between other parties, asserts his right to act with the plaintiff, to be joined with him, and to recover the matter in dispute because he has an interest in it or to join the defendant, and with him, oppose the interest of the plaintiff, which it is his interest to defeat. He differs from the intervener or he who interpleads in equity. 4 Bouv. Inst. n. 3819, note.
TEST. Something by which to ascertain the truth respecting another thing. 7 Penn. St. Rep. 428; 6 Whart. 284. Vide Religious Test.
TESTACY. The state or condition of dying after making a will, which was valid at the time of testator's death.
TESTAMENT, civil law. The appointment of an executor or testamentary heir, according to the formalities prescribed by law. Domat, Liv. 1, tit. 1, s. 1.
2. At first there were only two sorts of testaments among the Romans that called calatis comitiis, and another called in procinctu. (See below.) In the course of time these two sorts of testament having become obsolete, a third form was introduced, called per aes et libram, which was a fictitious sale of the inheritance to the heir apparent. The inconveniences which were experienced from these fictitious sales again changed the form of testaments; and the praetor introduced another which required the seal of seven witnesses. The emperors having increased the solemnity of those testaments, they were called written or solemn testaments, to distinguish them from nuncupative testaments which could be made without writing. Afterwards military testaments were introduced, in favor of soldiers actually engaged in military service.
3. Among the civilians there are various kinds of testaments, the principal of which are mentioned below.
4. A civil testament is one made according to all the forms prescribed by law, in contradistinction to a military testament, in making which some of the forms may be dispensed with. Civil testaments are more ancient than military ones; the former were in use during the time of Romulus, the latter were introduced during the time of Coriolanus. See Hist. de la Jurisp. Rom. de M. Terrason, p. 119.
5. A common testament is one which is made jointly by several persons. Such testaments are forbidden in Louisiana, Civ. Code of Lo. art. 1565, and by the laws of France, Code Civ. 968, in the same words, namely, "A testament cannot be made by the same act, by two or more persons, either for the benefit of a third person, or under the title of a reciprocal or mutual disposition."
6. A testament calatis comitiis, or made in the comitia, that is, the assembly of the Roman people, was an ancient manner of making wills used in times of peace amonn the Romans. The comitia met twice a year for this purpose. Those who wished to make such testaments caused to be convoked the assembly of the people by these words, calatis comitiis. None could make such will's that were not entitled to be at the assemblies of the people. This form of testament was repealed by the law of the Twelve Tables.
7. Testament ab irato, a term used in the civil law. A testament ab irato, is one made in a gust of passion or hatred against the presumptive heir rather than from a desire to benefit the devisee. When the facts of unreasonable anger are proved, the will is annulled as unjust, and as not having been freely made. Vide Ab irato.
8. A mystic testament is also called a solemn testament, because it requires more formality than a nuncupative testament; it is a form of making a will, which consists principally in enclosing it in an envelope and sealing it in the presence of witnesses.
9. This kind of testament is used in Louisiana. The following are the provisions of the civil code of that state on the subject, namely: the mystic or secret testament, otherwise called the close testament, is made in the following manner: the testator must, sign his dispositions, whether he has written. them himself, or has caused them to be written by another person. The paper containing, those dispositions, or the paper serving as their envelope, must be closed and sealed. The testator shall present it thus closed and sealed to the notary and to witnesses, or he shall cause it to be and sealed in their presence; then he shall declare to the notary, in the presence of the witnesses, that that paper contains his testament written by himself, or by another by his direction, and signed by him, the testator. The notary shall then draw up the act of superscription, which shall be written on that paper, or on the sheet that serves as its envelope, and that act shall be signed by the testator, and by the notary and the witnesses. Art. 1577, 5 M. R. 1 82. All that is above prescribed shall be done without interruption or turning aside to other acts; and in case the testator, by reason of any hindrance that has happened since the signing of the testament, cannot sign the act of superscription, mention shall be made of the declaration made by him thereof; without its being necessary, in that case, to increase the number of witnesses. Art. 1578. Those who know not how, or are not able to write, and those who know not how, or are not able to sign their names, cannot make dispositions in the form of the mystic will. Art. 1579. If any one of the witnesses to the act of superscription knows not how to sign, express mention shall be made thereof. In all cases the act must be signed by at least two witnesses. Art. 1580.
10. Nuncupative, testament, a term used in the civil law. A numcupative testament was one made verbally, in the presence of seven witnesses; it was not necessary that it should have been, in writing; the proof of it was by parol evidence.
11. In Louisiana, testaments, whether nuncupative or mystic, must be drawn up in writing, either by the testator himself, or by some other person under his dictation. Civil Code of Lo. art. 1568. The custom of making verbal statements, that is to say, resulting from the mere deposition of witnesses, who were pregent when the testator made known to them his will, without his having committed it, or caused it to be committed to writing, is abrogated. Id. art. 1569. Nuncupative testaments may be made by public act, or by act under private signature. Id. art. 1570. See Will, nuncupative.
12. Olographic testament, a term used in the civil law. The olographic tes-tament is that which is written wholly by the testator himself. In order to be valid, it must be entirely written, dated, and signed by the hand of the tes-tator. It is subject to no other form. See Civil Code of Lo. art.
TESTAMENTARY. Belonging to a testament; as a testamentary gift; a testamen-tary guardian, or one appointed by will or testament; letters testamentary, or a writing under seal given by an officer lawfully authorized, granting power to one named as executor to execute a last will or testament.
TESTATE. One who dies having made a testament; a testator. This word is used in this sense, in the act of the legislature of Pennsylvania, entitled "An act relative to dower and for other purposes." Sect. 2, 5 Sm. Laws, 257.
TESTATOR. One who has made a testament or will.
2. In general, all persons may be testators. But to this rule there are various exceptions. First, persons who are deprived of understanding cannot make wills; idiots, lunatics and infants, are among this class. Secondly, persons who have understanding, but being under the power of others, cannot freely exercise their will; and this the law presumes to be the case with a married woman, and, therefore, she cannot make a will without the express consent of her hushand to the particular will. When a woman makes a will under some general agreement on the part of the hushand that she shall make a will, the instrument is not properly a will, but a writing in the nature of a will or testament. Thirdly, persons who are deprived of their free will cannot make a testament; as, a person in duress. 2 Bl. Com. 497; 2 Bouv. Inst. n. 2102, et seq. See Devisor; Duress; Feme covert;, Idiot; Influence; Parties to Contracts; Testament; Wife; Will.
TESTATRIX. A woman who makes a will or testament, is so called.
TESTATUM, practice. The name of a writ which is issued by the court of one county, to the sheriff of another county, in the same state, when the defen-dant cannot be found in the county where the court is located; for example, after a judgment has been obtained, and a ca. sa. has been issued, which has been returned non est inventus, a testatum ca. sa. may be issued to the sheriff of the county where the defendant is. Vide 20 Vin. Ab. 259; 7 Com. Dig. 424.
TESTATUM, conveyancing. That part of a deed which commences with the words "this indenture witnesseth."
TESTE, practice. The teste of a writ is the concluding clause, commencing with the word witness, &c.
2. The act of congress of May 8, 1792, 1 Story's Laws U. S. 257, directs that all writs and process issuing from the supreme or a circuit court, shall bear teste of the chief justice of the supreme court, or if that office be vacant, of the associate justice next in precedence; and that all writs or process issuing from a district court, shall hear teste of the judge of such court, or, if the said office be vacant, of the clerk thereof. Vide Serg. Const. Law, Index, h. t.; 20 Vin. Ab. 262; Steph. Plead. 25.
TESTES. Witnesses.
TO TESTIFY. To give evidence according to law; the examination of a witness who declares his knowledge of facts.
TESTIMONIAL PROOF, civ. law. This word is used in the same sense as we use parol evidence, and, in contradistinction to literal proof, which is written evidence.
TESTIMONY, evidence. The statement made by a witness under oath or affirmation. Vide Bill to perpetuate testimony.
TESTMOIGNE. This is an old and barbarous French word, signifying in the old books, evidence. Com. Dig. h. t.
TEXAS. The name of one of the new states of the United, States of America. Texas was an independent republic. By the joint resolution of congress of March 1, 1845, congress gave consent that the republic of Texas might be erected into a new state, to be called the state of Texas, with a republican form of government to be adopted by the people. And by the joint resolution of congress of the 29th day of December, 1845, the state of Texas was admitted into the union on an equal footing with the original states in all respects whatever.
2. The constitution of the state was adopted in convention by the deputies of the people of Texas, at the city of Austin the 27th day of August, 1845.
3. By the second article, it is provided that the powers of the government of the state of Texas shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judicial, to another; and no person, or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
4. - §1. In considering the legislative power, it will be proper to consider, 1. The qualification of voters. 2. The rights of members of the legislature. 3. The senate. 4. The house of representatives.
5. - 1. By sections. 1st and 2d, it is declared that every free male person who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, or who is, at the time of the adoption of this constitution by the congress of the United States, a citizen of the republic of Texas, and shall have resided in this state one year next preceding an election, and the last six months within the district, county, city, or town in which he offers to vote, (Indians not taxed, Africans, and the descendants of Africans, excepted,) shall be deemed a qualified elector and should such qualified elector happen to be in any other county situated in the district in which he resides at the time of an election, he shall be permitted to vote for any district officer: Provided, That the qualified electors shall be permitted to vote anywhere in the state for state officers: And provided further, That no soldier, seaman, or marine, in the army or navy of the United States, shall be entitled to vote at any election created by this constitution.
Sect. 2. All free male persons over the age of twenty-one years, (Indians not taxed, Africans, and descendants of Africans, excepted,) who shall have resided six months in Texas, immediately preceding the acceptance of this constitution by the congress, of the United States, shall be deemed qualified electors.
6. - 2. The powers of the two houses are defined by the following sections of the third article, namely,
Sec. 12. The house of representatives, when assembled, shall elect a speaker and its other officers; and the senate shall choose a president for the time being, and its other officers. Each house shall judge of the qualifications and elections of its own members; but contested elections shall be determined in such manner as shall be directed by law. Two-thirds of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such pen alties as each house may provide.
Sec. 13. Each house may determine the rules of its own proceedings; punish members for disorderly conduct; and with the consent of two-thirds, expel a member, but not a second time for the same offence.
Sec. 14. Each house shall keep a journal of its own proceedings, and publish the same; and the yeas and nays of the members of either house on any question shall, at the desire of any three members present, be entered on the journals.
Sec. 16. Senators and representatives shall, in all cases, except in treason, felony, or breach of the peace, be privileged from arrest during the session of the legislature; and, in going to and returning from the same, allowing one day for every twenty miles such member may reside from the place at which the legislature is convened.
Sec. 17. Each house may punish, by imprisonment during the session, any person, not a member, for disrespectful or disorderly conduct in its presence, or for obstructing,any of its proceedings, provided such imprisonment shall not, at any one time, exceed forty-eight hours.
Sec. 18. The doors of each house shall be kept open.
7. - 3. The senate will be considered by taking a view, 1. Of the qualifications of senators. 2. Of the time of their election. 3. Of the length of their service. 4. By whom chosen.
8. - 1st. The 11th section of the 3d article of the constitution directs that no person shall be a senator unless he be a citizen of the United States, or at the time of the acceptance of this constitution by the congress of the United States a citizen of the republic of Texas, and shall have been an inhabitant of this state three years next preceding the election; and the last year thereof a resident of the district for which he shall be chosen, and have attained the age of thirty years.
9. - 2d. Elections are to be held at such times and places as are now or may hereafter be designated by law. Art. 3, s. 7.
10. - 3d. Senator; are duly elected for four years.
11. - 4th. Senators are chosen by the qualified electors.
12. - 1. The house of representatives will be considered in the same order which has been observed in speaking of the senate.
13. - 1st. By the 6th section of the 3d article of the constitution, it is declared that no person shall be a reprsentative unless he be a citizen of the United States, or at the time of the adoption of this constitution a citizen of the republic of Texas, and shall have been an inhabitant of this state two years next preceding his election, and the last year thereof a citizen of the county, city, or town for which he shall be chosen, and shall have attained the age of twenty-one years at the time of his election.
14. - 2d. Elections are to be held at such times and places as 'are now or may hereafter be designated by law. Art. 3, s. 7.
15. - 3d. The members of the house of representatives hold their office for two, years from the day of the general election; and the sessions of the legislature shall be biennial, at such times as shall be prescribed by law. Art. 3, s. 6.
16. - 4th. The members of the house of representatives shall be chosen by the qualified electors. Art. 3, s. 5.
17. - §2. The judicial power is vested in one supreme court, in district courts, and in such inferior courts as the legislature may from time to time ordain and establish; and such jurisdiction may be vested in corporation courts. as may be deemed necessary, and be directed by law. Art. 4, s. 1. Each of these will be separately considered.
18. - 1. The supreme court will be considered by, 1. Taking a view of the appointment of the judges, and the time during which they hold their office. 2. The organization of the court. 3. Its jurisdiction.
19. - 1st. The governor shall nominate, and, by and with the advice and consent of two-thirds of the senate, shall appoint the judges of the supreme and district courts, and they shall hold their offices for six years. Art. 4, s. 5.
20. - 2d. The supreme court shall consist of a chief justice and two associates, any two of whom shall form a quorum. 4, s. 2. It appoints its own clerk.
21. - 3d. The 3d section of the 4th article of the constitution declares that the supreme court shall have appellate jurisdiction only, which shall be co-extensive with the limits of the state; but in criminal cases, and in appeals from interlocutory judgments, with such exceptions and under such regu-lations as the legislature shall make; And the supreme court and judges thereof shall have power to issue the writ of habeas corpus, and, under such regu-lations as may be prescribed by law, may issue Writs of mandamus, and such other writs as, shall be necessary to enforce its own jurisdiction; and also compel a judge of the district court to proceed to trial and judgment in a cause; and the supreme court shall hold its sessions once every year, between the months of October and June inclusive, at not more than three places in the state.
22. - 2. The circuit courts will be considered in the same order observed with regard to the supreme court.
23. - 1st. Circuit court judges are appointed in the same way as judges of the supreme court, and hold their office for the same time.
24. - 2d. By the 6th section of the 4th article of the constitution, if is directed that the state shall be divided into convenient judicial districts. For each district there shall be appointed a Judge, who shall reside in the same, and hold the courts at one place in each county, and at least twice in each year, in such manner as may be prescribed by law. The clerk is elected by the qualified voters of members of the legislature. Art. 4, s. 11.
24. - 3d. By the tenth section of the fourth article, jurisdiction is given to the district courts in these words: The district court shall have original jurisdiction of all criminal cases, of all suits in bebalf of the state to recover penalties, forfeitures and escheats, and of all cases of divorce, and of all suits, complaints, and pleas whatever, without regard to -any distinction between law and equity, when the matter in controversy shall be valued at or amount to one hundred dollars, exclusive of interest; and the said courts, or the judges thereof, shall have power to issue all writs necessary to enforce their own jurisdiction, and give them a general superintendence and control over inferior jurisdictions; and in the trial of all criminal cases, the jury trying the same shall find and assess the amount of punishment to be inflicted, or fine imposed; except in capital cases, and where the. punishment or fine imposed shall be specifically imposed by law.
25. - §3. The supreme executive power is vested in a governor. We will consider, 1. His qualifications. 2. By whom elected. 3. Duration of his office. 4. His power and duty.
26. - 1st. He must be at least thirty years of age, be a citizen of the United States, or a citizen of Texas, at the time of the adoption of the constitution, and shall have resided in the same three years next immediately preceding his election. Art. 5, s. 4.
27. - 2d. The governor shall be elected by the qualified electors of the state, at the time and places of elections for members of the legislature. Art. 5, s. 2.
28. - 3d. He holds his office for two years from the regular time of installation, and until his successor shall have been duly qualified, but shall not be eligible for more than four years in any term of six years. Art. 5, s. 4.
29. - 4th. He is commander-in-chief of the army and navy of the state - may require information from officers of the executive department - may convene the legislature, or adjourn the same, when the houses cannot agree - may recommend measures to the legislature - shall cause the laws to be executed. Art. 5.
30. There shall be a lieutenant governor, who shall be chosen at every election for governor, by the same persons and in the same manner, continue in office for the same time, and, possess the same qualifications. In voting for governor and lieutenant-governor, the electors shall distinguish for whom they vote as governor, and for whom as lieutenant-governor. The lieutenant governor shall, by virtue of his office, be president of the senate, and have, when in committee of the whole, a right to debate and vote on all questions, and when the senate is equally divided, to give the casting vote. In case of the death, resignation, removal from office, inability or refusal of the governor to serve or of his impeachment or absence from the state, the lieutenant governor shall exercise the power and authority appertaining to the office of governor until another be chosen at the periodical election and be duly qualified or until the governor impeached, absent, or disabled, shall be acquitted, return, or his disability be removed. Art. 5, s. 12.
THAINLAND, old Eng. law. The land which was granted by the Saxon kings to their thains or thanes was so called. Crabb's C. L. 10.
The name of a coin. The thaler of Prussia and of the northern states of Germany is deemed as money of account, at the custom-house, to be of the value of sixty-nine cents. Act of May 22, 1846.
2. The thaler of Bremen, of seventy-two grotes, is deemed of the value of seventy-one cents. Act of March 3, 1843.
THEFT, crimes. This word is sometimes used as synonymous with larceny, (q. v.) but it is not so technical. Ayliffe's Pand. 581 2 Swift's Dig. 309.
2. In the Scotch law, this is a proper and technical word, and signifies the secret and felonious abstraction of the property of another for sake of lucre, without his consent. Alison, Princ. Cr. Law of Scotl. 250.
THEFT-BOTE. The act of receiving a man's goods from the thief, after they had been stolen by him, with the intent that he shall escape punishment.
2. This is an offence punishable at common law by fine and imprisonment. Hale's P. C. 130. Vide Compounding a felony.
THEOCRACY. A species of government which claims to be immediately directed by God.
2. La religion qui, dans l'antiquite, s'associa souvent au despotisms, pour regner. par son bras ou a son ombrage, a quelquefois tents de regner seule. Clest ce qu'elle appelait le regne de Dieu, la thiocratie. Matter, De l'influence des Moeurs sur les lois, et de l'influence dos Lois sur les moeurs, 189. Religion, which in former tinies, frequently associated itself with despotism, to reign, by its power, or under its shadow, has sometimes attempted to reign alone, and this she has called the reign of God, theocracy.
THIEF, crimes. One who has been guilty of larceny or theft.
THING ADJUDGED. That which has been decided by a final judgment, by a tribu-nal of competent jurisdiction, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for the appealing has elapsed, or because it has been confirmed on the appeal. Vide res judicata.
2. The Roman law agrees with ours, for it requires a final judgment or sentence before the decision acquires the force of the thing adjudged. Dig. 42, 1; Code, 7, 52; Extravag. 2, 27.
THINGS. By this word is understood every object, except man, which may become an active subject of right. Code du Canton de Berne, art. 332. In this sense it is opposed, in the language of the law, to the word persons. (q. v.)
2. Things, by the common raw, are divided into, 1. Things real, which are such as are permanent, fixed and immovable, and which cannot be carried from place to place; they are are usually said to consist in lands, tenements and hereditaments. 2 Bl. Com. 16; Co. Litt. 4 a to 6 b. 2. Things personal, include all sorts of things movable which attend a man's person wherever he goes. Things personal include not only things movable, but also something more, the whole of which is generally comprehended under the name of chattels. Chattels are distinguished into two kinds, namely, chattels real and chattels personal. See Chattel.
3. It is proper to remark that sometimes it depends upon the destination of certain objects, whether they are to be considered personal or real property. See Dalloz, Dict. choses, art 1, §2. Destination; Fixtures; Mill.
4. Formerly, in England, a very low and contemptuous opinion was entertained of personal property, which was regarded as only a transient commodity. But of late years different ideas have been entertained of it; and the courts, both in that country, and in this, now regard a man's personal property in a light, nearly, if not quite equal to his realty; and have adopted a more enlarged and still Iess technical mode of considering the one than the other, frequently drawn from the rules which they found already established by the Roman law, wherever those rules appear to be well-grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times. 2 Bl. Com. 385.
5. By the Roman or civil law, things are either inpatrimonio, capable of being possessed by single persons exclusive of others; or extra patrimoiium, incapable of being so possessed.
9. Things in patrimonio are divided into corporeal and incorporeal, and the corporeal again into movable and immovable.
7. Corporeal things are those which are visible and tangible, as lands, houses, horses, jewels, and the like; incorporeal are not the object of sensation, but are the creatures of the mind, being rights issuing out of a thing corporeal, or concerning or exercisable within the same; as, an obligation, a hypothecation, a servitude, and, in general, that which consists only in a certain right. Domat, Lois Civ. Liv. Prel. t. 31 s. 2, §3; Poth. Traite dos Choses, in princ.
8. Corporeal things are either movable or immovable. The movable are those which have been separated from the earth, as felled trees, or gathered fruits, or stones dug out from quarries or those which are naturally separated, as an-imals. Immovable things are those parts of the surface of the earth, in what-ever manner thev way be distinguished, either as building;, woods, meadows, fields,or otherwise, and to whomsoever they may belong. Under the name of immovables is included everything which adheres to the surface of the earth, either by its nature, as trees; or which has been erected by the hands of man, as houses and other buildings, although, by being separated, such things way become movables. Domat, Lois Civ. Liv. Prel. tit. 3, s. 1, §5 and 6. See Movables; Immovables.
9. Things extra patrimonium are, 1. Common. 2. Public. 3. Res universitatis. 4. Res nullius.
10. - 1. Things common are, the heavens, light, air, and the sea, which cannot be appropriated by any man or set of men, so as to deprive others from the. use of them. Domat, Lois Civ. Liv. Prel. tit. 3, s. 1, §1; §1 lnst. de rer. div.; L. 2, §1, ff. de rer. div.; Ayliffe, Pand. B. 2, t. 1, in med.
11. - 2. Things public, res publicae, the property of which was in the state, and their use common to all the members of it, as navigable rivers, ways, bridges, harbors, banks, and the right of fishing.
12. - 3. Res universitatis, or things belonging to cities or bodies politic. Such things belong to the corporation or body politic in respect of the property of them; but as to their use, they appertain to those persons that are of the corporation or body politic: such may be theatres, market houses, and the like. They differ from things public, inasmuch as the latter belong to a nation. The lands or other revenue belonging to a corporation, do not fall under this class, but, are juris privati.
13. - 4. Res nullius, or things which are not the property of any man or number of men, are principally those of divine right; they are of three sorts: things sacred, things religious, and things sanct. Things sacred were those which were duly and publicly consecrated by the priests, as churches, their ornaments, &c. Things religious were those places which became so by burying in them a dead body, even though no consecration of these spots by a priest had taken place. Things sanct were those which by certain reverential awe arising from their nature, something augmented by religious ceremonies, were guarded and defended from the injuries of men; such were the gates and walls of a city, offences against which were capitally punished. 1 Bro. Civ. Law, B. 2, c. 1, p. 172.
See, in general, Domat, Lois Civ. Liv. Prel. tit. 3; 1 Bro. Civ. Law, B. 2, c. 1 Poth. Traite des Choses; Ersk. Pr. Law Scot. B. 2, tit. 1; Toullier, Droit Francais, Liv. 2, tit. 1 Ayliffe, Pand. B. 3, t. 1; Inst. 2, 1, 2 Dig. 1, 8 Bouv. Inst. Index, h. t.
THIRD PARTIES. This term includes all persons who are not parties to the contract, agrement or instrument of writing, by which their interest in the thing conveyed is sought to be affected. 1 N. S. 384. See also 2 L. R. 425 6 M. R. 528.
2. But it is difficult to give a very definite idea of third persons, for sometimes those who are not parties to the contract, but who represent the rights of the original parties, as executors, are not to be considered third person. See Duverg. tome 16, n. 34, 35, 36, et idem, tome 17, n. 190; 2 Bouv. Inst. n. 1335, et seq.
THIRLAGE, Scotch law. The name of servitude by which lands are astricted or thirled to a particular mill, and the possessors bound to grind their grain there, for the payment of certain multures and sequels as the agreed price of grinding. Ersk. Prin. B. 2, t. 9, n. 18.
THOROUGHFARE. A street or way so open that one can go through and get out of it without returning. It differs from a cul de sac, (q. v.) which is open only at one end.
2. Whether a street which is not a thoroughfare is a highway, seems not fully settled. See 1 Campb. 260; 5 Taunt. 137; 11 East, 376, n.; Hawk. P. C. B. 1, c. 76, s. 1; 5 Barn. & Ald. 456. See Dedication.
THOUGHT. The operation of the mind. No one can be punished for his mere thoughts however wicked they may be. Human laws cannot reach them, first, because they are unknown; and, secondly, unless made manifest by some action, they are not injurious to any one; but when they manifest themselves, then the act, which is the consequence, may be punished. Dig. 50 16, 225.
THREAD. A figurative expression used to signify the central line of a stream or water course. Harg. Tracts, 5; 4 Mason's Rep. 397; Holt's R. 490. Vide Filum aguae; Island; Water course; River.
THREAT, crim. law. A menace of destruction or injury to the lives or property of those against whom it is made.
2. Sending threatening letters to persons for the purpose of extorting money, is said to, be a misdemeanor at common law. Hawk. B. 1, c. 53, s. 1; 2 Russ. on Cr. 575; 2 Chit. Cr. L. 841; 4 Bl. Com. l26. To be indictable, the threat must be of a nature calculated to overcome a firm and prudent man. The party who makes a threat may be held to bail for his good behaviour. Vide Com. Dig. Battery, D; 13 Vin. Ab. 357.
THREAT, evidence. Menace.
2. When a confession is obtained from a person accused of crime, in consequence of a threat, evidence of such confession cannot be received, because, being obtained by the torture of fear, it comes in so questionable a shape, that no credit ought to be given to it; 1 Leach, 263; this is the general principle, but what amounts to a threat is not so easily defined. It is proper to observe, however, that the threat must be made by a person having authority over the prisoner, or by another in the presence of such authorized person, and not dissented from by the latter. 8 C. & P. 733. Vide Confession, and the cases there cited.
THROAT, med. jur. The anterior part of the neck. Dungl. plea. Diet. h. t.; Coop. Dict. h. t.; 2 Good's Study of Med. 302; 1 Chit. Med. Jur. 97, n.
2. The word throat, in an indictment which charged the defendant with murder, by "cutting the throat of the deceased," does not mean, and is not to be confined to that part of the neck which is scientifically called the throat, but signifies that which is commonly called the throat. 6 Carr. & Payne, 401; S. C. 25 Engl. Com. Law Rep. 458.
TICK, contracts. Credit; as, if a servant usually buy for the master upon tick, and the servant buy something without the master's order, yet, if the master were trusted by the trader, he is liable. 1 Show. 95; 3 Keb. 625; 10 Mod. 111; 3 Esp. R. 214; 4 Esp. R. 174.
TIDE. The ebb and flow of the sea.
2. Arms of the sea, bays, creeks, coves, or rivers, where the tide ebbs and flows, are public, and all persons may use the same for the purposes of navi-gation and for fishing, unless restrained by law. To give these rights at common law, the tide must ebb and flow: the flowing of the waters of a lake into a river, and their reflowing, being not the flux and reflux of the tides, but mere occasional and rare instances of a swell in the lake, and a setting up of the waters into the river, and the subsiding of such swells, is not to be considered an ebb and flow of the tide, so as to constitute a river technically navigable. 20 John. R. 98. See 17 John. R. 195; 2 Conn. R. 481.
3. In Pennsylvania, the common law principle, that the flux and reflux of the tide ascertain the character of the river, has been rejected. 2 Binn. R. 475. Vide Arm of the sea; Navigable river; Sea shore.
TIE. When two persons receive an equal number of votes at an election, there is said to be a tie.
2. In that case neither is elected. When the votes are given on any question to be decided by a deliberative assembly, and there is a tie, the question is lost. Vide Majority.
TIEL. An old manner of spelling tel. Such as nul tiel record, no such record.
TIEMPO INHABIL. A Spanish phrase used in Louisiana, to express a time when a man is not able to pay his debts.
2. A man cannot dispose of his property, at such a time, to the prejudice of his creditors. 4 N. S. 292; 3 Mart. Lo. R. 270; 10 Mart. Lo. R. 704.
TIERCE, measures. A liquid measure containing the third part of a pipe, or forty-two gallons.
TIGNI IMMITTENDI, civil law. The name of a servitude; it is the right of inserting a beam or timber from the wall of one house into that of a neighboring house, in order that it may rest on the latter, and that the wall of the latter may bear this weight. Dig. 8, 2, 36; Id. 8, 5, 14.
TIMBER TREES. According to Blackstone, oak, ash, elm, and such other trees as are commonly used for building, are considered timber. 2 Comm. 28. But it has been contended, arguendo, that to make it timber, the trees must be felled and severed from the stock. 6 Mod. 23 Stark on Slander, 79. Vide 12 Johns. R. 239; 2 Suppl. to Ves. jr.
TIME, contracts, evidence, practice. The measure of duration., It is divided into years, months. days, (q. v.) hours, minutes, and seconds. It is also divided into day and night. (q. v.)
2. Time is frequently of the essence of contracts and crimes, and sometimes it is altogether immaterial.
3. Lapse of time alone is often presumptive evidence of facts which are otherwise unknown; an uninterrupted enjoyment of certain rights for twenty or twenty-one years, is evidence that the party enjoying them is legally entitled to them; after such a length of time, the law presumes payment of a bond or other specialty. 10 S. & R. 63, 383; 3 S. & R. 493; 6 Munf. R. 532; 2 Cranch, R. 180; 7 Wheat. R. 535; 2 W. C. C R. 323; 4 John. R. 202; 7 John' R. 556; 5 Conn. 1; 3 Day 289; 1 McCord 145; 1 Bay, 482; 7 Wend. 94; 5 Verm. 236.
4. In the computation of time, it is laid down generally, that where the computation is to be made from an act done, the day when such act was done is included. Dougl. 463. But it will be excluded whenever such exclusion, will prevent a forfeiture. 4 Greenl. 298. Sed vide 15 Ves. 248; 1 Ball & B. 196. In general, one day is taken inclusively and the other exclusively. 2 Browne; Rep. 18. Vide Chitt. Bl. 140 n. 2; 2 Evans , Poth. 50; 13 Vin. Abr. 52, 499; 15 Vin. Ab. 554; 20 Vin. Ab. 266; Com. Dig. Temps; 1 Rop. Legacy, 518; 2 Suppl. to Ves. jr. 229; Graham's Pract. 185; 1 Fonbl. Equity, 430; Wright, R. 580; 7 John. R. 476; 1 Bailey, R. 89; Coxe, Rep. 363; 1 Marsh. Keny. Rep. 321; 3 Marsh. Keny. Rep. 448; 3 Bibb, R. 330; 6 Munf. R. 394; vide Computation.
TIME, pleading. The avertment of time is generally necessary in pleading; the rules are different, in different actions.
2. - 1. Impersonal actions, the pleadings must allege the time; that is, the day, month and year when each traversable fact occurred; and when there is occasion to mention a continuous act, the period of its duration ought to be shown. The necessity of laying a time extends to traversable facts only; time is generally considered immaterial, ana any time may be assigned to a given fact. This option, however, is subject to certain restrictions. 1st. Time should be laid under a videlicit, or the party pleading it will be required to, prove it strictly. 2d. The time laid should not be intrinsically impossible, or inconsistent with the fact to which it relates. 3d. There are some instances in which time forms a material point in the merits of the case; and, in these instances, if a traverse be taken, the time laid is of the substance of the issue, and must be strictly proved. With respect to all facts of this description; they must be truly stated, at the peril of a failure for variance; Cowp. 671: and here a videlicit will give no help. Id. 6 T. R 463; 5 Taunt. 2; 4 Serg. & Rawle, 576; 7 Serg. & Rawle, 405. Where the time needs not to be truly stated, (as is generally the case,) it is subject to a rule of the same nature with one that applies to venues in transitory matters, namely, that the plea and subsequent pleadings should follow the day alleged in the writ or declaration; and if in these cases no time at all be laid, the omission is aided after verdict or judgment by confession or default, by operation of the statute of jeofails. But where, in the plea or subsequent pleadings, the time happens to be material, it must be alleged, and there the pleader may be allowed to depart from the day in the writ and declaration.
3. - 2. In real or mixed actions, there is no necessity for alleging any particular day in the declaration. 3 Bl. Com. App. No. 1, §6; Lawes' Pl. App. 212; 3 Chit. Pl. 620-635; Cro. Jac. 311; Yelv. 182 a, note; 2 Chitt. Pl. 396, n. r; Gould, Pl. c. 3, §99, 100; Steph. Pl. 314; Com. Dig. Pleader, C 19.
4. - 3. In criminal pleadings, it is requisite, generally, to show both the day and the year on which the offence was committed; but the indictment will be good, if the day and year can be collected from the whole statement, though they be not expressly averred. Com. Dig. Indictm. G 2; 5 Serg. & Rawle, 315. Although it be necessary that a day certain should be laid in the indictment, the prosecutor may give evidence, of an offence committed, on any other day, previous to the finding of the indictment. 5 Serg. & Rawle, 316; Arch. Cr. Pl. 95; 1 Phil Evid. 203; 9 East, Rep. 157. This rule, however, does not authorize the laying of a day subsequent to the trial. Addis. R. 36. See generally Bouv. Inst. Index, h. t.
TIPPLING HOUSE. A place where spirituous liquors are sold and drunk in vio-lation of law. Sometimes the mere selling is considered as evidence of keeping a tippling house.
TIPSTAFF. An officer appointed by the marshal of the court of king's bench, to attend upon the judges with a kind of a rod or staff tipped with silver.
2. In the United States, the courts sometimes appoint an officer who is known by this name, whose duty it is to wait on the court and serve its process.
TITHES, Eng. law. A right to the tenth part of the produce of, lands, the stocks upon lands, and the personal industry of the inhabitants. These tithes are raised for the support of the clergy.
2. Fortunately, in the United States, the clergy can be supported by the zeal of the people for religion, and there are, no tithes. Vide Cruise, Dig. tit. 22; Ayliffe's Parerg. 504.
TITHING, Eng. law. Formerly a district containing ten men with their fam-ilies. In each tithing there was a tithing man whose duty it was to keep the peace, as a constable now is bound to do. St. Armand, in his Historical Essay on the Legislative Power of England, p. 70, expresses, an opinion that the tithing was composed not of ten common families, but of ten families of lords of a manor.
TITLE estates. A title is defined by Lord Coke to be the means whereby the owner of lands hath the just possession of his property. Co. Lit. 345; 2 Bl. Com. 195. Vide 1 Ohio Rep. 349. This is the definition of title to lands only.
2. There are several stages or degrees requisite to form a complete title to lands and tenements. 1st. The lowest and most imperfect degree of title is the mere possession, or actual occupation of the estate, without any apparent right to hold or continue such possession; this happens when one man disseises another. 2 Bl. Com. 195. 2dly. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself, but in another. This right of possession is of two sorts; an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Idem. 196. 3dly. The mere right of property, the jus proprietatis without either possession or the right of possession. Id. 197.
3. A title is either good, marketable, doubtful, or bad.
4. A good title is that which entitles a man by right to a property or estate, and to the lawful possession of the same.
5. A marketable title is one which a court of equity considers to be so clear that it will enforce its acceptance by a purchaser. The ordinary acceptation of the term marketable title, would convey but a very imperfect notion of its legal and technical import.
6. To common apprehension, unfettered by the technical and conventional distinction of lawyers, all titles being either good or bad, the former would be considered marketable, the latter non-marketable. But this is not the way they are regarded in courts of equity, the distinction taken there being not between a title which is absolutely good or absolutely bad, but between a title, which the court considers to be so clear that it will enforce its acceptance by a purchaser, and one which the court will not go so far as to declare a bad title, but only that it is subject to so much doubt that a purchaser ought not to be compelled to accept it. 1 Jac. & Walk. R. 568. In short, whatever may be the private opinion of the court, as to the goodness of the title yet if there be a reasonable doubt either as to a matter of law or fact involved in it, a purchaser will not be compelled to complete his purchase; and such a title, though it may be perfectly secure and unimpeachable as a holding title is said, in the current language of the day, to be unmarketable. Atkins on Tit.2.
7. The doctrine of marketable titles is purely equitable and of modern ori-gin. Id. 26. At law every title not bad is marketable. 6 Taunt. R. 263; 5 Taunt. R. 625; S. C. 1 Marsh., R. 258. See Dalzell v. Crawford, 2 Penn. Law Journ. 17.
8. A doubtful title is one which the court does not consider to be so clear that it will enforce its acceptance by a purchaser, nor so defective as to declare it a bad title, but only subject to so much doubt that a purchaser ought not to be compelled to accept it. 1 Jac. & Walk. R. 568; 9 Cowen, R. 344; vide Title, Marketable.
9. At common law, doubtful, titles are unknown; there every title must be either good or bad. Atkins on Tit. 17. See Dalzell v. Crawford, 2 Penn. Law Journ. 17.
10. A bad title is one which conveys no property to a purchaser of an estate.
11. Title to real estate is acquired by two methods, namely, by descent and by purchase. (See these words.)
12. Title to personal property may accrue in three different ways. By original acquisition. 2. By transfer, by act of law. 3. By transfer, by, act of the parties.
13. - §1. Title by original acquisition is acquired, 1st. By occupancy. This mode of acquiring title has become almost extinct in civilized governments, and it is permitted to exist only in those few special cases, in which it may be consistent with the public good. First. Goods taken by capture in war were, by the common law, adjudged to belong to the captor, but now goods taken from enemies in time of war, vest primarily in the sovereign, and they belong to the individual captors only to the extent and under such regulations, as positive laws may prescribe. Finch's Law, 28, 178 Bro. tit. Property, pl. 18, 38; 1 Wilson, 211; 2 Kent, Com. 290, 95. Secondly. Another instance of acquisition by occupancy, which still exists under certain limitations, is that of goods casually lost by the owner, and unreclaimed, or designedly abandoned by him; and in both these cases they belong to the fortunate finder. 1 Bl. Com. 296. See Derilict.
14. - 2d. Title by original acquisition is acquired by accession. See Accession.
15. - 3d. It is acquired by intellectual labor. It consists of literary pro-perty as the construction of maps and charts, the writing of books and papers. The benefits arising from such labor are secured to the owner. 1. By patent rights for inventions. See Patents. 2. By copyrights. See Copyrights.
16. - §2. The title to personal property is acquired and lost by transfer, by act of law, in various ways. 1. By forfeiture. 2. By succession. 3. By marriage. 4. By judgment. 5. By insolvency. 6. By intestacy.
17. - §3. Title is also acquired and lost by transfer by the act of the party. 1. By gift. 2. By contract or sale.
18. In general, possession constitutes the criterion of title of personal property, because no other means exist by which a knowledge of the fact to whom it belongs can be attained. A seller of a chattel is not, therefore, required to show the origin of his title, nor, in general, is a purchaser, with-out notice of the claim of the owner, compellable to make restitution; but, it seems, that a purchaser from a tenant for life of personal chattels, will not be secure against the claims of those entitled in remainder. Cowp. 432; 1 Bro. C. C. 274; 2 T. R. 376; 3 Atk. 44; 3 V. & B. 16.
19. To the rule that possession is the criterion of title of property may be mentioned the case of ships, the title of which can be ascertained by the register. 15 Ves. 60; 17 Ves. 251; 8 Price, R. 256, 277.
20. To convey a title the seller must himself have a title to the property which is the subject of the transfer. But to this general rule there are exceptions. 1. The lawful coin of the United States will pass the property along with the possession. 2. A negotiable instrument endorsed in blank is transferable by any person holding it, so as by its delivery to give a good title "to any person honestly acquiring it." 3 B. & C. 47; 3 Burr. 1516; 5 T. R. 683; 7 Bing. 284; 7 Taunt. 265, 278; 13 East, 509; Bouv. Inst. Index, h. t.
TITLE, legislation That part of an act of the legislature by which it is known, and distinguished from other acts the name of the act.
2. A practice has prevailed of late years to crowd into the same act a mass of heterogeneous matter, so that it is almost impossible to describe, or even to allude to it in the title of the act. This practice has rendered the title of little importance, yet, in some cases, it is material in the construction of an act. 7 East, R. 132, 134; 2 Cranch, 386. See Lord Raym. 77; Hard. 324; Barr. on the Stat. 499, n.
TITLE, persons. Titles are distinctions by which a person is known.
3. The constitution of the United States forbids the tyrant by the United States, or any state of any title of nobility. (q. v.) Titles are bestowed by courtesy on certain officers; the president of the United States sometimes re-ceives the title of excellency; judges and members of congress that of honor-able; and members of the bar and justices of the peace are called esquires. Cooper's, Justinian, 416'; Brackenridge's Law Miscell. Index, h. t.
3. Titles are assumed by foreign princes, and, among their subjects they may exact these marks of honor, but in their intercourse with foreign nations they are not entitled to them as a matter of right. Wheat. Intern. Law, pt. 2, c. 3, §6.
TITLE, Iiterature. The particular division of a subject, as a law, a book, and the like; for example, Digest, book 1, title 2; for the law relating to bills of exchange, see Bacon's Abridgment, title Merchant.
TITLE, rights. The name of a newwpaper a book, and the like.
3. The owner of a newspaper, having particular title, has a right to such title, an an injunction will lie to prevent its use un lawfully by another. 8 Paige, 75. See Pardess. n. 170.
TITLE, pleading, rights. The right of action which the plaintiff has; the declaration must show the plaintiff's title, and if such title be not shown in that instrument, the defect cannot be cured by any of the future pleadings. Bac. Ab. Pleas, &c. B 1.
TITLE DEEDS. Those deeds which are evidences of the title of the owner of an estate.
2. The person who is entitled to the inheritance has a right to the possession of the title deeds. 1 arr. & Marsh. 653.
TITLE OF A DECLARATION, pleading. At the top of every declaration the name of the court is usually stated, with the term of which the declaration is filed, and in the margin the venue, namely, the city or county where the cause is intended to be tried is set down. The first two of these compose what is called the title of the declaration. 1 Tidd's Pr. 866.
TO WIT. That is to say; namely; scilicet; (q. v.) videlicet. (q. v.)
TOFT. A place or piece of ground on which, a house formerly stood, which has been destroyed by accident or decay; it also signifies a messuage.
TOGATI. Rom. civ, law. Under the empire, when the toga had ceased to be the usual costume of the Romans, advocates were nevertheless obliged to wear it whenever they pleaded a cause. Hence they were called togati. This denomination received an official or legal sense in the imperial constitutions of the fifth and sixth centuries, and the words togati, consortium (corpus, ordo, collegium,) togatorum, frequently occur in those acts.
TOKEN, contracts, crimes. A document or sign of the existence of a fact.
2. Tokens are either public or general, or privy tokens. They are true or false. When a token is false and indicates a general intent to defraud, and it is used for that purpose, it will render the offender guilty of the crime of cheating; 12 John. 292; but if it is a mere privy token, as counterfeiting a letter in another man's name, in order to cheat but. one individual, it would not be indictable. 9 Wend. Rep. 182; 1 Dall. R. 47; 2 Rep. Const. Cr. 139; 2 Virg. Cas. 65; 4 Hawks, R. 348; 6 Mass. IR. 72; 1 Virg. Cas. 150; 12 John. 293; 2 Dev. 199; 1 Rich. R. 244.
TOKEN, commercial law. In England, this name is given to pieces of metal, made in the shape of money, passing among private persons by consent at a certain value. 2 Adolpb. P. S. 175; 2 Chit. Com. Law, 182.
TOLERAT10N. In some. countries, where religion is established by 1aw, cer-tain sects who do not agree with the established religion are nevertheless permitted to exist, and this permission is called toleration. Those are per-mitted and allowed to remain rather as a matter of favor than a matter of right.
2. In the United States, there is no such a thing as toleration, all men have an equal right to worship God according to the dictates of their own consciences. See Christianity; Conscience; Religious test.
TOLL, contracts. A sum of money for the use of something, generally applied to the consideration which is paid for the use of a road, bridge, or the like, of a public nature. Toll is also the compensation paid to a miller for grinding another person's grain.
2. The rate of taking toll for grinding is regulated by statute in most of the states. See 2 Hill. Ab. oh. 17; 6 Ad. & Ell. N. S. 31,; 6 Q. B. 3 1.
TO TOLL, estates, rights. To bar, defeat, or take away; as to toll an entry into lands, is to deny. or take away the right of entry.
TOLLS. In a general sense, tolls signify any manner of customs, subsidy, prestation, imposition, or sum of money demanded for exporting or importing of any wares or merchandise, to be taken of the buyer. 2 Inst. 58.
TON. Twenty hundred weight, each hundred weight being one hundred and twelve pounds avoirdupois. See act of congress of Aug. 30, 1842, c. 270, s. 20.
TONNAGE, mar. law. The capacity of a ship or vessel.
2. The act of congress of March 2, 1799, s. 64, 1 Story's L. U. S. 630, directs that to ascertain the tonnage of any ship or vessel, the surveyor, &c. shall, if the said ship or vessel be double decked, take the length thereof from the forepart of the main stem, to the afterpart of the stern post, above the upper deck, the breadth thereof, at the broadest part above the mainwales, half of which breadth shall be accounted the depth of such vessel, and then deduct from the length three-fifths of the breadth, multiply the remainder by the breadth and the product of the depth, and shall divide this last product by ninety-five, the quotients whereof shall be deemed the true contents or tonnage of such ship or vessel. And if such ship or vessel shall be single decked, the said, surveyor shall take the length and breadth as above directed, in respect to a double deck ship or vessel, and shall deduct from the length three-fifths of the breadth, and taking the depth from the under-side of the deck plank to the ceiling of the hold, shall multiply and divide as aforesaid, and the quotient shall be deemed the tonnage of such ship or vessel.
3. The duties paid on the tonnage of a ship or vessel are also called tonnage.
4. These duties are altogether abolished in relation. to American vessels by the act of May 31, 1830, s. 1, 4 Story's Laws U. S. 2216. And by the second section of the same act, all tonnage duties on foreign vessels are abolished, provided the president of the, United States shall be satisfied that the discriminating or countervailing duties of such foreign nation, so far as they operate to the disadvantage. of the United States, have been abolished.
5. The constitution of the United States provides, art. 1, s. 10, n. 2, that no state shall, without the consent of congress, lay any duty on tonnage.
TONTINE, French law. The name of a partnership composed of creditors or, re-cipients of perpetual or life-rents or annuities, formed on the condition that the rents of those who may die, shall accrue to the survivors, either in whole or in part.
2. This kind of partnership took its name from Tonti, an Italian, who first conceived the idea and put it in practice. Merl. Repert. h. t. Dall. Dict. h. t.; 5 Watts, 851.
TOOK AND CARRIED AWAY, pleadings. In an indictment for simple larceny, the words "feloniously took and carried away" the goods stolen, are indispensable. Bac. Abr. Indictment, GI; Com. Dig. Indictment, G 6; Cro. C. C. 37; 1 Chit. Cr. Law, 0244. Vide Taking.
TOOLS. The Massachusetts act of assembly of 1805, c. 100, which provided that "the tools of any debtor necessary for his trade and occupation, should be exempted from execution," was held to designate those implements which are commonly used by the hand of one man, in some manual labor necessary for his subsistence. The apparatus of a printing office, such as types, presses, &c. are not therefore included under the term tools. 13 Mass. Rep. 82; 10 Pick. 423; 3 Verm. 133; and see 2 Pick. 80; 5 Mass. 313.
2. By the forty-sixth section of the act of March 2, 1789, 1 Story's Laws U. S. 612, the tools or implements of a mechanical trade of persons who arrive in the United States, are free and exempted from duty.
TORT. An injury; a wrong; (q. v.) hence the expression an executor de son tort, of his own wrong. Co. Lit. 158.
2. Torts may be committed with force, as trespasses, which may be an injury to the person, such as assault, battery, imprisonment; to the property in possession; or they may be committed without force. Torts of this nature are to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property, corporeal or encorporeal, in possession or reversion: these injuries may be either by nonfeasance, malfeasance, or misfeasance. 1 Chit. Pl. 133-4. Vide 1 Fonb. Eq. 4; Bouv. Inst. Index, h. t.; and the article Injury.
TORTFEASOR. A wrong-doer, one who does wrong; one who commits a trespass or is guilty of a tort.
TORTURE, punishments. A punishment inflicted in some countries on supposed criminals to induce them to confess their crimes, and to reveal their associates.
2. This absurd and tyrannical practice never was in use in the United States; for no man is bound to accuse himself. An attempt to torture a person accused of crime, in order to extort a confession, is an indictable offence. 2 Tyler, 380. Vide Question.
TOTAL. Complete; containing the whole; as the total amount of an account is all the items of such account added together; total incapacity, is an absolute and complete incapacity to do a thing. A married woman is totally incapable to make a contract, because, although having intelligence, she has not legal capacity and an idiot is totally incapable to enter into a contract, because he has no will.
TOTAL LOSS. A technical expression, importing an utter loss of the property for the voyage, and no more. 1 T. R. 187. Vide Loss, and 2 Phil. Ev. 54, n.; 16 East, R. 214 Park's Ins. Index, h. t.; Marsh. Ins. 486.
TOTALITY. The whole sum or quantity.
2. In making a tender, it is requisite that the totality of the sum due should be offered, together with the interest and costs. Vide Tender.
TOTIDEM VERBIS. In so many words.
TOTIES QUOTIES. As often as the thing shall happen.
TOUCH AND STAY. These words are frequently introduced in policies of insurance, giving the party insured the right to stop and stay at certain designated points in the course of the voyage. A vessel which has the power to touch and stay at a place in the course of the voyage, must confine herself strictly to the terms of the liberty so given; for any attempt to trade at such a port during such a stay, as by shipping or landing goods, will amount to a species of deviation which will discharge the underwriters, unless the ship have also liberty to trade, as well as to touch and stay at such a place. 1 Marsh. Ins. 275; 1 Esp. R. 610; 5 Esp. R. 96.
TOUJOURS ET UNCORE PRIST. Always, and still ready. This is the name of a plea of tender, as where a man is indebted to another, and he tenders the amount due, and after wards the creditor brings a suit, the defendant may plead the tender, and add that he has always been and is still ready to pay what he owes, which may be done by the formula toujours et uncore prist. He must then pay the money into court, and if the issue be found for him, the defendant will be exonerated from costs, and the plaintiff made justly liable for them. 3 Bouv. Inst. n. 2923 Vide Tout temps prist.
TOUR D'ECHELLE, French law. Tour d'echelle is a right which the owner of an estate has of placing ladders on his neighbor's property to facilitate the reparation of a party wall, or of buildings which are supported by that wall. It is a species of servitude. Lois des Bat. part 1, c. 3, sect. 2, art. 9, §1.
2. In another sense by this term, or echellage, is understood the space of ground left unoccupied around a building for the purpose of enabling the owner to repair it with convenience; this is not a servitude, but an actual corporeal property. Td. part 1, c. 3, sect. 2, art. 9, §2.
TOUT TEMPS PRIST, pleading. These old French words signify always ready. The name of a plea to an action where the defendant alleges that he has always been ready to perform what is demanded of him; and he adds that he is still ready, uncore prist. (q. v.) 3 Bl. Com. 303; 20 Vin. Ab. 306; Com. Dig. Pleader, 2 Y 5.
TOWAGE, contracts. That which is given for towing ships in rivers. Guidon de la Mer, ch. 16; Poth. Des Avaries, n. 147; 2 Chit. Com. Law, 16.
TOWN. This word is used differently in different parts of the United States. In Pennsylvania and some other of the middle states, it signifies a village or a city. In some of the northeastern states it denotes a subdivision of a county, called in other places a township.
TRADE. In its most extensive signification this word includes all sorts of dealings by way of Bale or exchange. In a more limited sense it signifies the dealings in a particular business, as the India trade; by trade is also understood the business of a particular mechanic, hence boys are said to be put apprentices to learn a trade, as the trade of a carpenter, shoemaker, and the like. Bac. Ab. Master and Servant, D 1. Trade differs from art. (q. v.)
2. It is the policy of the law to encourage trade, and therefore all contracts which restrain the exercise of a man's talents in trade are detrimental to the commonwealth, and therefore void; though he may bind himself not to exercise a trade in a particular place, for, in this last case, as he may pursue it in another place, the commonwealth has the benefit of it. 8 Mass. 223; 9 Mass. 522. Vide Ware R. 257, 260 Com. Dig. h. t.; Vin. Ab. h. t.
TRADE MARKS. Signs, writings or tickets put upon manufactured goods, to distinguish them from others.
2. It seems at one time to have been thought that no man acquired a right in a particular mark or stamp. 2 Atk. 484. But it was afterwards considered that for one man to use as his own another's name or mark, would be a fraud for which an action would lie. 3 Dougl. 293; 3 B. & C. 541; 4 B. & Ad. 410. 1 court of equity will restrain a party from, using the marks of another. Eden, Inj. 314l; 2 Keene, 213; 3 Mylne & C. 339.
3. The Monthly Law Magazine for December 1840, in an article copied into the American Jurist, vol. 25, p. 279, says, "The principle to be extracted, after an examination of these cases, appear to be the following: First, that the first producer or vendor of any article gains no right of property in that article so as to prevent others from manufacturing, producing or vending it.
4. Secondly, that although any other person may manufacture, produce, and sell any such article, yet he must not, in manner, either by using the same or similar marks, wrappers, labels, or devices, or colorable imitations thereof, or otherwise, hold out to the public that he is manufacturing, producing, or selling the identical article, prepared, manufactured, produced, or sold by the other; that is to say, he may not make use of the name or reputation of the other in order to sell his own preparation.
5. Thirdly, the right to use or restrain others from using any mark or name of a firm, is in the nature of goodwill, and therefore goes to the surviving or continuing partner in such firm, and the personal representative of a deceased partner has an interest in it.
6. Fourthly, that courts of equity in these cases only act as auxiliary to the legal right, and to prevent injury, and give a relief by account, when damages at law would be inadequate to the injury received; and they will not interfere by injunction in the first instance, unless a good legal title is shown, and even then they never preclude the parties from trying the right at law, if desired.
7. Fifthly, if the legal title be so doubtful as not to induce the court to grant the injunction, yet it will put the parties in a position to try the legal right at law, notwithstanding the suit.
8. Sixthly, that before the party is entitled to relief in equity, he must truly represent his title, and the mode in which he became possessed of the article for the vending of which he claims protection; it being a clear rule of courts of equity not to extend their protection to persons whose case is not founded on truth."
9. In France the law regulates the rights of merchants and manu facturers as to their trade marks with great minuteness. Dall. Dict. mot Propriete Industrielle. See, generally, 4 Mann. & Gr. 357; B. & C. 541; 5 D. & R. 292; 2 Keen, 213; and Deceit.
TRADER. One who makes it his business to buy merchandise or goods and chattels, and to sell the same for the purpose of making a profit. The quantum of dealing is immaterial, when an intention to deal generally exists. 3 Stark. 56; 2 C. & P. 135; 1 T. R. 572.
2. Questions as to who is a trader most frequently arise under the bankrupt laws, and the most difficult among them are those cases where the party follows a business which is not that of buying and selling principally, but in which he is occasionally engaged in purchases and sales.
3. To show who is a trader will be best illustrated by a few examples: A farmer who in addition to his usual business, occasionally buys a horse not calculated for his usual occupation, and sells him again to make a profit, and who in the course of two years had so bought and sold five or six horses, two of which had been sold after be bad bought them for the sake of a guinea profit, was held to be a trader. 1 T. R. 537, n.; 1 Price, 20. Another firmer who bought a large quantity of potatoes, not to be used on his farm, but merely to sell again for a profit, was also declared to be a trader. 1 Str. 513. See 7 Taunt. 409; 2 N. R. 78; 11 East, 274. A butcher who kills only such cattle as be has reared himself is not a trader, but if he buy them and kill and sell them with a view to profit, he is a trader. 4 Burr. 21, 47. See 2 Rose, 38; 3 Camp. 233 Cooke, B. L. 48, 73; 2 Wils. 169; 1 Atk. 128; Cowp.745. A brickmaker who follows the business, for the purpose of enjoying the profits of his real estate merely, is not a trader; but when he buys the earth by the load or otherwise, and manufactures it into bricks, and sells them with a view to profit, he is a trader. Cook, B. L. 52, 63; 7 East, 442; 3 C. & P. 500; Mood. & M. 263 2 Rose, 422; 2 Glyn & J. 183; 1 Bro. C. C. 173. For further examples, the reader is referred to 4 M. & R. 486; 9 B. & C. 577; 1 T. R. 34; 1 Rose, 316; 2 Taunt. 178; 2 Marsh. 236; 3 M. & Scott. 761; 10 Bing. 292 Peake, 76; 1 Vent. 270; 3 Brod. & B. 2 6 Moore, 56.
TRADITIO BREVIS MANUS. This term is used in the civil law to designate the delivery of a thing, by the mere consent of the parties; as, when Peter holds the property of Paul as bailee, and, afterwards, he buys it, it is not necessary that Paul should deliver the property to Peter, and he should re-deliver it to Paul, the mere consent of the parties transfers the title to Paul. 1 Duverg. n. 252; 6 Shipl. R. 231; Poth. Pand. lib. 50, CDLXXIV.; 1 Bouv. Inst. n. 944.
TRADITION, contracts, civil law. The act by which a thing is delivered by one or more persons to one or more others.
2. In sales it is the delivery of possession by the proprietor with an intention to transfer the property to the receiver. Two things are therefore requisite in order to transmit property in this way: 1. The intention or consent of the former owner to transfer it; and, 2. The actual delivery in pursuance of that intention.
3. Tradition is either real or symbolical. The first is where the ipsa corpora of movables are put into the hands of the receiver. Symbolical tradition is used where the thing is incapable of real delivery, as, in immovable subjects, such as lands and houses; or such as consist in jure (things incorporeal) as things of fishing and the like. The property of certain movables, though they are capable of real delivery, may be transferred by symbol. Thus, if the subject be under look and key, the delivery of the key is considered as a legal tradition of all that is contained in the repository. Cujas, Observations, liv. 11, ch. 10; Inst. lib. 2, t. 1, §40; Dig. lib. 41, t. 1, 1. 9; Ersk. Princ. Laws of Scotl. bk. 2, t. 1, s. 10, 11; Civil Code Lo. art. 2452, et seq.
4. In the common law the term used in the place of tradition is delivery. (q. v.)
TRAFFIC. Commerce, trade, sale or exchange of merchandise, bills, money and the like.
TRAITOR, crimes. One guilty of treason.
2. The punishment of a traitor is death.
TRAITOROUSLY, pleadings. This is a technical word, which is essential in an indictment for treason in order to charge the crime, and which cannot be supplied by any other word, or any kind of circumlocution. Having been well laid in the statement of the treason itself, it is not necessary to state every overt act to have been traitorously committed. Vide Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G. 6; Hawk. B. 2, c. 25, s. 55; 1 East's P. C. 115; 2 Hale, 172, 184; 4 Bl. Com. 307; 8 Inst. 15; Cro. C. C. 87; Carth. 319; 2 Salk. 683; 4 Harg. St. Tr. 701; 2 Ld. Raym. 870; Comb. 259; 2 Chit. Cr. Law, 104, note (b).
TRANSACTION, contracts, civil law. An agreement between two or more persons, who for the purpose of preventing or putting an end to a law-suit, adjust their differences by mutual consent, in the manner which they agree on; in Louisiana this contract must be reduced to writing. Civil Code of Louis, 3038.
2. Transactions regulate only the differences which appear to be clearly comprehended in them by the intentions of the parties, whether they be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties, never intended to include in them. Id. 3040.
3. To transact, a man must have the capacity to dispose of the things included in the transaction. Id. 3039; 1 Domat, Lois Civiles, liv. 1, t. 13, s. 1; Dig. lib. 2, t. 15, l. 1; Code lib. 2, t. 4, 1. 41. In the common law this is called a compromise. (q. v.)
TRANSCRIPT. A copy of an original writing or deed.
2. In Pennsylvania, the act of assembly of March 20th, 1810, s. 10, calls a copy of the proceedings before a justice of the peace in any case, a transcript: the proper term would be an exemplification.
TRANSFER, cont. The act by which the owner of a thing delivers it to another person, with the intent of passing the rights which he has in it to the latter.
2. It is a rule founded on the plainest dictates of common sense, adopted in all systems of law, that no one can transfer a right to another which he has not himself: nemo plus juris ad alienum transfers potest quam ipse habet. Dig. 50, 17, 54 10 Pet. 161, 175; Co. Litt. 305.
3. To transfer means to change; for example, one may transfer a legacy, either, 1st. By the change of the person of the legatee, as, I bequeath to Primus a horse wliich I before bequeathed to Secundus. 2d. By the change of the thing bequeathed, as, I bequeath to Tertius my History of the United States instead of my copy of the Life of Washington. 3d. By the change of the person who was bound to pay the legacy, as, I direct that the sun) of one bundred dollars, which I directed should be charged upon my house which I gave to Quartus, shall be paid by my executors.
TRANSFEREE. He to whom a transfer is made.
TRANSFERENCE, Scotch law. The name of an action by which a suit, which was pending at the time the parties died, is transferred from the deceased to his representatives, in the same condition in which it stood formerly. If it be the pursuer who is dead, the action is called a transference active; if the defender, it is a transference passive. Ersk. Prin. B. 4, t. 1, n. 32.
TRANSFEROR. One who makes a transfer.
TRANSGRESSION. The violation of a law.
TRANSHIPMENT, mar. law. The act of taking the cargo out of one ship and loading it in another.
2. When this is done from necessity, it does not affect the liability of an insurer on the goods. 1 Marsh. Ins. 166; Abbott on Shipp. 240. But when the master tranships goods without necessity, he is answerable for the loss of them by capture by public enemies. 1 Gallis. R. 443.
TRANSIRE, Eng. law. A warrant for the custom-house to let goods pass: a permit. (q. v.) See, for a form of a transire, Harg. L. Tr. 104.
TRANSITORY. That which lasts but a short time, as transitory facts that which may be laid in different places, as a transitory action.
TRANSITORY ACTION, pract., plead. Actions are transitory when the venue may lawfully be laid in any county, though the cause of action arose out of the jurisdiction of the court. Vide Actions, and 1 Chit. Pl. 273; Com. Dig. Actions, N 12; Cowp. 161; 9 Johns. R. 67; 14 Johns. R. 134; 3 Bl. Com. 294; 3 Bouv. Inst. n. 2645. Vide Bac. Ab. Actions local and transitory.
TRANSITUS. The act of going, or of removing goods, from one place to another. The transitus of goods from a seller commences the moment he has delivered them to an agent for the purpose of being carried to another place, and ends when the delivery is complete, which delivery may be by putting the purchaser into actual possession of the goods, or by making him a symbolical delivery. 2 Hill, S. C. 587; 5 John. 335; 2 Pick. 599; 11 Pick.. 352; 2 Aik. 79; 5 Ham. 88; 6 Rand. 473. See Stoppage in transitu.
TRANSLATION. The copy made in one language of what has been written, or spoken in another.
2. In pleading, when a libel or an agreement, written in a foreign language, must be averred, it is necessary that a translation of it should also be given.
3. In evidence, when a witness is unable to speak the English language so as to convey his ideas, a translation of his testimony must be made. In that case, an interpreter should be sworn to translate to him, on oath, the questions propounded to him, and to translate to the court and jury his answers. 4 Mass. 81; 5 Mass. 219; 2 Caines' Rep. 155; Louis. Code of Pr. 784, 5.
4. It has been determined that a copyright may exist in a translation, as a literary work. 3 Ves. & Bea. 77; 2 Meriv. 441, n.
5. In the ecclesiastical law, translation denotes the removal from one place to another.; as, the bishop was translated from the diocese of A, to that of B. In the civil law, translation signifies the transfer of property. Clef des Lois Rom. h. t.
6. Swinburne applies the term translation to the bestowing of a legacy which had been given to one, on another; this is a species of ademption, (q. v.) but it differs from it in this, that there may be an ademption without a translation, but there can be no translation without an ademption. Bac. Ab. Legacies, C.
7. By translation is also meant the transfer of property, but in this sense it is seldom used. 2 Bl. Com. 294. Vide Interpreter.
TRANSMISSION, civ. law. The right which heirs or legatees may have of passing to their successors, the inheritance or legacy to which they were entitled, if they happen to die without having exercised their rights. Domat, liv. 3, t. 1, s. 10; 4 Toull. n. 186; Dig. 50, 17, 54; Code, 6, 51.
TRANSPORTATION, punishment. In the English law, this punishment is inflicted by virtue of sundry statutes; it was unknown to the common law. 2 H. Bl. 223. It is a part of the judgment or sentence of the court, that the party shall be transported or sent into exile. 1 Ch. Cr. Law, 789 to 796: Princ. of Pen. Law, c. 4 §2.
TRAVAIL. The act of child-bearing.
2. A woman is said to be in her travail from the time the pains of child-bearing commence until her delivery. 5 Pick. 63; 6 Greenl. R. 460.
3. In some states, to render the mother of a bastard child a competent witness in the prosecution of the alleged father, she must have accused him of being the father during the time of her travail. 2 Root, R. 490; 1 Root, R. 107; 2 Mass. R. 443; 5 Mass. R. 518; 8 Greenl. R. 163; 3 N. H. Rep. 135; 6 Greenl. R. 460. But in Connecticut, when the state prosecutes, the mother is competent, although she did not accuse the father during her travail. 1 Day, R. 278.
TRAVERSE, crim. law practice. This is a technical term, which means to turnover: it is applied to an issue taken upon an indictment for a misdemeanor, and means nothing more than turning over or putting off the trial to a following sessions or assize; it has, perhaps with more propriety, been applied to the denying or taking issue upon an indictment, without reference to the delay of trial. Dick. Sess. 151; Burn's Just. h. t.; 4 Bl. Com. 351.
TRAVERSE, pleading. This term, from the French traverser, signifies to deny or controvert anything which is alleged in the declaration, plea, replication or other pleadings; Lawes' Civ. Plead. 116, 117 there is no real distinction between traverses and denials, they are the same in substance. Willes. R. 224. however, a traverse, in the strict technical meaning, and more ordinary acceptation of the term, signifies a direct denial in formal words, "without this that," &c. Summary of Pleadings, 75; 1 Chit. Pl. 576, n. a.
2. All issues are traverses, although all traverses cannot be said to be issues, and the difference is this; issues are where one or more facts are affirmed on one side, and directly and merely denied on the other; but special traverses are where the matter asserted by one party is not directly and merely denied or put in issue. by the other, but he alleges some new matter or distinction inconsistent with what is previously stated, and then distinctly excludes the previous statement of his adversary. The new matter so alleged is called the inducement to the traverse, and the exclusion of the previous statement, the traverse itself. Lawes' Civ. Pl. 117. See, in general, 20 Vin. Abr. 339; Com. Dig. Pleader, G; Bac. Abr. Pleas, H; Yelv. R. 147, 8; 1 Saund. 22, n. 2; Gould. on Pl. ell. 7 Bouv. Inst. Index, n. t.
3. A traverse upon a traverse is one growing out of the same point, or subject matter, as is embraced in a preceding traverse on the other side. Gould on Pl. ch. 7, §42, n. It is a general rule, that a traverse, well tendered on one side, must be accepted on the other. And hence it follows, as a general rule, that there cannot be a traverse upon a traverse, if the, first traverse is material. The meaning of the rule is, that when one party has tendered a material traverse, the other cannot leave it and tender another of his own to the same point upon the inducement of the first traverse, but must join in that first tendered; otherwise the parties might alternately tender traverses to each other, in unlimited succession, without coming to an issue. Gould on Pl. ch. 7, §42.
4. In cases where the first traverse is immaterial, there may be a traverse upon a traverse. Id. ch. 7, §43. And where the plaintiff might be ousted of some right or liberty the law allows him, there may be a traverse upon a traverse, although the first traverse include what is material. Poph. 101; Mo. 350; Com. Dig. Pleader, G 18; Bac. Abr. Pleas, H 4; Hob. 104, marg.; Cro. Eliz. 99, 418; Gould on Pl. ch. 7, 44.
5. Traverses may be divided into general traverses, (q. v.) and special traverses. (q. v.) There is a third kind called a common traverse. (q. v.)
TREASON, crim. law. This word imports a betraying, treachery, or breach of allegiance. 4 Bl. Com. 75.
2. The constitution of the United States, art. 3, s. 3, defines treason against the United States to consist only in levying war (q. v.) against them, or in adhering to their enemies, giving them aid or comfort. This offence is punished with death. Act of April 30th, 1790, 1 Story's Laws U. S. 83. By the same article of the constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. Vide, generally, 3 Story on the Const. ch. 39, p. 667; Serg. on the Const. ch. 30; United States v. Fries, Pamph.; 1 Tucker's Blackst. Comm. Appen. 275, 276; 3 Wils. Law Lect. 96 to 99; Foster, Disc. I; Burr's Trial; 4 Cranch, R. 126, 469 to 508; 2 Dall. R. 246; 355; 1 Dall. Rep. 35; 3 Wash. C. C. Rep. 234; 1 John. Rep. 553 11 Johns. R. 549; Com. Dig. Justices, K; 1 East, P. C. 37 to 158; 2 Chit. Crim. Law, 60 to 102; Arch. Cr. Pl. 378 to 387.
TREASURE TROVE. Found treasure.
2. This name is given to such money or coin, gold, silver, plate, or bullion, which having been hidden or concealed in the earth or other private place, so long that its owner is unknown, has been discovered by accident. Should the owner be found it must be restored to him; and in case of not finding him, the property, according to the English law, belongs to the king. In the latter case, by the civil law, when the treasure was found by the owner of the soil, he was considered as entitled to it by the double title of owner and finder; when found on another's property, one-half belonged to the owner of the estate, and the other to the finder; when found on public property, it belonged one-half to the public treasury, and the other to the finder. Lecons du Dr. Rom. §350-352. This includes not only gold and silver, but whatever may constitute riches, as vases, urns, statues, &c.
3. The Roman definition includes the same things under the word pecunia; but the thing found must have a commercial value for ancient tombs would not be considered a treasure. The thing must have been hidden or concealed in the earth; and no one must be able to establish his right to it. It must be found, by a pure accident, and not in consequence of search. Dall. Dict. Propriete, art. 3, s. 3.
4. According to the French law, le tresor est toute chose cachee ou enfouie, sur laquelle personne ne peut justifier sa propriete, et qui est decouverte par lo pur effet du hasard. Code Civ. 716. Vide 4 Toull. n. 34. Vide, generally, 20 Vin. Abr. 414; 7 Com. Dig. 649; 1 Bro. Civ. Law, 237; 1 Blackstone's Comm. 295; Poth. Traite du Dr. de Propreite, art. 4.
TREASURER. An officer entrusted with the treasures or money either of a private individual, a corporation, a company, or a state.
2. It is his duty to use ordinary diligence in the performance of his office, and to account with those whose money he has.
TREASURER. OF THE MINT. An officer created by the act of January 18, 1837, whose duties are prescribed as follows: The treasurer shall receive and safely keep all moneys which shall be for the use and support of the mint; shall keep all the current accounts of the mint, and pay all moneys due by the mint, on warrants from the director. He shall receive all bullion brought to the mint for coinage; shall be the keeper of all bullion and coin in the mint, except while the same is legally placed in the hands of other officers, and shall, on warrants from the director, deliver all coins struck at the mint to the persons to whom they shall be legally payable. And he shall keep regular and faithful accounts of all the transactions of the mint, in bullion and coins, both with the officers of the mint and the depositors; and shall present, quarter-yearly, to the treasury department of the United States, according to such forms as shall be prescribed by that department, an account of the receipts and dishursements of the mint, for the purpose of being adjusted and settled.
2. This officer is required to give bond to the United States with one or more sureties to the satisfaction of the secretary of the treasury, in the sum of ten thousand dollars. His salary is two thousand dollars.
TREASURER OF THE UNITED STATES, government. Before entering on the duties of his office, the treasurer is required to give bond with sufficient sureties, approved by the secretary of the treasury and the first comptroller, in the sum of one hundred and fifty thousand dollars, payable to the United States, with condition for the faithful performance of the duties of his office, and the fidelity of the. persons by him employed. Act of 2d September, 1789, s. 4.
2. His principal duties are, 1. To receive and keep the moneys of the United States, and dishurse the same by warrants drawn by the secretary of the treasury, countersigned by the proper officer, and recorded according to law. Id. s. 4. 2. To take receipts for all moneys paid by him.
3. To render his account to the comptroller quarterly, or oftener if required, and transmit a copy thereof, when settled, to the secretary of the treasury. 4. To lay before each house, on the third day of each session of congress, fair and accurate copies of all accounts by him, from time to time, rendered to and settled with the comptroller, and a true and perfect account of the state of the treasury. 5. To submit at all times, to the secretary of the treasury and the comptroller, or either of them, the inspection of the moneys in his bands. Id. s. 4. 3. His compensation is three thousand dollars -per annum. Act of 20th February, 1804, s. 1.
TREASURY. The place where treasure is kept the office of a treasurer. The term is more usually applied to the public than to a private treasury. Vide Department of the Treasury o the United States.
TREATY, international law. A treaty is a compact made between two or more independent nations with a view to the public welfare treaties are for a perpetuity, or for a considerable time. Those matters which are accomplished by a single act, and are at once perfected in their execution, are called agreements, conventions and pactions.
2. On the part of the United States, treaties are made by the president, by and with the consent of the senate, provided two-thirds of the senators present concur. Const. article 2, s. 2, n. 2.
3. No state shall enter into any treaty, alliance or confederation; Const. art. 1, s. 10, n. 1; nor shall any state, without the consent of congress, enter into any agreement or compact with another state, or with a foreign power. Id. art. 1, see. 10, n. 2; 3 Story on the Const. §1395.
4. A treaty is declared to be the supreme law of the land, and is therefore obligatory on courts; 1 Cranch, R. 103; 1 Wash. C. C. R. 322 1 Paine, 55; whenever it operates of itself without the aid of a legislative provision; but when the terms of the stipulation import a contract, and either of the parties engages to perform a particular act, the treaty addresses itself to the polit-ical, not the judicial department, and the legislature must execute the contract before it can become a rule of the court. 2 Pet. S. C. Rep. 814. Vide Story on the Constitut. Index, h. t.; Serg. Constit. Law, Index, h. t.; 4 Hall's Law Journal, 461; 6 Wheat. 161: 3 Dall. 199; 1 Kent, Comm. 165, 284.
5. Treaties are divided into personal and real. The personal relate exclusively to the persons of the contracting parties, such as family alliances, and treaties guarantying the throne to a particular sovereign and his family. As they relate to the persons they expire of course on the death of the sov-ereign or the extinction of his family. Real treaties relate solely to the subject-matters of the convention, independently of the persons of the contracting parties, and continue to bind the state, although there may be changes in its constitution, or in the persons of its rulers. Vattel, Law of Nat. b. 2, c. 12, 183-197.
TREATY OF PEACE. A treaty of peace is an agreement or contract made by belligerent powers, in which they agree to lay down their arms, and by which they stipulate the conditions of peace, and regulate the manner in which it is to be restored and supported Vatt. lib. 4, c. 2, §9.
TREBLE COSTS, remedies. By treble costs, in the English law, is understood, 1st. The usual taxed costs. 2d. Half thereof. 3d. Half the latter; so that in effect the treble costs amount only to the taxed costs, and three-fourths thereof. 1 Chitty, R. 137; 1 Chitt. Pract. 27.
2. Treble costs are sometimes given by statutes, and this is the construction put upon them.
3. In Pennsylvania the rule is different; when an act of assembly gives treble costs, the party is allowed three times the usual costs, with the exception, that the fees of the officers are not to be trebled, when they are not regularly or usually payable by the defendant. 2 Rawle, R. 201.
4. And in New York the directions of the statute are to be strictly pursued, and the costs are to be trebled. 2 Dunl. Pr. 731.
TREBLE DAMAGES, remedies. In actions arising ex contractu some statutes give treble damages; and these statutes have been liberally construed to mean actually treble damages; for example, if the jury give twenty dollars damages for a forcible entry the court will award forty dollars more, so as to make the total amount of damages sixty dollars. 4 B. & C. 154; M'Clell. Rep. 567.
2. The construction on the words treble damages, is different from that which has been put on the words treble costs. (q. v.) Vide 6 S. & R. 288; 1 Browne, R. 9; 1 Cowen, R. 160, 175,176, 584; 8 Cowen, 115.
TREBUCKET. The name of an engine of punishment, said to be synonymous with tumbrel. (q. v.)
TREE. A woody plant, which in respect of thickness and height grows greater than any other plant.
2. Trees are part of the real estate while growing, and before they are severed from the freehold; but as soon as they are cut down, they are personal property.
3. Some trees are timber trees, while others do not bear that denomination. Vide Timber, and 2 Bl. Com. 281.
4. Trees belong to the owner of the land where they grow, but if the roots go out of one man's land into that of another, or the branches spread over the adjoining estates, such roots or branches may be cut off by the owner of the land into which they thus grow. Rolle's R. 394; 3 Bulstr. 198; Vin. Ab. Trees, E; and tit. Nuisance, W 2, pl. 3; 8 Com. Dig. 983; 2 Com. Dig. 274; 10 Vin. Ab. 142; 20 Viii. Ab. 415; 22 Vin. Ab. 583; 1 Supp. to Ves. jr. 138; 2 Supp. to Ves. jr. 162, 448; 6 Ves. 109.
5. When the roots grow into the adjoining land, the owner of such land may lawfully claim a right to hold the tree in common with the owner of the land where it was planted; but if the branches only overshadow the adjoining land, and the root does not enter it, the tree wholly belongs owner of the estate where the roots grow. 1 Swift's Dig. 104; 1 Hill. Ab. 6; 1 Ld. Raym. 737. Vide 13 Pick. R. 44; 1 Pick., R. 224; 4 Mass. R. 266; 6 N. H. Rep. 430; 3 Day, 476; 11 Co. 50; Rob. 316; 2 Rolle, It. 141 Moo. & Mal. 112; 11 Conn. R. 177; 7 Conn. 125; 8 East, R. 394; 5 B. & Ald. 600; 1 Chit. Gen. Pr. 625; 2 Phil. Ev. 138; Gale & Wheat. on Easem. 210; Code Civ. art. 671; Pardes. Tr. des Servitudes, 297; Bro. Ab. Demand, 20; Dall. Dict. mot Servitudes, art. 3 §8; 2 P. Wms. 606; Moor, 812; Hob. 219; Plowd. 470; 5 B. & C. 897; S. C. 8 D. & R. 651. When the tree grows directly on the boundary line, so that the Iine passes through it, it is the property of both owners, whether it be marked as a boun dary or not. 12 N. H. Rep. 454.
TRESAILE or TRESAYLE, domestic relations. The grandfather's grandfather. 1 Bl. Com. 186.
TRESPASS torts. An unlawful act committed with violence, ti et armis, to the person, property or relative rights of another. Every felony includes a tres-pass, in common parlance, such acts are not in general considered as tres-passes, yet they subject the offender to an action of trespass after his conviction or acquittal. See civil remedy.
2. There is another kind of trespass, which is committed without force, and is known by the name of trespass on the case. This is not generally known by the name of trespass. See Case.
3. The following rules characterize the injuries which are denominated tres-passes, namely: 1. To determine whether an injury is a trespass, due regard must be had to the nature of the right affected. A wrong with force can only be offered to the absolute rights of personal liberty and security, and to those of property corporeal; those of health, reputation and in property incorporeal, together with the relative rights of persons, are, strictly speaking, incapable of being injured with violence, because the subject-matter to which they relate, exists in either case only in idea, and is not to be seen or handled. An exception to this rule, however, often obtains in the very instance of injuries to the relative rights of persons; and wrongs offered to these last are frequently denominated trespasses, that is, injuries with force.
4. - 2. Those wrongs alone are characterized as trespasses the immediate consequences of which are injurious to the plaintiff; if the damage sustained is a remote consequence of the act, the injury falls under the denomination of trespass on the case.
5. - 3. No act is injurious but that which is unlawful; and therefore, where the force applied to the plaintiff's property or person is the act of the law itself, it constitutes no cause of complaint. Hamm. N. P. 34; 2 Pbil. Ev. 131; Bac. Abr. h. t.; 15 East R. 614; Bouv. Inst. Index, h. t. As to what will justify a trespass, see Battery.
TRESPASS, remedies. The name of an action, instituted for the recovery of damages, for a wrong committed against the plaintiff, with immediate force; as an assault and battery against the person; an unlawful entry into his, land, and an unlawful injury with direct force to his personal property. It does not lie for a mere non-feasance, nor when the matter affected was not tangible.
2. The subject will be considered with regard, 1. To the injuries for which trespass may be sustained. 2. The declaration. 3. The plea. 4. The judgment.
3. - §1. This part of the subject will be considered with reference to injuries, 1. The person. 2. To personal property. 3. To real property. 4. When trespass can or cannot be justified by legal proceedings.
4. - 1. Trespass is the proper remedy for an assault and battery, wounding, imprisonment, and the like, and it also lies for an injury to the relative rights when occasioned by force; as, for beating, wounding, and imprisoning a wife or servant, by which the plaintiff has sustained a loss. 9 Co. 113; 10 Co. 130. Vide Parties to actions; Per guod, and 1 Chit. Pr. 37.
5. - 2. The action of trespass is the proper remedy for injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing, if alive, and carrying away to the damage of the plaintiff, a personal chattel, 1 Saund. 84, n. 2, 3; F. N. B. 86; Bro. Trespass, pl. 407; Toll. Executors, 112; Cro. Jac. 362, of which another is the owner and in possession; but a naked possession or right to immediate possession, is a sufficient title to support this action. 1 T. R. 480; and gee 8. John. R. 432; 7 John. R. 535; 11 John. R. 377; Cro. Jac. 46; 1 Chit. Pl. 165.
6. - 3. Trespass is the proper remedy for the several acts of breaking through an enclosure, and coming into contact with any corporeal hereditament, of which another is the owner and in possession, and by which a damage has ensued. There is an ideal fence, reaching in extent upwards, a superficie terrae usque ad caelum, which encircles every man's possessions, when he is owner of the surface, and downwards as far as his property descends; the entry, therefore, is breaking through this enclosure, and this generally constitutes, by itself, a right of action. The plaintiff must be the owner, and in possession. 5 East, R. 485; 9 John. R. 61; 12 John. R. 183; 11 John. R. 385; Id. 140; 3 Hill, R. 26. There must have been some injury, however, to entitle the plaintiff to recover, for a man in a balloon may legally be said to break the close of the plaintiff, when passing over it, as he is wafted by the wind, yet as the owner's possession is not by that act incommoded, trespass could not probably be maintained; yet, if any part of the machinery were to fall upon the land, the aeronaut could not justify an entry into it to remove it, which proves that the act is not justifiable. 19 John. 381 But the slightest injury, as treading down the grass, is sufficient. Vide 1 Chit. Pl. 173; 2 John, R. 357: 9 John. R. 113, 377; 2 Mass. R. 127; 4 Mass. R. 266; 4 John. R . 150.
7. - 4. It is a general rule that when the defendant has acted under regular process of a court of competent jurisdiction, or of a single magistrate having jurisdiction of the subject-matter, it is a sufficient justification to him; but when the court has no jurisdiction and the process is wholly void, the defendant cannot justify under it.
8. But there are some cases, where an officer will not be justified by the warrant or authority of a court, having jurisdiction. These exceptions are generally founded on some matter of public policy or convenience; for example, when a warrant was issued against a mail carrier, though the officer was justified in serving the warrant, he was liable to an indictment for detaining such mail carrier under the warrant, for by thus detaining him, he was guilty of "wilfully obstructing or retarding the passage of the mail, or of the driver or carrier," contrary to the provisions of the act of congress of 1825, ch. 275, s. 9. 8 Law Rep. 77. See Ambassador; Justification.
9. - §2. The declaration should contain a concise statement of the injury complained of, whether to the person, personal or real property, and it must allege that the injury was conimitted vi et armis and contra pacem; in which particulars it differs from a declaration in case. See Case, remedies.
10. - §3. The general issue is not guilty. But as but few matters can be given in evidence under this plea, it is proper to plead special matters of defence.
11. - §4. The judgment is generally for the damages assessed by the jury, and for costs. When the judgment is for the defendant, it is that be recover his costs. Vide Irregularity; Regular and Irregular process. Vide, generally, Bro. Ab. h. t.; Nelson's Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Com. Dig. h. t.; Vin. Ab. h. t.; the various American and English Digests, h. t.; 2 Phil. Ev. 131; Ham. N. P. 33 to 265; Chit. Pr. Index, h. t.; Rose. Civ. Ev. h. t.; Stark. Ev. h. t.; Bouv. Inst. Index, h. t.
TRESPASS DE BONIS ASPORTATIS, practice. The action brought by the owner of goods for unlawfully taking and carrying them away, is so called. This action will lie for taking away another's goods, even though he should return them, because by such taking he has deprived the owner of his right to enjoy them. 1 Bouv. Inst. n. 3611.
TRESPASS ON THE CASE, practice. The technical name of an action, instituted for the recovery of damages caused by an injury unaccompanied with force, or where the damages sustained are only consequential. See Case, and 3 Bouv. Inst. n. 3482 to 3509.
TRESPASS QUARE CLAUSUM FREGIT, practice. This is the name of a remedy which lies to recover damages when the defendant has unlawfully and wrongfully trespassed upon the real estate of the plaintiff.
2. This action must be brought by the tenant in possession, for the injury is done to his possession. A remainder-man or reversioner cannot sustain it. 3. As the injury must be committed to the possession, one who has a mere incorporeal right cannot maintain this action. 4 Bouv. Inst. n. 3600.
TRESPASS VI ET ARMIS, practice. This is the remedy brought by the plaintiff for an immediate injury committed with force. It is distinguished from an action of trespass on the case, in this, that in the latter the injury is consequential, and not committed with direct force. 3 Bouv. Inst. n. 2871, 3482; 4 Bouv. Inst. n. 8583.
TRESPASSER. One who couimits a trespass.
2. A man is a trespasser by his own direct actohen he acts without any excuse; or he may be a trespasser in the execution of a legal process in an illegal manner; 1 Chit. Pl. 183: 2 John. Cas. 27; or when the court has no juris4iction over the subject-matter when the court has jurisdiction but the proceeding is defective and void; when the process has been misapplied, as, when the defendant has taken A's goods on an execution against B; when the process has been abused 1 Chit. Pl. 183-187 in all these cases a man is a trespasser ab initio. And a person capable of giving his assent may become a trespasser, by an act subsequent to the tort. If, for example, a an take possession of land for the use of another, the latter may afterwards recognize and adopt the act; by so doing, he places himself in the situation of one who had previously commanded it, and consequently is himself a trespasser, if the other had no right to enter, nor he to command the entry. 4 Inst. 317; Ham. N. P. 215. Vide 1 Rawle's R. 121.
TRET, weights and measures. An allowance made for the water or
TRIAL, practice., The examination before a competent tribunal, according to the laws, of the land, of the facts put in issue in a cause, for the purpose of determining such issue. 4 Mason, 232.
2. There are various kinds of trial, the most common of which is trial by jury. To insure fairdess this mode of trial lust be in public; it is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the Hiatter in dispute according to law, and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof, as the witnesses are called by a party they are questioned by him, and after they have been examined, which is called an examination in chief, they are subject to a cross-examination by the other party as to every part of their testimony. Having examined all his witnesses, the party who supports the affirmative of the issue closes; and the other party then calls his witnesses to explain his case or support his part of the issue these are in the same manner liable to a cross-examination. In case the parties should differ as to what is to be given in evidence, the judge, must decide the matter, and his decision is conclusive upon the parties so far as regards the trial; but, in civil cases, a bill of exceptions (q. v.) way be taken, so that the matter may be examined before another tribunal. When the evidence has been closed, the counsel for the party who supports the affirmative of the issue, then addressess the jury, by recapitulating the evidence and applying the law to the facts, and showing on what particular points he rests his case. The opposite counsel then addresses the jury, enforcing in like manner the facts and the law as applicable to his side of the case; to which the other counsel has a right to reply. It is then the duty of the judge to sum up the evidence and explain to the jury the law applicable to the case this is called his charge. (q. v.) The jurors then retire to deliberate upon their verdict, and, after having agreed upon it, they come into court and deliver it in public. In case they cannot agree they may, in cases of necessity, be discharged: but, it is said, in capital cases they cannot be. Very just and merited encomiums have been bestowed on this mode of trial, particularly in criminal cases. Livingston's Rep. on the Plan of a Penal Code, 13 3 Story, Const. 1773. The learned Duponceau has given beautiful sketch of this tribunal; "twelve invisible judges," said he, "whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are nowhere to be found, until the moment when the balance of justice being placed in their bands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens." Address at the opening of the Law Academy at Philadelphia. Vide, generally, 4 Com. Dig. 783; 7 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h. t.; 1 Sell. Pr. 405 4 Bl. Com. ch. 27; Chit. Pr. Index, h. t. 3 Bl. Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h. t. See Discharge of jury; Jury.
3. Trial by certificate. By the English law, this is a mode of trial allowed in such cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station, as affords them the most clear and complete knowledge of the truth.
4. As therefore such evidence, if given to a jury, must have been conclu-sive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. 3 Bl. Com. 333; Steph. Pl. 122.
5. Trial by the grand assise. This kind of trial is very similar to the common trial by jury. There is only one case in which it appears ever to have been applied, and there it is still in force.
6. In a writ of right, if the defendant by a particular form of plea appropriate to the purpose, (see the plea, 3 Chitty, 652,) denied the right of the demandant, as claimed, he had the option, till the recent abolition of the extravagant and barbarous method of wager by battel, of either offering battel or putting himself on the grand assise, to try whether he or the demandant "had the greater right." The latter course he may still take; and, if he does, the court award a writ for summoning four knights to make the election of twenty other recognitors. The four knights and twelve of the recognitors so elected, together making a jury of sixteen, constitute what is called the grand assise; and when assembled, they proceed to try the issue, or (as it is called in this case) the mise, upon the question of right. The trial, as in the case of a common jury, may be either at the bar or nisi prius; and if at nisi prius, a nisi prius record is made up; and the proceedings are in either case, in general, the same as where there is a common jury. See Wils. R. 419, 541; 1 Holt's N. P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402. Upon the issue or mise of right, the wager of battel or the grand assise was, till the abolition of the former, and the latter still is, the only legitimate method of trial; and the question cannot be tried by a jury in the common form. 1 B. & P. 192. See 3 Bl. Com. 351.
7. Trial by inspection or examination. This trial takes place when for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts, and, therefore, when the fact, from its nature, must be evident to the court either from ocular demon-stration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies ou the judgment alone. For example, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination whether be be the plaintiff or not. 9 Co. 30; 3 Bl. Com. 331; Steph. Pl. 123.
8. Judges of courts of equity frequently decide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injun ction on an allegation of piracy or infringement of a patent or copyright. 5 Ves. 709; 12 Ves. 270, and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4 Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1 Dall. 166.
9. Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action. If, on one side, a record be asserted to exist, and the opposite party deny its existence, under the form of traverse, that there is no such record remaining in court, as alleged, and issue be joined thereon, this is called an issue of nul tiel record; and the court awards, in such case, a trial by inspection and examination of the record: Upon this the party, affirming its existence, is bound to produce it in court, on a day given for the purpose, and if he fail to do so, judgment is given for his adversary.
10. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country. Steph. Pl. 122; 2 Bl. Com. 330.
11. Trial by wager of battel. In the old English law, this was a barbarous mode of trying facts, among a rude people, founded on the supposition that heaven would always interpose, and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as the stat. 59 Geo. III., c. 46, A. D. 1818. It never was in force in the United States. See 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B. & A. 405.
12. Trial by wager of law. This mode of trial has fallen into complete disuse; but in point of law, it seems, in England, to be still competent in most cases to which is anciently applied. The most important and best established of these cases, is, the issue of nil debet, arising in action of debt of simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now refained as mere form,) to prove the truth of his claim. On the other hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, be may conclude by offering to establish the truth of such plea, "against the plaintiff and his suit, in such manner as the court shall direct." Upon this the court awards the wager of law; Co. Ent. 119 a; Lill. Ent. 467; 3 Chit. Pl. 479; and the form of this proceeding, when so awarded, is that the defendant brings into court with him eleven of his neighbors, and for himself, makes oath that he does not owe the debt or detain the property alleged and then the eleven also swear that they believe him to speak the truth; and the defendant is then entitled to judgment. 3 Bl. Com. 343; Steph. Pl. 124. Blackstone compares this mode of trial to the canonical purgation of the catholic clergy, and to the decisory oath of the civil, law. See Oath, decisory.
13. Trial by witnesses. This species of trial by witnesses, or per testes, is without the intervention of a jury
14. This is the only method of trial known to the civil law, in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined; but it is very rarely used in the common law, which prefers the trial by jury in almost every instance.
15. In England, when a widow brings a writ of dower, and the tenant pleads that the tenant is not dead, this being looked upon as a dilatory plea, is, in favor of the widow, and for greater expedition, allowed to be tried by witnesses examined before the judges; and so, says Finch, shall no other case in our law. Finch's Law, 423. But Sir Edward Coke mentions others: as to try whether the tenant in a real action was duly summoned; or the validity of a challenge to a juror; so that Finch's observation must be confined to the trial of direct and not collateral issues. And in every case, Sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at least. 3 Bl. Com. 336.
TRIAL LIST. A list of cases marked down for trial for any one term.
TRIBUNAL. The seat of a judge; the place where he administers justice; but by this term is more usually understood the whole body of judges who compose a jurisdiction sometimes it is taken for the jurisdiction which they exercise.
2. This term is Latin, and derives its origin from the elevated seat where the tribunes administered justice.
TRIBUTE. A contribution which is sometimes raised by the sovereign from his subject, to sustain the expenses of the state. It is also a sum of money paid by one nation to another under some pretended right. Wolff, §1145.
TRINEPOS. This term was used among the Romans to denote the male descendant in the sixth degree in a direct line. It is still employed in making genealogical tables.
TRINITY TERM, Eng. law. One of the four terms of the courts; it begins on the 22d day of May, and ends on the 12th of June. St. 11 G. IV., and 1 W. IV., c. 70. It was formerly a movable term.
TRIORS, practice. Persons appointed according to law to try whether a person challenged to the favor is or is not qualified to serve on the jury. They do not exceed two in number without the consent of the prosecutor and defendant, or some special case is alleged by one of them, or when only one juror has been sworn and two triors are appointed with him. Co. Litt. 158 a; Bac. Ab. Juries, E 12.
2. Where the challenge is made to the first juror, the court will appoint two indifferent persons to be triors if they find him indifferent he shall be sworn, and join the triors in determining the next challenge. But when two jurors have been found impartial and have been sworn, then the office of the triors will cease, and every subsequent challenge will be decided upon by the jurymen. If more than two, jurymen have been sworn, the court may assign any two of them to determine the challenges. To the triors thus chosen no challenges can be admitted.
3. The following oath or affirmation is administered to them: "You shall well and truly try whether A B, the juror challenged, stands indifferent between the parties to this issue, so help you God" or to this you affirm. The trial then proceeds by witnesses before them; and they may examine, the juryman challenged on his voire dire, but he cannot be interrogated as to circumstances which may tend to his own disgrace, discredit, or the injury of his character. The finding of the triors is final. Being officers of the court, the triors may be punished for any mishehaviour in their office. Vide 2 Hale, 275; 4 Bl. Com. by Chitty, 353, n. 8; Tr. per Pais, 200; 1 Chit. Cr. Law, 549, 450; 4 Harg. St. Tr. 740, 750; 15 Serg. & Rawle, 156; 21 Wend. 509; 2 Green, 195.
TRIPARTITE. Consisting of three parts, as a deed tripartite, between A of the first part, B of the second part, and C of the third part.
TRIPLICATION, pleading. This was formerly used in pleading instead of rebutter. 1 Bro. Civ. Law, 469, n.
TRITAVUS. The male ascendant in the sixth degree was so called among the Romans. For the female ascendant in the same degree, the term is tritavia. In forming genealogical tables this convenient term is still used.
TRIUMVIRI CAPITALES or TREVIRI or TRESVIRI, Rom, civ. law. Officers who had charge of the prison, through whose intervention punishments were inflicted. Sallust in Catalin. They had eight lictors to execute their orders. Vicat, ad voc.
TRIVIAL. Of small importance. It is a rule in equity that a demurrer will lie to a bill on the ground of the triviality of the matter in dispute, as being below the dignity of the court. 4 Bouv. Inst. n. 4237. See Hopk. R. 112; 4 John. Ch. 183; 4 Paige, 364.
TRONAGE, Engl. law. A customary duty or toll for weighing wool, so called because it was weighed by a common trona, or beam. Fleta, lib. 2, c. 12.
TROVER, remedies. Trover signifies finding. The remedy is called an action of trover; it is brought to recover the value of personal chattels, wrongfully converted by another to his own use; the form supposed that the defendant might have acquired the possession of the property lawfully, namely, by finding, but if he did not, by bringing the action the plaintiff waives the trespass; no damages can therefore be recovered for the taking, all must be for the conversion. 17 Pick. 1; Anthon, 156; 21 Pick. 559; 7 Monr. 209; 1 Metc. 172.
2. It will be proper to consider the subject with reference, 1. To the thing converted. 2. The plaintiff's right. 3. The nature of the injury. 4. The pleadings. 5. The verdict and judgment.
3. - 1. The property affected must be some personal chattel; 3, Serg. & Rawle, 513; and it has been decided that trover lies for title deeds; 2 Yeates, R. 537; and for a copy of a record. Hardr. 111. Vide 2 T. R. 788; 2 Salk. 654; 2 New Rep. 170; 3 Campb. 417; 3 Johns. R. 432; 10 Johns. R. 172; 12 Johns. R. 484; 6 Mass. R. 394; 17 Serg. & Rawle, 285; 2 Rawle, R. 241. Trover will be sustained for animals ferae naturae, reclaimed. Hugh. Ab. Action upon the case of Trover and Conversion, pl. 3. But trover will not lie for personal property in the custody of the law, nor when the title to the property can be settled only by a peculiar jurisdiction; as, for example, property taken on the high seas, and claimed as lawful prize, because in such case, the courts of admiralty have exclusive jurisdiction. Cam. & N. 115, 143; but see 14 John. 273. Nor will it lie where the property bailed has been lost by the bailee, or stolen from him, or been destroyed by accident or from negligence case is the proper remedy. 2 Iredell, 98.
4.-2. The plaintiff must at the time of the conversion have had a property in the chattel either general or special; 1 Yeates, R. 19; 3 S. & R. 509; 15 John. R. 205, 349; 16 John. R. 159; 1 Humph. R. 199; he must also have had actual possession or right to immediate possession. The person who has the absolute or general property in a personal chattel may support this action, although he has never had possession, for it is a rule that the general property of personal chattels creates a constructive possession. 2 Saund. 47 a, note 1; Bac. Ab. Trover, C; 4 Rawle, R. 185. One who has a special property, which consists in the lawful custody of goods with a right of detention against the general owner, may maintain trover. Story, Bailm. 93 n.
5. - 3. There must have been a conversion, which may have been effected, 1st. By the wrongful taking of a personal chattel. 2d. By some other illegal assumption of ownership, or by illegally using or misusing it; or, 3d. By a wrongful detention., Vide Conversion.
6. - 4. The declaration should state that the plaintiff Was possessed of the goods (describing them) as of his own property, and that they came to the defendant's possession by finding; and the conversion should be properly averred, as that is the gist of the action. It is not indispensable to state the price or value of the thing converted. 2 Wash. 192. See 2 Cowen, 592 13 S. & R. 99; 3 Watts, 333; 1 Blackf. 51; 1 South 211; 2 South. 509. Vide form, 2 Chitty's Pl. 370, 371. The usual plea is not guilty, which is the general issue. Bull. N. P. 48.
7. - 5. The verdict should be for the damages sustained, and the measure of such damages is the value of the property at the time of the conversion, with interest. 17 Pick. 1; 7 Monr. 209; 1 Mete. 172; 8 Port. R. 191; 2 Hill, 132; 8 Dana, 192. The judgment, when for the plaintiff, is that he recover his damages and costs; 1 Chit. Pl. 157; when for the defendant, the judgment is that he recover his costs. Vide, generally, 1 Chit. Pl. 147 to 157 Chit. Pr. Index, h. t.; Bac. Ab. h. t.; Dane's Ab. h. t. Vin. Ab. h. t.; Com. Dig. Action upon the case upon trover; Id. Pleader, 2 I; Doct. Pl. 494; Amer. Digests, h. t.; Bouv. Inst. Index, h. t. As to the evidence to be given in actions of trover, see Rose. Civ. Ev. 395 to 412.
TROY WEIGHT. A weight less ponderous than the avoirdupois weight, in the proportion of seven thousand, for the latter, to five thousand seven hundred and sixty, to the former. Dane's Ab. Index, h. t. Vide Weights.
TRUCE, intern. law. An agreement between belligerent parties, by which they mutually engage to forbear all acts of hostility against each other for some time, the war still continuing. Burlamaqui's N. & P. Law, part 4, c. 11, §1.
2. Truces are of several kinds: general, extending to all the territories and dominions of both parties; and particular, restrained to particular places; as, for example, by sea, and not by land, &c. Id. part 4, c. 11, §5. They are also absolute, indeterminate and general; or limited and determined to certain things, for example, to bury the dead. Ib. idem. Vide 1 Kent, Com. 159; Com. Dig. Admiralty, E 8; Bac. Ab.;Prerogative, D 4; League; Peace; War.
TRUE BILL, practice. These words are endorsed on a bill of indictment, when a grand jury, after having heard the witnesses for the government, are of opinion that there is sufficient cause to put the defendant on his trial. Formerly, the endorsement was Billa vera, when legal proceedings were in Latin; it is still the practice to write on the back of the bill Ignoramus, when the jury do not find it to be a true bill. Vide Grand Jury.
TRUST, contracts, devises. An equitable right, title or interest in property, real or personal, distinct from its legal ownership; or it is a personal obligation for paying, delivering or performing anything, where the person trusting has no real. right or security, for by, that act he confides altogether to the faithfulness of those intrusted. This is its most general meaning, and includes deposits, bailments, and the like. In its more technical sense, it may be defined to be an obligation upon a person, arising out of a confidence reposed in him, to apply property faithfully, and according to such confidence. Willis on Trustees, 1; 4 Kent, Com. 295; 2 Fonb. Eq. 1; 1 Saund. Uses and Tr. 6; Coop. Eq. Pl. Introd. 27; 3 Bl. Com. 431.
2. Trusts were probably derived from the civil law. The fidei commissum, (q. v.) is not dissimilar to a trust.
3. Trusts are either express or implied. 1st. Express trusts are those which are created in express terms in the deed, writing or will. The terms to create an express trust will be sufficient, if it can be fairly collected upon the face of the instrument that a trust was intended. Express trusts are usually found in preliminary sealed agreements, such as marriage articles, or articles for the purchase of land; in formal conveyances, such as marriage settlements, terms for years, mortgages, assignments for the payment of debts, raising portions or other purposes; and in wills and testaments, when the bequests involve fiduciary interests for private benefit or public charity,, they may be created even by parol. 6 Watts & Serg. 97.
4. - 2d. Implied trusts are those which without being expressed, are deducible from the nature of the transaction, as matters of intent; or which are superinduced upon the transaction by operation of law, as matters of equity, independently of the particular intention of the parties.
5. The most common form of an implied trust is where property or money is delivered by one person to another, to be by the latter delivered to a third person. These implied trusts greatly extend over the business and pursuits of men: a few examples will be given.
6. When land is purchased by one man in the name of another, and the former pays the consideration money, the land will in general be held by the grantee in Trust for the person who so paid the consideration money. Com. Dig. Chancery, 3 W 3; 2 Fonbl. Eq. book 2, c. 5, §1, note a. Story, Eq. Jur. §1201.
7. When real property is purchased out of partnership funds, and the title is taken in the name of one of the partners, he will hold it in trust for all the partners. 7 Ves. jr. 453; Montague on Partn. 97, n.; Colly. Partn. 68.
8. When a contract is made for the sale of land, in equity the vendor is immediately deemed a trustee for the vendee of the estate; and the vendee, a trustee for the vendor of the purchase money; and by this means there is an equitable conversion of the property. 1 Fonbl. Eq. book 1, ch. 6, §9, note t; Story, Eq. Jur. SSSS 789, 790, 1212. See Conversion. For the origin of trusts in the civil law, see 5 Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 1, n. 18; 1 Brown's Civ. Law, 190. Vide Resulting Trusts. See, generally, Bouv. Inst. Index, h. t.
TRUSTEE, estates. A trustee is one to whom an estate has been conveyed in trust.
2. The trust estate is not subject to the specialty or judgment debts of the trustee, to the dower of his wife, or the curtesy of the hushand of a female trustee.
3. With respect to the duties of trustees, it is held, in conformity to the old law of uses, that pernancy of the profits, execution of estates, and defence of the land, are the three great properties of a trust, so that the courts of chancery will compel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land. 2. To execute such conveyances, in accordance with the provisions of the trust, as the cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity. Cruise, Dig. tit. 12, c. 4, s. 4.
4. It has been judiciously remarked by Mr. Justice Story, 2 Eq. Jur. §1267, that in a great variety of cases, it is not easy to say what the duty of a trustee is; and that therefore, it often becomes indispensable for him, before he acts, to seek, the aid and direction of a court of equity. Fonbl. Eq. book 2, c. 7, §2, and note c. Vide Vin. Ab. tit. Trusts, O, P, Q, R, S, T; Bouv. Inst. Index, h. t.
TRUSTEE PROCESS, practice. In Massacchusetts, this is a process given by statute, in imitation of the foreign attachment of the English law.
2. By this process, a creditor may attach any property or credits of his debtor in the hands of a third person. This third person is, in the English law, called the garnishee; in Massachusetts, he is the trustee. White's Dig. tit. 148. Vide Attachment.
TRUSTER. He who creates a trust. A convenient term used in the laws of Scotland. 1 Bell's Com. 321, 6th ed.
TRUTH. The actual state of things.
2. In contracts, the parties are bound to toll the truth in their dealings, and a deviation from it will generally avoid the contract; Newl. on Contr. 352-3; 2 Burr. 1011; 3 Campb. 285; and even concealment, or suppressio veri, will be considered fraudulent in the contract of insurance. 1 Marsh. on Ins. 464; Peake's N. P. C. 115; 3 Campb. 154, 506.
3. In giving his testimony, a witness is required to tell the truth, the whole truth, and nothing but the truth; for the object in the examination of matters of fact, is to ascertain truth.
4. When a defendant is sued civilly for slander or a libel, he may justify by giving the truth in evidence; but when a criminal prosecution is instituted by the commonwealth for a libel, he cannot generally justify by giving the truth in evidence.
5. The constitutions of several of the United States have made special provisions in favor of giving the truth in evidence in prosecutions for libels, under particular circumstances. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana and Illinois, it is declared, that in publications for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. The constitution of New York declares, that in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous, is true, and was published with good motives and for justifiable ends, the party shall be acquitted. By constitutional provision in Mississippi and Missouri, and by legislative enactment in New Jersey, Arkansas, Tennessee, Act of 1805, c. 6: and Vermont, Rev. Stat. tit. 11, c. 25, s. 68; the right to give the truth in evidence has been more extended; it applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege. Cooke on Def. 61.
TUB, measures. In mercantile law, a tub is a measure containing sixty pounds weight of tea; and from fifty-six to eighty-six pounds of camphor. Jacob's Law Dict. h. t.
TUB-MAN, Eng. law. A barrister who has a pre-audience in the Exchequer, and also one who has a particular place in court, is so called.
TUMBREL, punishment. A species of cart; according to Lord Coke, a dung-cart.
2. This instrument, like the pillory, was used as a means of exposure; and according to some authorities, it seems to have been synonymous with the trebucket or ducking stool. 1 Chit. Cr. Law, 797; 3 Inst. 219; 12 Serg. & Rawle, 220. Vide Com. Dig. h. t.; Burn's Just. Pillory and Tumbrel.
TUN, measure. A vessel of wine or oil, containing four hogsheads.
TURBARY, Eng. law. A right to dig turf; an easement.
TURNKEY. A person under the superintendence of a jailor, whose employment is to open and fasten the prison doors and to prevent the prisoners from escaping.
2. It is his duty to use due diligence, and he may be punished for gross neglect or wilful misconduct in permitting prisoners to escape.
TURNPIKE. A public road paved with stones or other hard substance.
2. Turnpike roads are usually made by corporations to which a power to make them has been granted. The grant of such power passes not only an easement for the road itself, but also so much land as is connected with it; as, for instance, for a toll house and a cellar under it, and a well for the use of the family. 9 Pick. R. 109. A turnpike is a public highway, and a building erected before the turnpike was made, though upon a part out of the travelled path, if continued there is a nuisance. 16 Pick. R. 175. Vide Road; Street; Way.
TURPIS CAUSA, contracts. A base or vile consideration, forbidden by law, which makes the contract void; as a contract, the consideration of which is the future illegal cohabitation of the obligee with the obligor.
TURPITUDE. Everything done contrary to justice, honesty, modesty or good morals, is said to be done with turpitude.
TUTELAGE. State of guardianship; the condition of one who is subject to the control of a guardian.
TUTOR, civil law. A person who has been lawfully appointed to the care of the person and property of a minor.
2. By the laws of Louisiana minors under the age of fourteen years, if males, and under the age of twelve years, if females, are both, as to their persons and their estates, placed under the authority of a tutor. Civ. Code, art. 263. Above that age, and until their, majority or emancipation, they are placed under the authority of a curator. Ibid.
TUTOR ALIENUS, Eng. law. The name given to a stranger who enters into the lands of an infant within the age of fourteen), and takes the profits.
2. He may be called to an account by the infant, and be charged as guardian in socage. Litt. s. 124; Co. Litt. 89 b, 90 a Hargr. n. 1.
TUTOR PROPRTUS. The name given to one who is rightly a guardian in socage in contradistinction, to a tutor alienus. (q. v.)
TUTORSHIP. The power which an individual, sui juris, has to take care of the person of one who is unable to take care of himself. Tutorship differs from curatorship, (q. v.) Vide Pro-curator; Pro-tutor; Undertutor.
TUTRIX. A woman who is appointed to the office of a tutor.
TWELVE TABLES. The name given to a code of Roman laws, commonly called the Law of the Twelve Tables. (q. v.)
TWENTY YEARS. The lapse of twenty years raises a presumption of certain facts, and after such a time, the party against whom the presumption has been raised, will be required to prove a negative to establish his rights.
2. After twenty years from the time it became due, a bond will be presumed to have been paid. 2 Cranch, 180; 3 Day, 289; 1 McCord, 145; 2 N. & McC. 160; 1 Bay. 482; 9 Watts, 441; 2 Speers, 357. And the same presumption arises that a judgment has been paid, if no steps have been taken by the plaintiff for twenty years after its rendition. 3 Brev. 476; 5 Conn. 1.
3. But the presumption of such payment is easily rebutted, by showing that interest has been regularly paid. 1 Bailey, 148; that the obliger has admitted it has not been paid 2 Harring, 124; 9 N. H. Rep. 398; or other circumstances calculated to rebut the presumption. The proof of facts which show that the obligor was poor and not likely to be able to pay the debt, is not sufficient. 5 Verm. 236.
4. When a debt is payable in instalments and secured by a penal bond, the presumption of payment arising from lapse of time applies to each instalment as it falls due. 3 Harring. 421.
5. By the English act of limitation, 21 Jac. 1, c. 16, the period during which a possessory action for land can be sustained is fixed at twenty years, so that an adverse possession of twenty years is a bar to an action of ejectment, and such lapse of time gives a possessory title to the land. This period has been adopted in many of the states of the Union, but there has been some variation in others. See Limitation of actions.
6.
But this statute did not affect incorporeal hereditaments, which remained as
before. In analogy to the act of limitation the courts presumed a grant after
twenty years adverse possession. Ana new grants are presumed upon proof of an
adverse, exclusive, and uninterrupted enjoyment of an incorporeal hereditament
at the end of twenty years. And the burden of proving that the possession was
adverse, that is, under a claim of title, with the knowledge or acquiescence of
the owner of the land; and also that it was uninterrupted, rests on the party
claiming such incorporeal hereditaments. 3
7. The time of enjoyment of a former owner who is in privity with the claimant, can, in general, be joined to his own in order to make up the period of twentv years, as in the case of the heir and ancestor, of grantor and grantee. 9 Pick. 251. But the enjoyment of a former owner whose title has escheated to the state by forfeiture, cannot be added to the time of the enjoyment of the grantee of the state. 2 Greenl. Ev. 543.
TYBURN
TICKET,
2. By the 10 & 11. W. III., c. 23, the original proprietor or first assignee of such certificate is exempted from all and all manner of parish and ward offices within the parish or ward where the felony shall have been committed. Bac. Ab. Constable, C.
TYRANNY, government. The violation of those laws which regulate the division and the exercises of the sovereign power of the state. It is a violation of -its constitution.
TYRANT, government. The chief magistrate of the state, whether legitimate or otherwise, who violates the constitution to act arbitrarily contrary to justice. Toull. tit. prel. n. 32.
2. The term tyrant and usurper, are sometimes used as synonymous, because usurpers are almost always tyrants; usurpation is itself a tyrannical act, but properly speaking, the words usurper and tyrant convey different ideas. A king may become a tyrant, although legitimate, when he acts despotically; while a usurper may cease to be a tyrant by governing according to the dictates of justice.
3. This term is sometimes applied to persons in authority who violate the laws and act arbitrarily towards others. Vide Despotism.
UBERRIMA FIDES. Perfect good faith; abundant good faith.
2. This phrase is used to express that a contract must be made in perfect good faith, concealing nothing; as in the case of insurance, the insured must observe the most perfect good faith towards the insurer. 1 Story, Eq. Jur. §317; 3 Kent, Com. 283, 4th ed.
UKAAS, or UKASE. The name of a law or ordinance emanating from the czar of Russia.
ULLAGE, com. law. When a cask is gauged, what it wants of being full is called ullage.
ULTIMATUM. The last proposition made in making a contract, a treaty, and the like; as, the government of the United States has given its ultimatum, has made the last proposition it will make to complete the proposed treaty. The word also means the result of a negotiation, and it comprises the final determination of the parties concerned in the object in dispute.
ULTIMUM SUPPLICIUM. The last or extreme punishment; the penalty of death.
ULTIMUS HAERES. The last or remote heir; the lord. So called in contra-dis-tinction to the haeredes proximus, (q. v.) and the haeredes remotiores. (q. v.) Dalr Feud. Pr. 110.
UMPIRAGE. The decision of an umpire. This word is used for the judgment of an umpire, as the word award is employed to designate that of arbitrators.
UMPIRE. A person selected by two or more arbitrators. When they are authorize to do so by the submission of the parties, and they cannot agree as to the subject-matter referred to them, whose duty it is to decide the matter in dispute. Sometimes the term is applied to a single arbitrator, selected by the parties themselves. Kyd on Awards, 6, 75, 77 Caldw. on Arb. 38; Dane's Ab. Index, h. t.; 3 Vin. Ab. 93; Com. Dig. Arbitrament, F; 4 Dall. 271, 432; 4 Sco. N. S. 378; Bouv. Inst. Index, h. t.
UNA VOCE. With one voice unanimously.
UNALIENABLE. The state of a thing or right which cannot be sold.
2. Things which are not in commerce, as public roads, are in their nature unalienable. Some things are unalienable, in consequence of particular provisions in the law forbidding their sale or transfer, as pensions granted by the government. The natural rights of life and liberty are unalienable.
UNANIMITY. The agreement of all the persons concerned in a thing in design and opinion.
2. Generally a simple majority (q. v.) of any number of persons is sufficient to do such acts as the whole number can do; for example, a majority of the legislature can pass a law: but there are some cases in which unanimity is required; for example, a traverse jury, composed of twelve individuals, cannot decide an issue submitted to them, unless they are unanimous.
UNCERTAINTY. That which is unknown or vague. Vide Certainty.
UNCONDITIONAL. That which is without condition; that which must be performed without regard to what has happened or may happen.
UNCONDITIONAL CONTRACT, contracts. One which does not depend upon any condition whatever. 1 Bouv. Inst. n. 730.
UNCONSCIONABLE BARGAIN, contracts. A contract which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other. 4 Bouv. Inst. n. 3848.
UNCONSTITUTIONAL. That which is contrary to the constitution.
2. When an act of the legislature is repugnant or contrary to the constitution, it is, ipso facto, void. 2 Pet. R. 522; 12 Wheat. 270; 3 Dall. 286; 4 Dall. 18.
3. The courts have the power, and it is their duty, when an act is unconstitutional, to declare it to be so; but this will not be done except in a clear case and, as an additional guard against error, the supreme court of the United States refuses to take up a case involving constitutional questions, when the court is not full. 9 Pet. 85. Vide 6 Cranch, 128; 1 Binn. 419; 5 Binn. 355; 2 Penns 184; 3 S. & R. 169; 7 Pick. 466; 13 Pick. 60; 2 Yeates, 493; 1 Virg. Cas. 20; 1 Blackf. 206 6 Rand. 245 1 Murph. 58; Harper, 385 1 Breese, 209 Pr. Dee. 64, 89; 1 Rep. Cons. Ct. 267 1 Car. Law Repos. 246 4 Munr. 43; 5 Hayw. 271; 1 Cowen, 550; 1 South. 192; 2 South. 466; 7 N H. Rep. 65, 66; 1 Chip, 237, 257; 10 Conn. 522; 7 Gill & John. 7; 2 Litt. 90; 3 Desaus. 476.
UNCORE PRIT, pleading. This barbarous phrase of old French, which is the same with encore pret, yet ready, is used in a plea in bar to an action of debt on a bond due at a day past; when the defendant pleads a tender on the day it became due, and adds that he is uncore prit, still ready to pay the same. 3 Bl. Com. 303; Doct. Pl. 526 Dane's Ab. Index, h. t. Vide tout temps prist.
UNDE NIHIL HABET. Of which she has nothing. When no dower had been assigned to the widow during the time prescribed by law, she could, at common law, sue out a writ of dower unde nihil habet. 3 Bl. Com. 183.
UNDERLEASE, contracts. An alienation by a tenant of a part of his lease, reserving to himself a reversion; it differs from an assignment, which is a transfer of all the tenant's interest in the lease. 3 Wils. 234; S. C. Bl. Rep. 766. And even a conveyance of the whole estate by the lessee, reserving to himself the rent, with a power of re-entry for non-payment, was held to be, not an assignment, but an underlease. Str. 405. In Ohio it has been decided that the transfer of only a part of the lands, though for the whole term, is an underlease; 2 Ohio, R. 216; in Kentucky, such a transfer, on the contrary, is considered as an assignment. 4 Bibb. R. 538.
2. In leases there is frequently introduced a covenant on the part of the lessee, that he will not underlet the premises, nor assign the lease. This refers to the voluntary act of the tenant, and the covenant is not broken when the lease is transferred without any act on his part; as, if it be sold by the sheriff on execution, or by assignees in bankruptcy, or by an executor. 8 T. R. 57; 3 M. & S. 353; 1 Ves. 295.
3. The underlessor has a right to distrain for the rent due to him, which, the assignor of a lease has not. The under-lessee is not liable personally to the original lessor, nor is his property subject to his claim for rent longer than while it is on the leased premises, when it may be distrained upon. The assignee of the lessee stands in a different situation. He is liable to an action by the landlord or his assignee for the rent, upon the ground of privity of estate. 1 Hill. Ab. 125, 6; 4 Kent, Com. 95; 9 Pick. R. 52; 14 Mass. 487; 5 Watts, R. 134. Vide 2 Bl. R. 766; 3 Wils. 234; 4 Campb. 73; Bouv. Inst. Index, tit. Underletting. Vide Estate for years; Lease; Lessee; Notice to quit; Tenant for years.
UNDER-SHERIFF. A deputy of a sheriff. The principal is called high-sheriff, and the deputy the under-sheriff. Vide 1 Phil . Ev. Index, h. t.
UNDER-TENANT. One who holds by virtue of an underlease. (q. v.) See Subtenant.
UNDERTAKING, contracts. An engagement by one of the parties to a contract to the other, and not the mutual engagement of the parties to each other; a promise. 5 East, R. 17; 2 Leon. 224, 5; 4 B, & A. 595.
UNDERTOOK. Assumed; promised.
2. This is a technical word which ought to be inserted in every declaration of assumpsit, charging that the defendant undertook to perform the promise which is the foundation of the suit; and this though the promise be founded on a legal liability, or would be implied in evidence. Bac. Ab Assumpsit, F; 1 Chit. Pl. 88, note p.
UNDER-TUTOR, law of Louisiana. In every tutorship, there shall be an undertutor, whom it shall be the duty of the judge to appoint at the time letters of tutorship are certified for the tutor.
2. It is the duty of the under-tutor to act for the minor, whenever the interest of the minor is in opposition to the interest of the tutor. Civil Code, art. 300, 301; 1 N. S. 462; 9 M. R. 643; 11 L. R. 189; Poth. Des Personnes, partie prem. tit. 6, s. 5, art. 2. Vide Pro-curator; Protutor.
UNDERWRITER, insurances. One who signs a policy of insurance, by which he becomes an insurer.
2. By this act he places himself as to his responsibility, in the place of the insured. He may cause a re-insurance (q. v.) to be made for his benefit; and it is his duty to act with good faith, and, without quibbling, to pay all just demands against him for losses. Marsh. Ins. 45,
UNDIVIDED. That which is held by the same title by two or more persons, whether their rights are equal, as to value or quantity, or unequal.
2. Tenants in common, joint-tenants, and partners, hold an undivided right in their respective properties, until partition has been made. The rights of each owner of an undivided thing extends over the whole and every part of it, totum in toto, et totum in qualibet parte. Vide Partition; Per my et per tout.
UNICA TAXATIO, practice. The ancient language of a special award of venire, where of several defendants, one pleads, and one lets judgment go by default, whereby the jury, who are to try and assess damages on the issue, are also to assess damages against the defendant suffering judgment by default. Lee's Dict. h. t.
UNILATERAL CONTRACT, civil law. When the party to whom an engagement is made, makes no express agreement on his part, the contract is called uni-lateral, even in cases where the law attaches certain obligations to his acceptance. Civ. Code of Lo. art. 1758. Code Nap. 1103. A loan of money, and a loan for use, are of this kind. Poth. Obl. part 1, c. 1, s. 1, art. 2; Lee. Elemen. §781.
UNINTELLIGIBLE. That which cannot be understood.
2. When a law, a contract, or will, is unintelligible, it has no effect whatever. Vide Construction, and the authorities there referred to.
UNIO PROLIUM. A species of adoption used among the Germans; it signifies union of descent. It takes place when a widower, having children, marries a widow, who also has children. These parents then agree that the children of both marriages shall have the rights to their succession, as those which may be the fruits of their marriage. Lec. Elem. §187.
UNION. By this word is understood the United States of America; as, all good citizens will support the Union.
UNITED STATES OF AMERICA. The name of this country. The United States, now thirty-one in number, are Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New York North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Wisconsin, and California.
2. The territory of which these states are composed was at one time dependent generally on the crown of Great Britain, though governed by the local legislatures of the country. It is not within the plan of this work to give a history of the colonies; on this subject the reader is referred to Kent's Com. sect. 10; Story on the Constitution, Book 1; 8 Wheat. Rep. 543; Marshall, Hist. Colon.
3. The neglect of the British government to redress grievances which had been felt by the people, induced the colonies to form a closer connexion than their former isolated state, in the hopes that by a union they might procure what they had separately endeavored in vain, to obtain. In 1774, Massachusetts recommended that a congress of the colonies should be assembled to deliberate upon the state of public affairs; and on the fourth of September of the following year, the delegates to such a congress assembled in Philadelphia. Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, and Virginia, were represented by their delegates; Georgia alone was not represented. This congress, thus organized, exercised de facto and de jure, a sovereign authority, not as the delegated agents of the governments de facto of the colonies, but in virtue of the original powers derived from the people. This, which was called the revolutionary government, terminated only when superseded by the confederated government under the articles of confederation, ratified in 1781. Serg. on the Const. Intr. 7, 8.
4. The state of alarm and danger in which the colonies then stood induced the formation of a second congress. The delegates, representing all the states, met in May, 1775. This congress put the country in a state of defence, and made provisions for carrving on the war with the mother country; and for the internal regulations of which they were then in need; and on the fourth day of July, 1776, adopted and issued the Declaration of Independence. (q. v.) The articles of confederation, (q. v.) adopted on the first day of March, 1781, 1 Story on the Const. §225; 1 Kent's Comm. 211, continued in force until the first Wednesday in March, 1789, when the present constitution was adopted. 5 Wheat. 420.
5. The United States of America are a corporation endowed with the capacity to sue and be sued, to convey and receive property. 1 Marsh. Dec. 177, 181. But it is proper to observe that no suit can be brought against the United States without authority of law.
6. The states, individually, retain all the powers which they possessed at the formation of the constitution, and which have not been given to congress. (q. v.)
7. Besides the states which are above enumerated, there are various territories, (q. v.) which are a species of dependencies of the United States. New states may be admitted by congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of congress. Const. art. 4, s. 3. And the United States shall guaranty to every state in this union, a republican form of government. Id. art. 4, s. 4. See the names of the several states; and Constitution of the United States.
UNITY, estates. An agreement or coincidence of certain qualities in the title of a joint estate or an estate in common.
2. In a joint estate there must exist four unities; that of interest, for a joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years: that of title, and therefore their estate must be created by one and, the same act; that of time, for their estates must be vested at one and the same period, as well as by one and the same title; and lastly, the unity of possession: hence joint-tenants are seised per my et per tout, or by the half or moiety and by all: that is, each of them has an entire possession, as well of every parcel as of the whole. 2 Bl. Com. 179-182; Co. Litt. 188.
3. Coparceners must have the unities of interest, title, and possession.
4. In tenancies in common, the unity of possession is alone required. 2 Bl. Com. 192; 2 Bouv. Inst. n. 1861-83. Vide Estate in Common; Estate in Joint-tenancy; Joint-tenants; Tenant in Common; Tenants, Joint.
UNITY OF POSSESSION. This term is used to designate the possession by one person of several estates or rights. For example, a right to an estate to which an easement is attached, or the dominant estate, and to an estate which an easement encumbers, or the servient estate, in such case the easement is extinguished. 3 Mason, Rep. 172; Poph. 166; Latch, 153; and vide Cro. Jac. 121. But a distinction has been made between a thing that has being by prescription, and one that has its being ex jure naturae; in the former case unity of possession will extinguish the easement; in the latter, for example, the case of a water course, the unity will not extinguish it. Poth. 166.
2. By the civil code of Louisiana, art. 801, every servitude is extin-guished, when the estate to which it is due, and the estate owing it, are united in the same hands. But it is necessary that the whole of the two estates should belong to the same proprietor; for if the owner of one estate only acquires the other in part or in common with another person, confusion does not take effect. Vide Merger.
UNIVERSAL LEGACY. A term used among civilians. An universal legacy is a testamentary disposition, by which the testator gives to one or several persons the whole of the property which he leaves at his decease. Civil Code of Lo. art. 1599; Code Civ. art. 1003; Poth. Donations testamentaires, c. 2, sect. 1, §2.
UNIVERSAL PARTNERSHIP. The name of a specie's of partnership by which all the partners agree to put in common all their property, universorum bonorum, not only what they then have, but also what they shall acquire. Poth. Du Contr. de Societe, n. 29.
2. In Louisiana, universal partnerships are allowed, but properly which may accrue to one of the parties, after entering into the partnership, by donation, succession, or legacy, does not become common stock, and any stipulation to that effect, previous to the obtaining the property aforesaid, is void. Civ. Code, art. 2800.
UNIVERSITY. The name given to certain societies or corporations which are seminaries of learning where youth are sent to finish their education. Among the civilians by this term is understood a corporation.
UNJUST. That which is done against the perfect rights of another; that which is against the established law; that which is opposed to a law which is the test of right and wrong. 1 Toull. tit. prel. n. 5; Aust. Jur. 276, n.; Hein. Lec. El. §1080.
UNKNOWN. When goods have been stolen from some person unknown, they may be so described in the indictment; but if the owner be really known, an indictment alleging the property to belong to some person unknown is improper. 2 East's P. C. 651 1 Hale, P. C. 512; Holt's N. P. C. 596 S. C. 3 Engl. Common Law Rep. 191; 8 C. & P. 773. Vide Indictment; Quidam.
UNLAWFUL. That which is contrary to law.
2. There are two kinds of contracts which are unlawful; those which are void, and those which are not. When the law expressly prohibits the transaction in respect of which the agreement is entered into and declares it to be void, it is absolutely so. 3 Binn. R. 533. But when it is merely prohibited, without being made void, although unlawful, it is not void. 12 Serg. & Rawle, 237; Chitty, Contr. 230; 23 Amer. Jur. 1 to 23; 1 Mod. 35; 8 East, R. 236, 237; 3 Taunt. R. 244; Hob. 14. Vide Condition; Void.
UNLAWFUL ASSEMBLY, crim. law. A disturbance of the public peace by three or more persons who meet together with an intent mutually to assist each other in the execution of some unlawful enterprise of a private nature, with force and violence; if they move forward towards its execution, it is then a rout (q. v.) and if they actually execute their design, it amounts to a riot. (q. v.) 4 Bl. Com. 140; 1 Russ. on Cr. 254; Hawk. c. 65, s. 9; Com. Dig. Forcible Entry, D 10; Vin. Abr. Riots, &c., A.
UNLAWFULLY, pleadings. This word is frequently used in indictments in the description of the offence; it is necessary when the crime did not exist at common law, and when a statute, in describing an offence which it creates, uses the word, 1 Moody, Cr. Cas. 339; but it is unnecessary whenever the crime existed at common law, and is manifestly illegal. 1 Chitty, Crim. Law, *241; Hawk. B. 2, c. 95, s. 96; 2 Roll. Ab. 82; Bac. Abr. Indictment, G 1 Cro. C. C. 38, 43.
UNLIQUIDATED DAMAGES. Such damages, as are unascertained. In general such damages cannot be set-off. No interest will be allowed on unliquidated damages. 1 Bouv. Inst. n. 1108. See Liquidated, Liquidated Damages.
UNQUES, law French. Yet. This barbarous word is frequently used in pleas as, Ne unques executor, Ne unquas guardian, Ne unques accouple; and the like.
UNSOUND MIND; UNSOUND MEMORY. These words have been adopted in several statutes, and sometimes indiscriminately used to signify, not only lunacy, which is periodical madness, but also a permanent adventitious insanity as distinguished from idiocy. 1 Ridg. Parl. Cases, 518; 3 Atk. 171.
2. The term unsound mind seems to have been used in those statutes in the same sense as insane; but they have been said to import that the party was in some such state as was contradistinguished from idiocy and from lunacy, and yet such is made him a proper subject of a commission to inquire of idiocy and lunacy. Shelf. on Lun. 5; Ray, Med. Jur. Prel. §8; Hals. Med. Jur. 336; 8 Ves. 66; 19 Ves. 286; 1 Beck's Med. Jur. 573; Coop. Ch. Cas. 108; 12 Ves. 447; 2 Mad. Ch. Pr. 731, 732.
UNSOUNDNESS. Vide Crib-biting; Roaring; Soundness.
UNWHOLESOME FOOD. Food not fit to be eaten; food which, if eaten, would be injurious.
2. Although the law does not in general consider a sale to be a warranty or goodness of the quality of a personal chattel, yet it is otherwise with regard to food and liquor when sold for consumption. 1 Roll. Ab. 90, pl. 1 and 2.
UPLIFTED HAND. When a man accused of a crime is arraigned, he is required to raise his hand, probably in order to identify the person who pleads. Perhaps for the same reason when a witness adopts a particular mode of taking an oath, as when he does not swear upon the gospel, but upon Almighty God, he is requested to hold up his hand.
URBAN. Relating to a city; but in a more general sense it signifies relating to houses.
2. It is used in this latter sense in the civil code of Louisiana, articles 706 and 707. All servitudes are established either for the use of houses or for the use of lands. Those of the first kind are called urban servitudes, whether the buildings to which they are due be situated in the city or in the country. Those of the second kind are called rural servitudes.
3. The principal kinds of urban servitudes are the following: the right of support; that of drip; that of drain, or of preventing the drain, that of view or of lights, or of preventing the view or lights from being obstructed: that of raising buildings or walls, or of preventing them from being raised that of passage and that of drawing water. Vide 3 Toull. p. 441; Poth. Introd. au tit. 13 de la Coutume d'Orleans, n. 2; Introd. Id. n. 2.
USAGE. Long and uniform practice. In its most extensive meaning this term includes custom and prescription, though it differs from them in a narrower sense, it is applied to the habits, modes, and course of dealing which are observed in trade generally, as to all mercantile transactions, or to some particular branches of trade.
2. Usage of trade does not require to be immemorial to establish it; if it be known, certain, uniform, reasonable, and not contrary to law, it is sufficient. But evidence of a few instances that such a thing has been done does not establish a usage. 3 Watts, 178; 3 Wash. C. C. R. 150; 1 Gallis. 443; 5 Binn. 287; 9 Pick. 426; 4 B. & Ald. 210; 7 Pet. 1; 2 Wash. C. C. R. 7.
3. The usages of trade afford ground upon which a proper construction may be given to contracts. By their aid the indeterminate intention of parties and the nature and extent of their contracts arising from mere implications or presumptions, and act of an equivocal character may be ascertained; and the meaning of words and doubtful expressions may become known. 2 Mete. 65; 2 Sumn. 569; 2 G. & J. 136; 13 Pick. 182; Story on Ag. §77; 2 Kent, Com. 662, 3d ed.; 5 Wheat. 326; 2 Car. & P. 525; 3 B. & Ald. 728; Park. on Ins. 30; 1 Marsh. Ins. 186, n. 20; 1 Caines, 45 Gilp. 356, 486; 1 Edw. Ch. R. 146; 1 N. & M. 519; 15 Mass. 433; 1 Rill, R. 270; Wright, R. 573; Pet. C. C. R. 230; 5 Hamm. 436 6 Pet. 715; 2 Pet. 148; 6 Porter, 123 1 Hall, 612; 9 Mass. 155; 9 Wheat. 582 11 Wheat. 430; 1 Pet. 25, 89.
4. Courts will not readily adopt these usages, because they are not unfrequently founded in mistake. 2 Sumn. 377. See 3 Chitt. Pr. 55; Story, Confl. of Laws, §270; 1 Dall. 178; Vaugh. 169, 383; Bouv. Inst. Index, h. t.
USANCE, commercial law. The term usance comes from usage, and signifies the time which by usage or custom is allowed in certain countries, for the payment of a bill of exchange. Poth. Contr. du Change, n. 15.
2. The time of one, two or three mouths after the date of the bill, according to the custom of the places between which the exchanges run.
3. Double or treble is double or treble the usual time, and half usance is half the time. Where it is necessary to divide a month upon a half usance, which is the case when the usance is for one month or three, the division, notwithstanding the difference in the length of the months, contains fifteen days.
USE, estates. A confidence reposed in another, who was made tenant of the land or terre tenant, that he should dispose of the land according to the intention of the cestui que use, or him to whose use it was granted, and suffer him to take the profits. Plowd. 352; Gilb. on Uses, 1; Bac. Tr. 150, 306; Cornish on Uses, 1 3; 1 Fonb. Eq. 363; 2 Id. 7; Sanders on Uses, 2; Co. Litt. 272, b; 1 Co. 121; 2 Bl. Com. 328; 2 Bouv. Inst. n. 1885, et seq.
2. In order to create a use, there must always be a good Consideration; though, when once raised, it may be passed by grant to a stranger, without consideration. Doct. & Stu. , Dial. ch. 22, 23; Rob. Fr. Conv. 87, n.
3. Uses were borrowed from the fidei commissum (q. v.) of the civil law; it was the duty of a Roman magistrate, the praetor fidei commissarius, whom Bacon terms the particular chancellor for uses, to enforce the observance of this confidence. Inst. 2, 23, 2.
4. Uses were introduced into England by the ecclesiastics in the reign of Edward Ill or Richard II, for the purpose of avoiding the statutes of mortmain; and the clerical chancellors of those times held them to be fidei commissa, and binding in conscience. To obviate many inconveniencies and difficulties, which had arisen out of the doctrine and introduction of uses, the statute of 274 Henry VIII, c. 10, commonly called the statute of uses, or in conveyances and pleadings, the statute for transferring uses into possession, was passed. It enacts, that "when any person shall be seised of lands, &c., to the use, confidence or trust of any other person or body politic, the person or corporation entitled to the use in fee simple, fee tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c., of and in the like estate as they have in the use, trust or confidence; and that the estates of the persons so seised to the uses, shall be deemed to be in him or them that have the use, in such quality, manner, form and condition, as they had before in the use." The statute thus executes the use; that is, it conveys the possession to the use, and transfers the use to the possession; and, in this manner, making the cestui que use complete owner of the lands and tenements, as well at law as in equity. 2 Bl. Com. 333; 1 Saund. 254, note 6.
5. A modern use has been defined to be an estate of right, which is acquired through the operation of the statute of 27 Hen. VIII., c. 10; and which, when it may take effect according to the rules of the common law, is called the legal estate; and when it may not, is denominated a use, with a term descriptive of its modification. Cornish on Uses, 35.
6. The common law judges decided, in the construction of this statute, that a use could not be raised upon a use; Dyer, 155 A; and that on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, the statute executed only the first use, and that the second was a mere nullity. The judges also held that, as the statute mentioned only such persons as were seised to the use of others, it did not extend to a term of years, or other chattel interests, of which a termor is not seised but only possessed. Bac. Tr. 336; Poph. 76; Dyer, 369; 2 Bl. Com. 336; The rigid literal construction of the statute by the courts of law again opened the doors of the chancery courts. 1 Madd. Ch. 448, 450.
USE, civil law. A right of receiving so much of the natural profits of a thing as is necessary to daily sustenance; it differs from usufruct, which is a right not only to use but to enjoy. 1 Browne's Civ. Law, 184; Lecons Elem. du Dr. Civ. Rom. §414, 416.
USE AND OCCUPATION. When a contract has been made, either by express or implied agreement, for the use of a house or other real estate, where there was no amount of rent fixed and ascertained, the landlord can recover a reasonable rent in an action of assumpsit for use and occupation. 1 Munf. R. 407; 2 Aik. R. 252; 7 J. J. Marsh. 6; 4 Day, R. 228; 13 John. R. 240; 13 John. R. 297; 4 H. & M. 161; 15 Mass. R. 270; 2 Whart. R. 42; 10 S. & R. 251.
2. The action for use and occupation is founded not on a privity of estate, but on a privity of contract; 3 S. & R. 500; C. & N. 19; therefore it will not lie where the possession is tortious. 2 N. & M. 156; 3 S. & R. 500; 6 N. H. Rep. 298; 6 Ham. R. 371; 14 Mass. R. 95. See Arch. L. & T. 148.
USEFUL. That which may be put into beneficial practice.
2. The patent act of congress of July 4, 1836, sect. 6, in describing the subjects of patents, mentions "new and useful art," and "new and useful improvement." To entitle the inventor to a patent, his invention must, to a certain extent, be beneficial to the community, and not be for an unlawful object, or frivolous, or insignificant. 1 Mason, 182; 1 Pet. C. C. R. 322; 1 Bald. 303; 14 Pick. 217; Paine, 203.
USHER. This word is said to be derived from a huissier, and is the name of an inferior officer in some English courts of law Archb. Pr. 25.
USUCAPTION, civil law. The manner of acquiring property in things by the lapse of time required by law.
2. It differs from prescription, which has the same sense, and means, in addition, the manner of acquiring and losing, by the effect of time regulated by law, all sorts of rights and actions. Merl. Repert. mot Prescription, tom. xii. page 671; Ayl. Pand. 320; Wood's Inst. Civ. Law, 165; Lecons Elem. du Dr. Rom. §437; 1 Browne's Civ. Law, 264, n.; vattel, ii. 2, c. 2, §140.
USUFRUCT, civil law. The right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing.
2. The obligation of not altering the substance of the thing, however, takes place only in the case of a complete usufruct.
3. Usufructs are of two kinds; perfect and imperfect. Perfect usufruct, which is of things which the usufructuary can enjoy without altering their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied; as a house, a piece of land, animals, furniture and other movable effects. Imperfect or quasi usufruct, which is of things which would be useless to the usufructuary if be did not consume and expend them, or change the substance of them, as money, grain, liquors. Civ. Code of Louis. art. 525, et seq.; 1 Browne's Civ. Law, 184; Poth. Tr. du Douaire, n. 194; Ayl. Pand. 319; Poth. Pand. tom. 6, p. 91; Lecons El. du Dr. Civ. Rom. 414 Inst. lib. 2, t. 4; Dig. lib. 7, t. 1, 1. 1 Code, lib. 3, t. 33; 1 Bouv. Inst. Theolo. ps. 1, c. 1, art. 2, p. 76.
USUFRUCTUARY, civil law. One who has the right and enjoyment of an usufruct.
2. Domat, with his usual clearness, points out the duties of the usufructuary, which are, 1. To make an inventory of the things subject to the usu-fruct, in the presence of those having an interest in them. 2. To give secur-ity for their restitution; when the usufruct shall be at an end. 3. To take good care of the things subject to the usufruct. 4. To pay all taxes, and claims which arise while the thing is in his possession, as a ground-rent. 5. To keep the thing in repair at his own expense. Lois Civ. liv. 1, t. 11, s. 4. See Estate for life.
USURPATION, torts. The unlawful assumption of the use of property which belongs to another; an interruption or the disturbing a man in his right and possession. Toml. Law Dict. h. t.
2. According to Lord Coke, there are two kinds of usurpation. 1. When a stranger, without right, presents to a church, and his clerk is admitted; and, 2. When a subject uses a franchise of the king without lawful authority. Co. Litt. 277 b.
USURPATION, government. The tyrannical assumption of the government by force contrary to and in violation of the constitution of the country.
USURPED POWER, insurance. By an article of the printed proposals which are considered as making a part of the contract of insurance it is provided, that "No loss of damage by fire, happening by any invasion, foreign enemy, or any military or usurped power whatsoever will be made good by this company." Lord Chief J. Wilmot, Mr. Justice Clive, and Mr. Justice Bathurst, against the opinion of Mr. Justice Gould, determined that the true import of the words usurped power in the proviso, was an invasion, from abroad, or an internal rebellion, where armies are drawn up against each other, when the laws are silent, and when the firing of towns becomes unavoidable; but that those words could not mean the power of a common mob. 2 Marsh. Ins. 390.
USURPER, government. One who assumes the right of government by force, contrary to and in violation of the constitution of the country. Toull. Dr. Civ. n. 32. Vide Tyranny,
USURY, contracts. The illegal profit which is required and received by the lender of a sum of money from the borrower for its use. In a more extended and improper sense, it is the receipt of any profit whatever for the use of money: it is only in the first of these senses that usury will be here considered.
2. To constitute a usurious contract the following are the requisites: 1. A loan express or implied. 2. An agreement that the money lent shall be returned at all events. 3. Not only that the money lent shall be returned, but that for such loan a greater interest than that fixed by law shall be paid.
3. - 1. There must be a loan in contemplation of the parties; 7 Pet. S. C. Rep. 109, 1 Clarke R. 252; and if there be a loan, however disguised, the contract will be usurious, if it be so in other respects. Where a loan was made of depreciated bank notes to be repaid in sound funds, to enable the borrower to pay a debt he owed dollar for dollar, it was considered as not being usur-ious. 1 Meigs, R. 585. The bona fide sale of a note, bond or other security at a greater discount than would amount to legal interest, is not per se, a loan, although the note may be endorsed by the seller, and he remains responsible. 9 Pet. S. C. Rep. 103; 1 Clarke, R. 30. But, if a note, bond; or other security be made with a view to evade the laws of usury, and afterwards sold for a less amount than the interest, the transaction will be considered a loan; 2 Johns. Cas. 60; 3 Johns. Cas. 66; 15 Johns. R. 44 2 Dall. 92; 12 Serg. & Rawle, 46 and a sale of a man's own note, endorsed by himself, will, be considered a loan. lt is a general rule that a contract, which, in its inception, is unaffected by usury, can never be invalidated by any subsequent usurious transaction. 7 Pet. S. C. Rep. 109. On the contrary, when the contract was originally usurious, and there is a substitution by a new contract, the latter will generally be considered usurious. 15 Mass. R. 96.
4. - 2. There must be a contract for the return of the money at all events; for if the return of the principal with interest, or of the principal only, depend upon a contingency, there can be no usury; but if the contingency extend only to interest, and the principal be beyond the reach of hazard, the lender will be guilty of usury, if he received interest beyond the amount allowed by law. As the principal is put to hazard in insurances, annuities and bottomry, the parties may charge and receive greater interest than is allowed by law in common cases, and the transaction will not be usurious.
5. - 3. To constitute usury the borrower must not only be obliged to return the principal at all events, but more than lawful interest: this part of the agreement must be made with full consent and knowledge of the contracting parties. 3 Bos. & Pull, 154. When the contract is made in a foreign country the rate of interest allowed by the laws of that country may be charged, and it will not be usurious, although greater than the amount fixed by law in this. Story, Confl. of Laws, §292. Vide, generally, Com. Dig. h. t.; Bac. Ab. h. t.; 8 Com. Dig. h. t.; Lilly's Reg. h. t.; Dane's Ab. h. t.; Petersdorff's Ab. h. t.; Vin. Ab. h. t.; 2 Bl. Com. 454; Comyn on Usury, passim; 1 Pt. S. C Rep. Index, h. t.; 1 Supp. to Yes. jr. 307, 337; Yelv. 47; 1 Ves. jr. 527; 1 Saund 295, note 1; Poth. h. t.; and the article Anatocism; Interest.
UTERINE BROTHER, domestic relations. A brother by the mother's side.
UTI POSSIDETIS. This phrase, which means as you possess, is used in international law to signify that the parties to a treaty are to retain possession of what they have acquired by force during the war.
TO UTTER, crim. law. To offer, to publish.
2. To utter and publish a counterfeit note is to assert and declare, directly or indirectly, by words or actions, that the note offered is good. It is not necessary that it should be passed in order to complete the offence of uttering. 2. Binn. R. 338, 9. It seems that reading out a document, although the party refuses to show it, is a sufficient uttering. Jebb's Ir. Cr. Cas. 282. Vide East, P. C. 179; Leach, 251; 2 Stark. Ev. 378 1 Moody, C. C. 166; 2 East, P. C. 974 Russ. & Ry. 113; 1 Phil. Ev. Index, h. t.; Roscoe's Cr. Ev. 301. The merely showing a false instrument with intent to gain a credit when there was no intention or attempt made to pass it, it seems would not amount to an uttering. Russ. & Ry. 200. Vide Ringing the charge.
UTTER BARRISTER, English law, Those barristers who plead without the bar, and are distinguished from benchers, or those who have been readers and who are allowed to plead within the bar, as the king's counsel are. The same as ouster barrister. See Barrister. civil law. A woman lawfully married.