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 R
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'•»c.

IO
CT

W,
DI

LA
OF
CONSISTING OF

JUDICIAL DEFINITIONS AND EXPLANATIONS

4-
OP ''

WOEDS, PHRASES, iKD MAXIMS,

AND AN

EXPOSITION OF THE PRNCIPLES OF LAW:

COMPRISMG A

Dictionary and Compendium of American

AND English rURiSPRUDENCt.

BY, !, ,,/ [

WILLIA]/ C\^ANDERSON,
Of ti;Pennstlvanl» Bab.

/CHICAGO:
T. H. FLoip AND COMPAiTY,
i'^'w Publishers.
1889.
B^L^H-I
 TO

My Father,
WILLIAM ANDERSON,
, THIS BOOK IS
Affectionately Dedicated
.
 INTRODUCTION.

The title Dictionary of Law has been chosen for this book because it seeks to
define and otherwise explain law terms and expressions, to show the application
of legal principles, and to present judicial interpretations of common words and
phrases.
Similar productions, heretofore issued, are marked, in the opinion of the writer,
by the following imperfections:
1. Absence of judicial matter, especially of judicial definitions or interpreta-
tions and reasoning; also, dearth of non-technical terms as cross-references.
2. Neglect or omission of important subjects, and needless repetition of matter
under different heads.
3. Inattention to pronunciation, and lack of discrimination in selecting words
for etymological explanation.
4. Omission of the names of the parties to important cases, and of the dates
when decisions were rendered.
5. The presence of thousands of obsolete Anglo-Saxon, Old English, Scotch,
Spanish, French, and civil law words and phrases, antiquated Norman and Latin
expressions, and matters of a purely non-legal character, — a mass of material of
no use to student or practitioner, of interest to the legal antiquarian alone.
In the preparation of this work care has been taken not to follow in the " beaten
path " of law dictionaries. Under the following heads its plan is set forth:
1. The different spellings of terms are noted, the preferred spelling being placed
first, with comment where pertinent.
2. The correct pronunciation of words often mispronounced is indicated, ac-
cording toWebster's Dictionary.
3. As to etymology, while the aim has been to discriminate between terms
whose origin is of no importance or interest and such as contain in their ancient
form somewhat of their present signification, the supposed origin of all technical
terms is stated.
4. The definitions are printed in the larger type, except where incorporated in
a paragraph along with explanatory matter.
The endeavor has been to find definitions framed by the courts, the highest
tribunals of this country receiving the preference. Some by text-writers also are
given. Where a court explains rather than defines a term (as, in a charge to a
jury), such explanation has generally been , condensed. Definitions thought to
be too narrow or too broad in statement have been modified with a view to
greater fullness and clearness.
But all changes in the phraseology of definitions are indicated. A single
 INTRODUCTION.

bracket [ denotes that a slight or immaterial change has been made; a double
bracket [ ] that the substance only is given — that the definition is recast, or that
a definition is constructed out of the language employed by the authority cited,
or is formed upon partial or incomplete definitions found in the accompanying
citations.
The absence of a bracket denotes that no change has been made in the lan-
guage of the court. This last class of definitions makes up the body of the
DiCTiON"AKT portion of the book, and constitutes one of the special features
mentioned — its large number ot judicially/ framed definitions.
The word "whence," which will be noticed in the text immediately after
some definitions, does not necessarily mean that the word or words which follow
it are derived from the title word, but that they are derivatives from the same root
word, — the latter being sometimes included in the appended list. This is done
to avoid repetitions under different forms of the same word.
Expressions having the same initial word are placed under that word, arranged
alphabetically with reference to the second word. Thus, A mensa will be found
under A, and not between Amends and Amerce.
For typographical reasons, general cross-references have"been advanced to the
beginning of a few articles, and some common words, not originally intended for
definition, have been defined. ,
5. Synonyms are treated under the leading word of the group. For positives
and negatives — words beginning with dis-, il-, in-, non-, re-, un-, reference should
be had to the simple word, except where the negative itself is the word most used.
Examples, Dishonor, Insolvency, and Insanity.
6. The Latin and Norman-French law terms now in use have been collected,
and such maxims and phrases as student and practitioner alike meet in the books
they consult. The selection also includes important terms found in treatises on
Roman law, mention of the primitive meaning of terms current under new
applications, and explanation of a few terms in ancient law long obsolete but
occasionally referred to as of historical interest.
Bach Latin maxim or phrase is entered, in whole or in part, as a title or sub-
title under its initial word; but if that word is unimportant, like the particles
a, ah, con, de, in, nam, pro, qui, quod, ut, or is an adjective, a cross-reference is
made from such word to the principal word, under which the expression is ex-
plained atlength.
7. Having given the origin of a term, and the senses in which it is used, where
the importance of the subject warrants it, the value of the idea or the extent of
its application in the affairs of society is stated — by comment, more or less ex-
tended, orby reference to a related topic under which such information may be
found. These remarks, which are printed in the smaller type and compose the
Commentary portion of the work, consist, in brief, of matters pertaining, it is
believed, to every recognized branch of the law, and set forth the " reasoning of
the law" itself.
For English common law antedating the adoption of the Constitution, I have
relied chiefiy upon the commentaries of Blackstone, making my own abridgment
 INTRODUCTION.

of that invaluable treatise, and citing it in all cases. Many statements of prin-
cifjles have been taken from the commentaries and decisions of Chancellor Kent,
more from the works and decisions of Judge Story, and not a few paragraphs
from other and later standard writers.
Under appropriate heads have been embodied the various provisions of the
Constitution of the United States, and many from the constitutions of the States.
When the former is given verhatim its original orthography and punctuation
have been restored.
Quotations are made from English statutes followed in this country.
Still more frequently acts of Congress, from the earliest to the latest date, have
been drawn upon — very important recent ones being reprinted entire; also, enact-
ments in the several States, including sections from codes.
There are also presented decisions of the courts on the foregoing subjects, ex-
planatory ofquestions of general and sometimes of local importance, and, for
the most part, of permanent interest. To this end, all the decisions of the United
States Supreme Court have been read, and thousands of the decisions rendered in
the States — indeed, entire series of State reports.
8. In the cross-references a subject may be found to be not the title word, but
its shortest form.
English words are referred to foreign words, and vice versa, wherever there is
likeness or sameness of sense between them, and a perusal of both will contribute
to an understanding of the general subject.
Sub-titles referred to under the title word are italicised.
Having treated each word where it will be soonest comprehended in its own
meaning or meanings and as related to other subjects, references to it, under
heads where it might be incidentally treated, are entered.
Specific terras are fully defined only under the generic head with which they
are associated. Thus under " Express " the reader will not find " express con-
tract:" he will there find "express" explained, generically and specifically, but
it is only under " Contract " that he will learn anything substantial about " ex-
press contract." Not so, with local or isolated expressions, such as " Baby Act,"
and " Lynch Law."
9. In the selection of cases, preference is given, upon all subjects, to the de-
cisions of the Supreme Court and the circuit courts of the United States, and,
next, to those of the highest courts of the States.
Decisions reviewing or collecting earlier cases have also been preferred.
In a very few instances the dates of decisions are not given because not known.
In collections of leading cases, where the annotations are the important matter,
the year of the title case may not be stated.
From 108 to 128 United States Supreme Court Reports (October, 1882, to
January, 1889), the year when an opinion was rendered is given; prior to 108
U. S., the reporters noted only the year of the term to which the writ of error or
the appeal was taken.
Cases without the ilames of the parties are such as follow a text-book quoted;
or they occur where it was not thought necessary to make copious reference to
 INTRODUCTION.

definitions on common technical terms; or where a later quotes an earlier author-

ity already given in full; or they are so added in order not to take up space on a
point already supported by cases cited at length; or they establish a principle
universally accepted; or they concern incidental or illustrative matters; or they
show where a term or maxim was applied. Cited to a common word, they will
sometimes be found to contain that word without suggestion as to its general
meaning or use.
The word "cases," printed at the end of a citation, imports that the court
examined previous decisions which will be found discussed or referred to in the
decision itself. This device, while saving space, directs the reader to other cases
on the same subject.
The abbreviation id. refers to another volume in the same set or series; ib., to
the volume last mentioned. Unless otherwise indicated, neiv series is meant, where
there is also an "old series." "R." stands for Railroad or Railway. "Constitu-
tion "means Constitution of the United States; while " constitution " refers to the
similar instrument belonging to a particular State. " Supreme Court " means
the Supreme Court of the United States; in a few instances, for purposes of distinc-
tion, the names of the other Federal courts begin with capital letters. "State"
refers to one of the United States; "state" to a nation; "R. S." to the Revised
Statutes of the United States; " Government " to the National government.
The first descriptive word in the names of corporations has been sought for.
Some reports furnish nothing more than "Insurance Co." or "Railroad Co."
Unless otherwise noted, the original or star pages are intended.
10. I have received valuable information ;from other dictionaries. For original
extracts taken from them due credit has been given. Definitions from these
books, adopted by the courts, are noted. Where a court has approved a defini-
tion of a common word as found in a vernacular dictionary, or in a cyclopaedia,
the title of such work is placed after the particular case, separated from it by a
colon; so, also, with matter from other sources.
11. References are made to useful articles in the law periodicals, especially to
such as discuss cases, and to a few articles in lay publications.
12. A knowledge of the chief events in the lives of Sir William Blackstone,
James Kent, and Joseph Story, the most widely read of law-writers, — in partic-
ular, the circumstances under which their works were composed, with informa-
tion as to different editions,— being useful to all students of the law, and those
works having been largely quoted throughout this book — brief biographies are
inserted under the names of those distinguished jurists.
Hoping that the volume will in some degree lighten the labors of student and
practitioner, it is submitted to the kindly consideration of the profession.

PiTTSBUEGH, Pa., March 1, 1889. ^- C. Anderson-. '

 DICTIONARY OF LAW.

A. 3. As an abbreviation, usually denotes

American, anno, appeal, article, assistant,
A, or a, the first letter of the alphabet, is associate, attorney.
used in legal, legislative, and judicial writ- Has been used for al in the expression et alA See
Auns.
ings as a numerical character, as an abbrevi- Formerly stood for adversus {versus); as. Cockle o.
ation, and as a word :
Underwood.^
1. The capital serves for marking — (1) the Among the Puritans, a convicted adultress wore an
first division, chapter, or other large portion A upon the front of her dress, in Plymouth colony by
of a legal treatise or digest ; (3) the first ap- law of 1658, or earlier, and in Vermont as late as 1785.
pendix in a report: of cases, or of a commission A. D. Anno Domini, in the year of our
Lord. See Year.
or committee ; (3) the first schedule to a con-
stitution or a statute ; (4) the first series of an A. G. AttorneyTgeneral.
issue of corporate or governmental bonds; A. J. Assistant, or associate, judge or
(5) the first distinct portion of any other tab- justice. A. J J. Associate judges or justices.
ulated statement. A.L.J, Associate law judge or justice. See
Judge.
The small letter designates — (1) in old law-
books, the first page of a leaf or folio (6 des- A. R. Anno regni, in the year of the reign.
ignating the second page); (3) in modern A 1. Of the highest class.
Originated with. underwriters in rating vessels: the
works, the first paragraph of new matter in- A denoted that the hull of a particular ship was well
serted in the body of a volume : as, of a new built and seaworthy for a voyage of any length; the 1
section printed between older sections; (3) the efficient state of her tackle, sails, apparel, and other
the first foot-note to a page in the first edi- appurtenances. B, C, and other letters, indicated
lower conditions of seaworthiness; 2, 3, and perhaps
tion of a book: in enlarged editions, espe-
cially those prepared by annotators, a note other numerals, inferior or insufScient appurte-
subjoined to such foot-note is designated as nances.'
4. The indefinite article a or an.
a*, or (a)', a^, etc. Often used in the sense of any, and then applies to
The other letters, capital and small (in the language more than one individual object.*
of printers, upper case and lower case), are used in
the same manner. in the office of the recorder of deeds for Philadelphia
3. Indicates the first of a number of docu- county. Pa., it continued from 1683 to 1799; in the
county court of Augusta, Va., from 1745 to 1879; in the
ments or other proofs: as. Exhibit "A," or office of recorder of deeds for Allegheny county, Pa.,
"Al," "A 3," etc. from 1788 to 1849. In the last county there is a deed
The other letters, in their order, are similarly em- book N 5, or volume 86. In the department of internal
ployed. See further Exhibit, 2. affairs at Harrisburg, Pa., the patent books (early
In the old States, Tolumes containing recorded in- numbers of which contain the giants from Willitun
struments were formerly, and perhaps are still, desig- Penn) are designated as A 1 to 20, AA 1 to 16, P 1 to 65,
jiated by letters, or by letters and numbers; as, A, H 1 to 74; and there is also in use a second series of
or A 1 ; B, or B 1 ; A 2, B 2; AA, BB. To avoid errors account books designated as AA, BB, etc., to HH 4,
and confusion in copying references, some of the which last is in use in 1888.
letters, as J, K, N, XT, V, Y, were not used.' 1 58 N. H. 3, 4, 8, 7, et seg.
' 1 Abb. Pr. B. o. s. 1; id., vols. I-ZIX.
' In the superior court of Baltimore, city, Md., this " See Webster's Diet. p. 1782; Chambers' Ency., tit. A.
2>ractice, which was begun in 1651, continued to 1797; * Nat. Union Bank v. Copeland, 141 Mass. 266 (1886).
(1)
 ABANDON

Where directors are empowered to issue a note A vinculo. See A mensa, etc.
or accept a bill of exchange, they may give several AB. L. From.
notes or bills, equal to the sum specified.' See Atrz;
The. Takes the place of a before a vowel sound. See
5. The Latin preposition : from, away from, A, 5; Abs.
Ab assuetis. See Injtdeia, Ab assuetis.
by, in, on. Compare AB.
Ab inconvenient!. From hardship, q. v.
A fortiori. With stronger (reason) ; with
more right ; much more. Ab initio. From the beginning ; from in-
ception.
A private person, and a fortiori a peace-officer,
present when a felony is committed, is bound to arrest A contract is said to be illegal, a writ, an action, or
the felon. 2 a service, irregular or .void, ab initio. See Trespass.
Ab initio.
A multo fortiori. By far the stronger— reason,
Ab intestate. From an intestate (owner).
right, equity.': *
A gratia. Out of favor ; from mere in- Ab invito. By one unwilling: unwill-
dulgence, and not of right. See Gkace. ingly. See Im VITUS.
A latere. By the. side: collaterally. Ab irato. By one in anger — displeased.
Said of succession to property; but now of rare oc- A gift, bequest or devise, adverse to the interest of
currence. any heir is sometimes said to be made ab irato.
A meusa et thoro {toro). From table ABAWDON.i To relinquish, surrender,
and bed : from bed and board. A vinculo disclaim, desert, forsake, give up wholly.
matrimonii. From the bond of matri- Whence abandonment, non-abandonment,
mony. and (though rare) abandoner, abandonee.
As, to abandon property, a relation, a proceeding —
The former describes a " partial " divorce: separa- any species of right.
tion of the parties by law, with all rights preserved;
"Abandon" Includes the intention and the external
the latter, a "total " divorce: complete dissolution of
the marriage relation with all incidental rights. See act by which it is carried into effect.^
further Divorce. To constitute an abandonment of a right,
A nativitate. From birth, from infancy. there must be an unequivocal and decisive
The legal settlement of an idiot a nativitafe is that act of the party showing a determination
of his father. 5 not to have the benefit designed.' See Es-
A posteriori. From what comes after — toppel.
the effect. A priori. From what goes be- For example, a homestead is abandoned by
fore — the cause. an act which shows an intention wholly to
Beasoningfrom an effect back to its supposed cause
relinquish it; not by temporary absence.^
is described as a posteriori; reasoning or argument A statute may require that this intention be proven
from an assumed cause to the result it may or must
by a declaration duly executed and recorded.^
produce is termed a priori.*
There is a difEerence between " abandon-
' A prendre. F. See Profit, A prendre.
ing" and "surrendering" a right or thing;
A quo. From which.
As, the court a quo a cause has been removed, between giving it up because regarded as use-
by an appeal or a writ cf error. Correlative ad guem, less, and assigning or transferring it to an-'
to which. See further Qui, Quo. other as valuable. When one surrenders a
A retro. In arrear, q. v. thing by solemn agreement in writing, he
A sOciis. From its associates ; from its certainly does not " abandon" it in the sense
surroundings; from the context. See fur- in which that word is generally under-
ther NOSCITUB.
A teneris annis. From tender years ; by sto d. ^
1. Property. An object of property re-
reason of youth. See NEauGENCE. mains the owner's till such time as he does
A verbis legis. See Lex, A verbis, etc. some act which shows an intention to aban-
don it ; then it becomes publici juris once
> Thompson v. Wesleyan Association, 65 E. C. L. 849
(1849). See also Sharfl v. Commonwealth, S Binn. *B16, 1 F. a, to; fcaTir, to proscribe, give up. See Ban.
519 (1810). " Livermore v. White, 74 Me. 465 (1883), Appleton, C. J.
2 4 Bl. Com. 293. s [Dawson v. Daniel, 2 Flip. 309 (1878), Hammond, J.
» 100 U. S. 633. <Hurtu Hollingsworth, 100 U. S. 104(1879); 29'
Minn. 20.
* Although strictly terms in logic, these expressions
are so common in law language that they may be con- 5 Tipton V. Martin, 71 Cal. 328 (1886); Cal. Civ. Code,
sidered quasi legal.
' Shippen v. (Jaines, 17 Pa. 42 (1851). §§ »1243^4.
[Hagan v. Gaskill, 42 N. J. E. 217 (1886), Bird, V. C,
 ABANDON ABANDON

more, liable to appropriation by the next oc- of receiving at once the whole amount of
cupant. 1 the insurance, relinquishes to the under-
" If a man be dissatisfied with his immovable estate writers all his property and interest in the
and abandou it, immediately he departs from it cor- thing insured, as far as it is covered by the
porally, with the intention that it shall no longer be
his; and it will become the property of him who first policy, with all the claims that may ensue
enters thereon."" See Dekeliction, S. from its ownership, and all profits that may
Property is abandoned when it is thrown away, or arise from its recovery, i
its possession is volimtarily forsalcen by the owner, —
The yielding up or surrendering to the in-
in which case it will become the property of the first
surer by the insured of his interest in the
occupant; or, when it is voluntarily lost or left without
the hope or expectation of again acquiring it, — then it
becomes the property of the finder, subject to the property.2
Usually made by the owner of the property when
superior claim of the owner; except that in salvage informed of the peril or loss. He gives the insurer
cases, by the admiralty law, the finder may hold pos- notice of the abandonment, the effect of which is to
session until he is paid his compensation or till the place the insurer in his position to the extent of the
property is submitted to legal jurisdiction for ascer- interest insured."
tainment of the compensation.' See Find, 1. To be made within reasonable time ; which is a ques-
To an abandonment of '' land " there must be a con- tion of fact and of law. No particular form is neces-
currence ofthe act of leaving the premises vacant, so sary, nor need it be in writing; but it should be ex-
that they may be appropriated by the next comer, plicit, and not left to be inferred from equivocal acts.
with an intention of not returning.* See Vacant. The insured must yield up all his interest in the sub-
No rule of law, applicable to all cases, can be laid ject. Regularly made, operates as a transfer of the
down, as to what change of a " station " will constitute property to the underwriter.'
an abandonment or relocation. Every relocation in- " The right of abandonment does not depend upon
Tolves, in one sense, an abandonment of the old the certainty, but on the high probability, of a total
station. B loss, either of the property or of the voyage, or both.
The abandonment of an "easement" imports a The insured is to act, not upon certainties, but upon
non-user of it. All acts of enjoyment must have probabilities, and if the facts present a case of extreme
totally ceased for the same length of time that was hazard, and of probable expense exceeding half the
necessary to create the original presumption.* See value of the ship, the insured may abandon; though
Easement. it should happen that she was afterward recovered at
A person may abandon an " invention " in two less expense." If the abandonment, when made, is
senses: (1) When he gives up his idea, abandons it in good, the rights of the parties are definitely fixed, and
the popular sense, relinquishes the intention of per- do not become changed by subsequent events; if not
fecting it,so that another person may take' up the good, subsequent circumstances will not impart va-
same thing and become the original and first inventor;
lidity to it.*
Where the interest insured is that of a part owner,
(2) when, having made an invention, he allows the
public to use it without objection.' See Patent, 2. or when the entire owner insui'es some definite part,
In the law of marine insurance, abandon- the abandonment is limited to a cession of the insured
interest; but, when the insurance reaches every part
ment isthe act of cession, by which in cases
of the ownership indiscriminately, the abandonment
where the loss or destruction of the prop- extends to the entire property, though its value ex-
erty, though not absolute, is highly immi- ceeds the amount of the insurance. For the protec-
nent, or its recovery is too expensive to be tion of the underwriter, the abandonment relates
worth the attempt, the assured, on condition back to the date of the loss.' See Dekeliction, 3;
Loss, 2.
The doctrine is not applicable to fire insurance,'
1 [1 Bl. Com. 9-10.
= Partidas, S, Tit. 4, law 50; Sideck v. Duran, 67 Tex.
262 (1887), cases. " 3 Amould, Mar. Ins. 913.
'Eads V. Brazelton, 22 Ark. 509 (1861), cases. Fair- ' [Merchants', &c. Mar. Ins. Co. v. DufSeld, 2 Handy,
child, J. 137 (Ohio, 1855).
« Judson V. Malloy, 40 Cal. 310 (1870), Rhodes, C. J. ' Chesapeake Ins. Co. v. Stark, 6 Cranch, C. C. 273
'Attorney-General u. Eastern R. Co., 137 Mass. 48 (1810), Marshall, C. J. ; Patapsco Ins. Co. v. Southgate,
(1884). 5 Pet. 631 (1831); The City of Norwich, 118 U. S. 492, 506
See also 64 Dl. 238; 49 N. T. 346; 2 Johns. 98; 9 Pa. (1886); 4 Pet. 144; 4 B. Mon. 644; 6 Ohio St. 208; 18 Mo.
273; 81 W. Va. 286; 40 Am. Dec. 464, n.; 2 Washb. Real Ap. 350-51; 3J E. C. L. 110-30; 3 Am. Mar. Ins. 913-
Prop. 370.
942; 2 Pars. Mar. Ins. 111-200.
•Coming v. Gould, 16 Wend. 535-36 (1837), cases; « Bradhe v. Maryland Ins. Co., 12 Pet. 397 (1838), Story,
3 Mas. 27S. J., quoting 3 Kent, 321; Marshall v. Delaware Ins. Co.,
' [American, &c. Dressing Machine Co. v. American 4 Cranch, 306 (1808). Same cases approved. Orient
Tool Co., 4 Fish. P. C. 399 (1870). And see Planing- Mut. Ins. Co. V. Adams, 123 U. S. 67 (1887), Harlan, J.
Machine Co. v. Keith, 101 U. S. 485 (1879); Bump, Pat- 'The Manitoba, 30 F. R. 129 (1887).
ents, 246. ' May, Ins. §421o.
 ABATE ABATE

3. Relation or Duty. The relation of hus- Abatement. Demolition, destruction,

band and wife, of parent and child, or of diminution, removal, suspension.
master and servant.
In equity pi'actice, a suspension of pro-
' (1) The act of a husband in voluntarily- ceedings in a suit from want of parties
leaving his wife with an intention to fqrsake capable of proceeding therein, i
her entirely,— never to return to her, and 1. Abatement of a freehold ; of an es-
never to resume his marital duties toward tate. Where a person dies seized of an in-
her or to claim his marital rights.! heritance, and, before the heir or devisee
Such neglect as either leaves the wife des- enters, a stranger, who has no right, makes
titute of the common necessaries of life, or entry and gets possession of the freehold.^
would leave her destitute but for the charity Compare Amotion, 1.
of others.2 3. Abatement of a legacy. The re-
Exists when a man fails to supply his wile with such duction of a legacy, in case of insufficiency
necessaries and comforts of life as are within his of assets to pay all debts and other legacies.
reach, and by cruelty compels her to quit him and First, general legacies, and then specific legacies,
seek shelter and protection elsewhere. ^ See further abate proportionately.
Cause, 1 (2), Reasonable; Desertion, 1; Divorce. The rule is that where bequests are made in the
(3) The act of a parent in exposing an in- form of a general legacy, and are pure bounty, and
fant of tender years (usually under seven) in there is no expression in or inference to be drawn
from the will manifesting an intention to give them
any place, with intent wholly to desert it.* priority, in case of a deficiency of funds to pay them
See Dispose, 3. in full, they abate ratably; on the principle that
(3) For an apprentice, a sailor, or a soldier, equality is equity.' See Legacy.
to quit his service, intending not to return to 3. Abatement of a nuisance. The re-
it. See Desertion, 3, 3. moval of a nuisance.
3. Of Legal Proceedings. Voluntary, when Whatever unlawfullyannoys or doeth dam-
of the plaintiff's own accord ; involuntary, age to another may be abated, i. e., taken
when the defendant compels him either to away or removed by the party aggrieved
abandon or to continue the action. See Non- thereby, he committing no riot.*
suit; IfETBAXIT. An injunction may prevent, and a verdict for dam-
ABATE.5 To quash, beat down, de- ages may punish, but neither will " abate " a nui-
sance.5 See further Nuisance.
stroy.6 4. Abatement of a writ. Quashing or
"Abating" is used in three senses. The setting it aside on account of some fatal de-
first and primitive sense is that of beating
down a nuisance ; the second, that of abating fect init.^
A plea in abatement is one mode. Sometimes it is
a writ or action — its overthrow or defeat by the duty of the court to abate a writ ex officio. Where
some fatal exception to it ; in the third de- the writ is a nullity, so that judgment thereon would
notes that the rightful possession or freehold be incurably erroneous, it is de facto abated.'
of an heir or devisee is overthrown by the Plea in abatement. Matter of defense
rude intervention of a stranger. ^ which defeats an action for the present, be-
In such expressions as to abate a demand, duties, cause of a defect in the writ or declaration.s
rents, taxes, the word has no distinctly technical Such plea is: (1) of the writ — tor an irregularity,
meaning. Compare Rebate. defect, or informality, in its terms, form, issue, serv-
Abater; abator. He who actually re- ice or return, or for want of jimlsdictiou m the court;
moves anuisance; also, he who abates a free- (2) to the action — as misconceived, or because the
right has not yet accrued, or because another action is
hold. See 1, infra.
pending;! (3) fg j^g declaration, on account of — (a)

> [Moore v. Stevenson, 27 Conn. 25 (1858), Ellsworth, J. > See Story, Eq. PI. §§ 20, n, 854.
= 3B1. Com. 168.
A feme-sole trader law.
= [Washburn v. Washburn, 9 Cal. 476 (1858), Field, J. ' Titus V. Titus, 26 N. J. E. 114, 117-19 (1875), cases,
A divorce case. Runyon, Ch. ; Brown v. Brown, 79 Va. 650 (1884), cases
s Levering v. Levering, 16 Md. 219 (1860), Bartol, J. « [3 Bl. Com. 5, 168.
A divorce case. = Rufl V. Phillips, 50 Ga. 132 (1873).
4 See State v. Davis, 70 Mo. 468 (1869); 4 Bl. Com. 198. ' [3 Bl. Com. 168, 302.]
• F. abattre: L. ab-batuere, to beat down, prostrate. ' Case V. Humphrey, 6 Conn. 140 (1836).
' Case V. Humphrey, 6 Conn. 140 (1826). 8 [3 Bl. Com. 302. See also Steph. Plead. 47- Gould
' [3'Bl. Com. 168. Plead. 235.
 ABBREVIATIONS
ABET

the misnomer of a party; (b) the disability ot a ten out could be. Their general use makes them
party: ' alienage, infancy, coverture, lunacy, im- known to all men. But unexplained initials, as, for
prisonment, non-existence of a corporation ; (c) a example, initials referring to public land sm^eys,
privilege (g. v.) in the defendant; (d) non-joinder or may not be employed in an indictment, i
mis-joinder of parties; (e) a departure as between the ABDUCTION.2 Taking away a wife,
writ and the declaration; (f) a variance between the
child, or ward, by fraud and persuasion, or
writ and the instrument sued upon.
If the action be such as survives (g. v.), the repre- open violence. 3
sentative of a deceased party may be substituted.^ In private or civil law, the act of taking
Pleadable to an indictment, but chiefly for mis- away a man's wife by violence or persua-
nomer.'* 1
Because they are dilatory, pleas in abatement are
not favored. Each plea must give a better writ, i. e.,
In criminal law, the act of taking away or
sion.*
show how the writ may be amended. Each must also detaining a woman either against her own
precede a plea to the merits,^ i and a plea in bar;* and will, or, in the case of a minor, against the
be verified by af&davit. will of her parents or other person having
Judgment upon a plea is, for the plaintiff — re-
spondeat oiister, that the defendant answer anew; for the lawful cliarge of her.*
the defendant — quod billa cassetur, that the writ be Any unlawful seizure or detention of a
made void or abated.* female. 6
See Amendment, 1; Quash; Plea; Pleadino; Re- The taking may be accomplished by solicitations or
vive, 1. Compare Bab, 3, Plea in. inducements, as well as by force. This, at least, is
ABBREVIATIONS. A judge may, the intention of the California statute which punishes
without proof, determine the meaning of the abductions for purposes of prostitution.'^ In New
York, also, it must be proved that there was persua-
customary abbreviations of Christian names,^ sive inducement on the part of the accused, for the
names of offices,' names of places,^ and com- purposes of prostitution; mere permission or allow-
mon words. 9 See Ambiguity; Name, 1. ance to foUow such a life is not enough. And proof
See, in this book, particular words, and the collec- must be given, aside from the testimony of the alleged
tions of abbreviations at the beginning of each letter. abducted female, of the taking and the specific intent.'
In declaring upon an instnament containing abbre- Harboring against the will is abduction. Not, pro-
viated terms, extrinsic averments may be used to tection against abuse, nor shelter given after the par-
make them intelligible; and evidence of the sense in ent or guardian has relinquished the right of control.
which the parties were in the habit of using the abbre- Every abduction includes a false imprisonment. The
viations, and of their conventional meaning, is admis- remedies are trespass vi et artnis for damages, and
sible, but not to show the intention of one party in indictment for the assault and battery.' See Kidnap-
using them.^° ing; Sekvitcde, 1.
Generally, in indictments, common words are to be ABET.ii* To aid, encourage, promote the
used as descriptive of the matter. Abbreviations of commission of an offense ; to incite a person
terms employed by men of science or in the arts will
not answer, without full explanation of their meaning to commit a crime. Whence abettor, abet-
in common language. The use of A. D., year of our ment. See Accessary; Aid, 1.
Lord, because of itsTiniversality, constitutes an excep- If men who are present at a quarrel encourage a
tion. Arabic figures and Roman letters have also battery, they thereby assume the consequences of the
become indicative of numbers as fully as words writ- act, equally with the party who does the beating;
often, indeed, they are more culpable. It is not nec-
iCookv. Burnley, 11 Wall. 668 (1867). essary that encouragement should consist of appeals.
" Society for Propagation of the Gospel v. Town of It is enough that they sanction what is being done, and
Pawlet, 4 Pet. 501 (1830;.
MBl.'Com. 334. I United States o. Reichert, 32 F. R. 147 (1887),
4 Baltimore, &c. R. Co. v. Harris, 13 WaU. 84 (1870;; Field, J. See Bish. Contr. g 377
Pomter v. State, 89 Ind. 267 (1883). " L. ab-ducere, to lead away.
<'3 Bl. Com. 803-3. See generally Gould, Plead. sSee 8 Bl. Com. 139; Carpenter v. People, 8 Barb.
235-78; Stephen, Plead. 47-51. 606 (1850); State v. George, 93 N. C. 670 (1885).
• Gordon's Lessee v. Holiday, 1 Wash. 289 (1805); 4 3 Stephen, Com. 437.
Weaver v. McElhenon, 13 Mo. 90 (1850); Stephen v.
" [Sweet's Law Diet.
State, 11 Ga. 241 (1852). "See 1 Russell, Crimes, 9 Am, ed., 940; 5 Strob. (S.
' Moseley's " Adm'r " i). Mastin, 37 Ala. 221 (1861). Car.) 1.
8 Ellis V. Park, 8 Tex. 205 (1862); Russell v. Martin, 15 ' People V. Marshall, 59 Cal. 388 (1881).
» People V. Plath, 100 N. Y. 590 (1885), oases, Ruger,
id. 238 (1855). ■ '
•Jaqua v. Withara, &c. Co., 106 Ind. 547-48 (1886); C. J. ; Penal Code, | 282; Laws 1884, c. 46, § 2; amended,
Dana v. Medler, 12 N. Y. 40, 46 (1854); 1 Greenl. Ev. Laws 1886, c. 31.
§ 282; 2 Whart. Ev. § 1003; Best, Ev. 232, 262. » 3 Bl. Com. 139-41. As to place, see 6 Cr. L. Ht.
>» Jaqua i;. Witham, &c. Co., 106 Ind. 547-48 (1886), 357-60 (1884), cases.
cases; Robinson v. Kanawha Bank, 44 Ohio St. 441 "> F. a-beier, to bait, lure on.
 ABEYANCE ABORTION

manifest this by demonstrations of resistance to any proceedings), although it does not oblige the defend-
who might desire to interfere to prevent it; or by ant to attend court personally and consecutively, yet
words, gestures or acts, indicating approval.' it does require him to take notice, by himself or his
ABEYAJJTOE.^ In expectation, remem- representative, of each step in the proceeding, and to
brance, and contemplation of law; in sus- attend personally when by law necessary.'
" To abide and satisfy " a judgment or order is to
\ pense.3 perform, execute, conform to, and to satisfy it; that is,
Subsisting in contemplation of law.* to carry it into complete effect.''
In abeyance : undetermined.
Abiding conviction. Of guilt — a set-
Said of a fee or a freehold when there is no tled and fixed conviction, a conviction which
person in esse in whom it can vest and abide : may follow a careful examination of the
though the law considers it as always poten- whole evidence in the case.'
tially existing, and ready to vest when a ABILITY. See Capacity; Disability;
proper owner appears.' Pecuniary; Rehabilitate; Responsible.
Thus, in a grant to A for life and then to the heirs ABLEGATUS. See Minister, 3.
of B, the fee is not in A or B, nor can it vest in the
ABODE. The place where a person dweUs.
'* heirs " of B till after his death : it therefore remains
Prescribed as the criterion of the residence
in waiting or abeyance, during the life of B.^
It is a maxim of the common law that a fee cannot required to constitute a legal voter, nothing
be in abeyance. The maxim rests upon reasons that more than a domicil, a house, which the party
have now no existence, and it is not now of universal
is at liberty to leave, as interest or whim may
application. Even where it still applies, being a com-
dictate, but without any present intention to
mon-law maxim, it must yield to a statutory provision
inconsistent with it — as, the Confiscation Act of 1862. ^
change
The place it.* where a college is situated may or may
The franchise of a corporation may be in abey-
ance; 'so may a grant of land to a charity.^ In this not be a student's permanent abode. To such as are
category, also, are all property rights pf a bankrupt free from parental control, and regard the place as
until final adjudication; ? and, a capture unti} a prize their home, having no other place to which to return
court has passed upon it.'" in case of sickness or affiiction, it is, pro hoc vice, their
ABIDE. To await; as, in saying that home, their permanent abode.*
costs abide the event of the suit. A college student may be both a voter and a stu-
dent; and if he in good faith elects to make the place
Abide by. To conform to, obey. his home, to the exclusion of all other places, he may
" To abide by an award " is to stand by the acquire a legal residence, although he may intend to
determination of the arbitrators, and take remove from such place at some fixed time, or at some
the consequences of the award ; to await the indefinite period in the future.' See Domicil.
award without revoking the submission ; not, ABOE.TIOlf.6 The act of miscarrying,
necessarily, to acquiesce in, or not to dispute or producing young before the natural time,
or before the foetus is perfectly formed ; also,
the award.ii
The language employed in arbitration bonds, " to the foetus itself so brought forth.''
abide by the award," is to prevent the revocation or "Miscarriage" means bringing forth the
breaking of the contract of submission, rather than to foetus before it is perfectly formed and ca-
apply to the actual finding of the arbitrators.'''
In a bond " to appear and abide the order of the pable of living. The word "abortion" is
equivalent to miscarriage in its primary
court," means to perform, to execute, to conform to,
such order. An obligation to appear and abide the meaning ; but it has a secondary meaning, in
final order anU judgment (in force through the entire
which it is used' to denote the off-spring.8
At common law an indictment will not lie for an at-
' Frantz v. Lenhart, 56 Pa. 367 (1867). See 50 Conn. tempt to procure an abortion with the consent of the
101, 93.
2r. abeiance, suspension, waiting: abayer, to ex- ' Hodge V. Hodgdon, 8 Cush. 297 (1851), Shaw, C. J.;
108 Mass. 585; 30 Kan. 88; 13 E. 1. 125; 7 Tex. Ap. 38.
pect.
3 2B1. Com. 107, 216, 318. " Erickson v. Elder, 34 Minn. 371 (1885), Berry, J.
' i Kent, 260. s [Hopt V. Utah, 120 U. S. 439 (1887), Field, J.
li 2 Bl. Com. 107. « Dale V. Irwin, 78 HI. 181 (1875): 111. E. S. 1874. See
« WaUach v. VanEiswick, 92 XT. S. 212 (1875). Fry's Election Case, 71 Pa. 302 (1872); McCrary, Elec-
' Dartmouth College D.Woodward, 4 Wheat. 691 (1819). tions,34.
§
"Town of Pawletu. Clark, 9 Cranch, 333 (1815). spedigo V. Grimes, Ind. Sup. Ct. (Nov. 1887), cases;
» Bank v. Sherman, 101 U. S. 406 (1879). Sanders v. Getchell, 76 Me. 165 (1884); Vanderpoel v.
' » 1 Kent, 103. See also 5 Mass. 555; 16 id. 464. O'Hanlon, 53 Iowa, 249 (1880), cases.
"Shaw V. Hatch, 6 N. H. 163 (1833). 8 L. abortio, untimely birth.
'"Marshall v. Eeed, 48 N. H. 40 (1868); 17 id. 461; 35 ' [Butler V. Wood, 10 How. Pr. 224 (1854).
id. 198. 8 Mills V. Commonwealth, 13 Pa. 633 (1850), Coulter, X
 ABOUT ABRIDGE

mother, until she is " quick with child." It was con- a" quantity materially less than that number of
sidered that the child had an independent existence
only when the embryo had advanced to the degree of " About forty acres " Implies that the actual quan-
tons.'
maturity designated by that phrase, although, in ref- tity is a near approximation to forty acres." See
erence to civil rights, an infant in ventre sa mere was Estimate; Moke or Less.
regarded as a person in being.' See Quiokenimo. ^3. Imports not only nearness of time, qual-
It is a flagrant crime at common law to attempt to
ity, or degree, but, also, making preparation
procure a miscarriage or an abortion. By that law it
is not the murder of a living child which constitutes to do a thing, or being actually engaged in '
the offense, but the destruction of gestation by wiclsed doing it.*
means and against nature. =* A man is about to convert his property into money
Notwithstanding an infant in ventre is treated by when he is near doing it, is making preparations to
the law, for some purposes, as born, or as a human do it, is actually about to dispose ot the property.*
See Abscond.
being, yet it is otherwise with reference to maldn^ the
act of causing its miscarriage murder, unless so de- ABOVE. Upper, higher; superior.
clared by statute. When the infant is born it becomes "Above all iucmnbrances " means in excess of such
a human being, within the meaning of the law; and if incumbrances.*
it should die by reason of potions or bruises received Court above. The court to which a cause
in the womb, it would be murder in the person who is removed.
administered or gave them, with a view of causing a
miscarriage.' See Malice, Constructive. Defendant above. The party who is de-
Abortion, as a crime, is found only in modern stat- fendant before an appellate court. Plaint-
utes and treatises. No mention is made of it in the
iff above. The plaintiff in an appellate court.
ancient common-law writers.*
Opposed — court, plaintiff, and defendant below.
The intent not being specifically to talie life, some See Bail Above. Compare Supra.
States have made the offense a statutory felony, and
ABBIDGE.5 1. To shorten, condense;
pimish any unlawful attempt to procure a miscarriage. °
The woman cannot be indicted as an accomplice.* to epitomize, reduce, contract.
A reasonable abridgment of a copyrighted publi-
Abortionists^ articles are non-mailable,^ and non-
importable.^ See Attempt; Decoy. cation ispermitted as a new production, involving in
its preparation intellectual labor. Not so as to a inere
ABOITT. 1. Carrying weapons concealed
colorable reduction, which is not real nor fair and
"about" the person means: near, in close does not require invention and judgment. What con-
proximity, within convenient control and stitutes afair and reasonable abridgment is a ques-
easy reach. 9 tion difficult to answer. But a mere selection, or dif-
ferent arrangement of parts, so as to bring the work
2. In close proximity to ; closely approxi-
mating. into a smaller compass, is not such abridgment.
There must be real, substantial condensation of the
An agreement to furnish "about 1000 tons" of materials, and intellectual labor and judgment be-
metal per month will not allow the shipment of
stowed thereon; and not -merely the facile use of
1 Commonwealth v. Parker, 9 Mete. 360 (1845), Shaw, scissors, or extracts of the essential parts.'
C.J.
A "compilation" consists of selected ex-
2 Mills V. Commonwealth, ante. Commented on in
cases below, especially in Mitchell v. Commonwealth, tracts from different authors; an "abridg-
78 Ky. 206-7 (1879). ment " is a condensation of the views of one
'Abrams v. Foshee, 3 Iowa, 278-79 (1856). To same
author.7
The former cannot be extended so as to convey the
effect. State v. Cooper, 22 N. J. L. 63-58 (1849), cases;
Smith V. State, .33 Me. 54-55 (1851), cases ; State v. Moore, same knowledge as the original work; the latter con-
S5 Iowa, 131-37 (1868), cases; Evans v. People, 49 N. Y.
88 (1872); State v. Dickinson, 41 Wis. 309 (1877), cases; 1 Norrington v. Wright, 115 U. S. 204 (1885). And see
Mitchell V. Commonwealth, 78 Ky. 204 (1879); State v. Brawley v. United States, 96 id. 171-72 (1877).
Slaglo, 88 N. C. 653 (1880). And see 10 Cent. L. J. 338; » Stevens v. McKnight, 40 Ohio St. 341 (1883). See
4 Bl. Com. 201; S Whart. Cr. L. § 1220. also Baltimore Land Society v. Smith, 64 Md. 208
* State V. Cooper, 22 N. J. L. 55, 53-58 (1849), cases; 3 (}880); 16 C. B. 36; 44 L. T. R. 153.
Coke, Inst. 60; 1 Bl. Com. 129. = [Hockspringer v. Ballenburg, 16 Ohio, 308, 312 (1847):
'See Commonwealth v. Wood, 11 Gray, 85 (1858); 69 Tex. 385. See also Von Lingen v. Davidson, 4 F,
Commonwealth v. Boynton, 116 Mass. 343 (1874); Com- R. 350 (1880); s. c. 11 Rep. 5.
monwealth V.Felch, 132 id. 22 (1882); Commonwealth * Williams v. McDonald, 42 N. J. E. 395 (1886).
V. Taylor, ib. 261 (1882); State v. Watson, 30 Kan. 281 ^ F. abregier, to shorten.
(1883); Commonwealth v. Bailing, 113 Fa. 37 (1886); 3 • Folsom V. Marsh, 2 Story, 107, 115 (1841), Story, J.
Whart. Cr. L. §§ 1220-28. Concerned letters reprinted from "Sparks' Life of
« People V. Tedder, 98 N. Y. 630, 632 (1885), cases.
' Act 3 March, 1879; 1 Sup. E. S. p. 229. ' Story's Executors v. Holcombe, 4 McLean, 308-14
Washington."
fR. S. |§ 2491-93; Act 3 March, 1883, 22 St. L. 489, 490. (18471, McLean, J. Concerned an abridgment of
« State V. McManus, 89 N. C. 668 (1883). " Story's Commentaries on Equity Jurisprudence."
 ABEOAD ABSOLUTE

tains an epitome of tlie work abridged, and, conse- An absent and absconding debtor is one
quently, conveys substantially the same knowledge.
The former cannot adopt the arrangement of the
who lives without the State, or intentionally
works cited, the latter must adopt the arrangement of conceals himself from his creditors, or with-
the work abridged. The former infringes the copy- draws himself from the reach of their suits,
right if the matter transcribed, when published, im- with intent to frustrate their demands, i
pairs the value of the original work ; but a fair abridg-
It a debtor departs from his usual residence, or re-
' meut, though it injures the original, is lawful. To mains absent therefrom, or conceals himself in his
" abridge " is to epitomize, to reduce, to contract. To house, so that he cannot be served with process, with
copy certain passages from a book, omitting others, is intent unlawfully to delay or defraud his creditors, he
in no sense an abridgment: the judgment is hot exer- is an absconding debtor." See Absent.
cised in condensing the author's views; his language
ABSENT. Being away : away, not pres-
is copied, not condensed. To " abridge " is to preserve
the substance, the essence of the work, in language ent; not at one's domicil or usual place of
suited to such purpose.' business; out of the jurisdiction. Compare
An abridgment of an original work, where intellect- Presence.
ual labor and judgment are involved, made and con- Absentee. A person who has resided ia
densed byanother person, without the consent of the the State and has departed without leaving
author, is not an infringement of a copyright on the
original, especially as to histories, translations, and any one to represent him ; also, a person who
abridgments not of a character to supersede the orig- was never domiciliated in the State and re-
inal.' See further Compile; Piraot, 2. sides abroad. 2
2. "Abridgment" has also been used to Absence does not necessarily mean out of the State;
describe a book in which the substance it may refer to cases of default without service of pro-
cess. Where the presence of a defendant is not se-
of reports, or of the rules of law to be' de- cured by appearance or service of summons to appear,
duced from them, are concisely and more a judgment rendered upon his involuntary default is
or less systematically stated. ^ Compare Di- rendered " in his absence." ^ See Abscond.
gest. Notice by publication (g. v.) is often given to absent
defendants.
3. To subtract, diminish, limit, curtail, re-
strict, discriminate against. Brief or temporary absence from a dwelling-house,
in the law of arson, burglary, and insxu'ance (gg. v.),
" No State shall make . . . laws which shall
abridge the privileges or immunities of citizens of the does not, as a rule, affect the owner's rights.
United States." <
ABSOLUTE.* Exclusive; without con-
The exercise of any right may be regulated by law. dition or incumbrance ; complete ; perfect ;
The right to pursue a lawful employment is not final ; opposed to conditional, qualified, rela-
"abridged," within the Fourteenth Amendment, by tive: as.
an ordinance which merely prescribes the reasonable
conditions under which such business may be carried Absolute or an absolute — acceptance,
on.' See Citizen. alienation, allegiance, bail, bond, confirma-
ABROAD. In English chancery law, be- tion, conveyance, decree, delivery, divorce,
yond the seas. See Deposition ; Sea. estate, fee, guaranty, nullity, ownership,
ABKOGATE. See Repeal; Eescind. possession, privilege, property, right, rule,
ABS. The form of a or db (from) in com- sale, waiver, warranty, qq. v.
Absolute means complete, unconditional, not relar
position. See A, 5.
tive, not limited, independent of anything extraneous.
ABSCOiND.e To hide, conceal or absent
In the sense of " complete, not limited," distinguishes
one's self clandestinely, with intent to avoid an estate in fee from an estate in remainder. In the
legal process.' sense of " imoonditional," describes a bond, a convey-
In an attachmeut-of-debtor law, may not apply to ance, or an estate without condition. In the sense of
an act.'about to be done.' See About, 3. " not relative," describes the rights of a man in a state
of nature, as contradistinguished from those which
pertain to him in his social relations. Characterizes
' Story's Executors v. Holcombe, 4 McLean, 308-14 a pure estate, unmixed and unconnected with any
(1847), ante. peculiarities or aualiflcations; a naked estate, freed
" Lawrence v. Dana, 4 Cliff. 79-86 (1869), cases, Clif- from every qualification and restriction, in the donee-
ford, J. Concerned an infringement of the copyright Thus, it may describe an estate given to a married
of " Wheaton's Elements of International Law."
s See 1 Bl. Com. 72; 1 Kent, 607; Stoiy's Misc. Writ.
79; North Am. Bev., July, 1826, pp. 8-13. > Fitch V. Waite, 5 Conn. 121 (1823).
* Constitution, Amd. XIV. 2 Morris v. Bienvenu, 30 La. An. 880 (1878): Civ.
» Re Bickerstafl, 70 Cal. 88-40 (1886), oases. Code, art. 3556.
* L. dbs, away; condere^ to hide. s James v. Townsend, 104 Mass. 371-78, 369 (1870).
'Bennett v. Avant, 2 Sneed, 153 (1854). * L. ab-solvere, to free from, set free. '
 ABSQUE ACADEMY

woman, without the exclusion of the husband, in dis- of the most important parts of the deeds and
tinction from an estate qualified with that exclusion. other instruments composing the evidences
The most usual acceptation, when used of estates, is,
of a title to real estate, arranged usually in
not independent, but the opposite of partial or Condi-
tional.^ chronological order, and intended to show
Absolute is often used as the opposite of "condi- the origin, course and incidents of the title,
tional "and in the same sense as " perfect." It signi- without the necessity of referring to the
fies without any condition or incumbrance.'
That is an absolute interest in property which is deeds themselves. It also contains a state-
so completely vested in the individual that he can by ment of all charges, incumbrances, and lia-
no contingency be deprived of it without his own con- bilities to which the property may be sub-
sent. "Absolute " may be used synonymously with jected, and of which it is in any way material
"vested," and as contradistinguished from contingent
or conditional ; as in speaking Of the absolute property for purchasers to be apprised.!
The person preparing a perfect abstract must fully
of an assured.'
understand all the laws on the subject of convey-
ABSQUE. L. Without; except. ancing, descents, uses, trusts, devises, — every branch
Absque hoe. Without this. Absque of the law that can affect real estate in its mutations-
tali causa. Without such cause. from owner to owner.*
Technical words of denial at common law. The ABUNDANS. See Cautela.
former introduces the negative part of a special ABUSE.3 1. An improper use ; a custom
traverse and follows the affirmative part or induce- or practice contrary to the intendment of law
ment. The latter denies the matter of a plea by which
defendant seeks to excuse a tortious act. See further, or to good morals.
Traverse. Common expressions are: the abuse of authority,
of discretion, of a thing bailed, of process, of a dis-
ABSTBACT.* 1, v. To take or withdraw tress, of a prisoner; of the hberty of free speech; of a,
from ; to remove or take away. witness, qq. u.
Under § 5209, Rev. St., an officer of a national 2. The synonym of injure; in its largest
bank may be guilty of " abstracting " funds, money,
sense, ill-use or improper treatment of another
and credits, without any animus furandi. The stat-
ute may be satisfied with an intent to injure or de- person or of a dumb animal. Compare Cru-
elty.
fraud some company, body politic or corporate, or
individual person, other than the banking association In a statute punishing the deflowering of a female
whose property is abstracted, or merely to deceive child, is limited by the words with which it is con-
some other officer of the association, or an agent ap- nected referring to the same subject-matter. The
pointed to examine its affairs." term itself includes physical injury, which is also-
To abstract a public record for the purpose of de- included in the words " carnally knew." Our statutes,
stroying or mutilating it has been generally made a following the English, describe the offense by the
criminal offense. words " unlawfully and carnally know and abuse any
2, n. That which is drawn off: an epit- woman child under the age of ten years." * See Sesjuo-
TION.
ome, a summary.
ABUT. To touch or meet. Compare
Referring to records, ordinarily a brief,
Adjoining.
not a copy, of that from which it. is taken.6
Abutment. The part of a bridge which
But may be used in the sense of " copy." '
Abstract of title. A concise statement touches the land. See Bridge.
Abuttal. The point at which tracts of
of the record evidence of one's title or inter-
est in realty. Frequently spoken of as an land meet ; the butting or bounding of lands.
" abstract." Abutting. Usually, although not neces-
In conveyancing, an abstract or summary sarily, imports
Properties abut "inupon contact"
a street; andwith.*
their owners are
(ibutting owners. See further Street.
1 Johnson's Adm. v. Johnson, 32 Ala. 640-42 (1858), AC. See Ad.
cases, "Walker, J. ACADEMY. See Abode; Cadet; Col-
a Converse v. Kellogg, 7 Barb. S97 (1850); 2 N. Y. 857.
a Hough V. City Fire Ins. Co., 29 Conn. 20 (1860), San- lege, 2; School, Public.
ford, J. ; Williams v. Buffalo German Ins. Co., 17 F. B.
65 (1883), cases. > Burrill's Law Diet. ; Warvelle, Abstr. Title, § 2.
* L. abs-tTahere, to draw away or off. 2 Banker ti. Caldwell, 3 Minn. 101 (1859); 7 W. Va. 413.
' United States v. Northway (President Second Nat. * L. ab, amiss; uti, to use.
Bank of Jefferson, Ohio), 120 U. S. 327, 334-36 (1887), < Dawkins v. State, 58 Ala. 379, 378 (1877), Brickell,
Matthews, J. C. J. See generally Commonwealth v. Roosnell, 143
' [Dickinsou v. Railroad Co., 7 TV. Va. 413 (1874). Mass. 32 (1887).
' Wilhite V. Barr, 67 Mo. 286 (1878). • Cohen v. Cleveland, 43 Ohio St. 197 (1885).
 ACCELERATE 10
ACCEPTANCE

ACCELERATE. To shorten the period upon non-negotiable paper, would not import a .con-
after which an interest or estate is to vest in sideration.!
possession or enjoyment. The bill itself, after acceptance, is also
ACCEPTANCE.! A receiving — with called " an acceptance."
approval, or conformably to the purpose of a Acceptor. He who accepts a bill of ex-
tejider or offer ; receiving with intention to change,— usually the drawee.
retain. An acceptance is commonly naade by writing "ac-
cepted "upon the face of the bill and signing there-
Whence acceptor, non-acceptance.
under the acceptor's name; but there is no particular
A person is said to accept the service of a notice, an place, and no uniform formula, observed.
offer, a bid, the terms of a contract, a guaranty, a Acceptances are: express, and implied;
charter, rent, goods delivered, a bill of exchange.
1. At common law, a, sale of goods, wares, or mer-
verbal, and written; prior to drawing the
chandise was complete upon acceptance of the offer bill ; before or after maturity ; for accommo-
to sell. The Statute of Frauds requires that before an dation; after protest; absolute, qualified,
action can be maintained there must have been both conditional; by all the drawees, by one or
a delivery and an acceptance «)f the article by the
more of them, by a person not a drawee for
purchaser or by his duly authorized agent. In deter- the honor of the drawer or of an indorser.
mining, in a particular case, whether there was a
binding acceptance, the courts consider the intention They are "complete," when in exact con-
of the parties and the nature of the property.^ formity with the tenor of the bill; " quali-
It is a question for the jury whether, under all the
fied," when the engagement is to pay at a
circumstances, the acts which the buyer does or for-
bears to do amount to a receipt and acceptance. But different time, place, or manner, from the
where the facts are not in dispute it is for the court tenor; and " conditional," when the obliga-
to determine their legal effect; also when the facts tion to pay is to commence on the happening
are- not such as can in law warrant finding an accept- of some event or circumstance. ^
ance. To take the contract out of the operation of Every act giving credit to a bill amounts to an ac-
the statute, there must be " acts of such a character ceptance; and this, once fairly and fully made and
as to place the property unequivocally within the consummated, cannot be revoked. But the drawee
power and imder the exclusive dominion of the buyer has a reasonable time in which to obtain desired and
as absolute owner, discharged of all liens for the
pertinent information.'
price.", ^ See Frauds, Statute of; Offer, 1. Unless forbidden by statute, a promise to accept
3. Acceptance of a bill of exchange is an an existing bill is an acceptance whether the promise
is in writing or by parol.
assent or agreement to comply with the re-
The acceptor is to the drawer as the maker of a
quest or order contained in the bill, or, in
promissory note is to the payee, i. e., he is tlie prin-
other words, an assent or agreement to pay cipal debtor, and the drawer is his surety. His lia-
the bill according to the tenor of the accept- bility isgoverned by the terms of the acceptance.'
ance, when due.* Acceptors of a bill of exchange by, the act of ac-
An engagement to pay the bill according ceptance admit the genuineness of the signatures of
the drawees, and the competency of the drawers to
to the tenor of the acceptance ; a general ac- assume that responsibility. Such an act imports an en-
ceptance being an, engagement to pay accord- gagement, on the part ot;the acceptor, with the payee
ing to the tenor of the bill.' or other lawful holder of the bill, to pay the same if
" Accepted," on a bill of exchange, is an engage- duly presented, when it becomes due according to the
ment to pay the bill in money when due. Indorsed tenor of the acceptance. He engages to pay the
holder, whether payee or indorsee, the full amount of
1 L. accipcre, to receive. the bill at maturity, and if he does not, the holder has
2 See Bullock v. Tschergi, 1.3 F. E. 345 (1882); Mahan a right of action against him, and he may also have
«. United States, 16 WaU. 146 (1872); 1 Eped, St.Fr. one against the drawee. Drawers of bills of exchange,
§§ 258-303, oases; 28 Minn. 854; 2 Kent, 494; 3 Pars. however, are not liable to the holder, under such cir-
Contr. 39; 2 Bl. Corfi. 447. cumstances, until it appears that the bill was duly
s Hinchman v. Lincoln, 124 U. S. 38 (1888), cases, Mat- presented, and that the acceptor refused or neglected
thews, J., quoting Marsh v. Eouse, 44 N. Y. 617 (1871), to pay according to the tenor of the instrument; their
cases. See also Shindler v. Houston, 1 id. 265 (1848): liability is contingent and subject to those conditions
49 Am. Dec. 325-40(1883), cases; Eemick v. Sandford,
120 Mass. 316 (1876), oases; Baldey v. Parker, 3 Bam. 1 Cowan V. Halleck, 9 Col. 578 (188G), eases.
& C. *40 (1823); Benj. Sales, § 187; Browne, Stat. Fr. 2 See 1 Pars. Contr. 267; 2 Pars. N. & B. 281; 1 Daniel,
Neg. Inst. I 496; 64 Ala. 38-33; 109 Mass. 414.
§317 a.
4 Gallagher u. Nichols, 60 N. T. 445 (1875), Miller, J.; ' 3 Kent, 82-88.
12 Barb. 669; 1 Pars. N. & B. 281. « Scudder v. Union Nat. Bank, 91 U. S. 413-14 (1875),
' Cox 11. Nat. Bank of New York, 100 U. S. 712 (1879), cases; Cox v. Nat. Bank of New York, 100 id. 713,
Clifford, J. 712-18 (1879), cases.
 ACCESS 11 ACCESSARY

piaecedent.! SeeCEECEjExcHAHOS, 2, BUI of ; FiAcs, 1, receives, relieves, comforts, or assists the

Of payment; Protest, 2.
ACCESS.2 Going to or with: approach, felon. 1
In treason and misdemeanors, all participants are
intercourse, or opportunity therefor. Op- principals. The nearest relatives dare not aid or re-
posed, non-access. ceive one another. Mere presence makes an accessary
before the fact a principal in the second degree. An
In a special sense, refers to sexual inter- accessary before the fact is liable for all that ensues
course between a husband and wife, and im- from the unlawful act. The manner of executing his
ports its occurrence or opportunity of com- command is simply a collateral circumstance. Any
municating for that purpose. assistance given a felon to hinder his being appre-
The presumption that children bom in lawful wed- hended, tried, or pimished, makes the a«sister an ac-
lock are legitimate, may be rebutted by evidence show- cessary after the fact. A person acquitted as a
ing that there could have been no intercourse. Where principal may be indicted as an accessary after the
there were opportunities for intercourse, evidence to fact; and one may be indicted as an accessary both
establish impotency is generally not admitted. Non- before and after the fact.*
access is not presumed from the mere fact that the Whatever will make a party an accessary before
parties lived apart in the same country.^ the fact in felony will make him a principal in misde-
A parent will not be permitted to prove non-access meanor, ifproperly charged as such. . The acts,
for the purpose of bastardizing issue bom in wedlock. conduct, and declarations of each confederate, made
The admission of such testimony would be unseemly during the pendency of the enterprise, are evidence, as
and scandalous; it would reveal immoral conduct in part of the res gestae, against all concerned; but a con-
the parents, and the child, who is in no fault, would fession made subsequently to the crime affects only
be the chief sufferer. Modem statutes allowing par- him who makes it. . . . Where the accessary is
ties to testify in their own behalf have not changed tried with the principal, the confession of the latter is
this rule of law.* admissible to prove his own guilt, and where he con-
ACCESSABY.s He who is not the chief fesses by pleading guilty and retiring, the record of
such conviction is prima facie evidence of his guilt at
actor in an offense, nor present at its pei"- the trial of other defendants. Evidence of the confes-
formance, but is in some way concerned sion of an accessary, to prove the guilt of the prin-
therein, either before or after the fact com- cipal, cannot be admitted under' an indictment against
mitted.* the accessary, unless the guilt or conviction of the
If a person does no more than procure, advise or principal is alleged in the indictment. The rule at
assist, he is only an accessary; but if he is present, common law was that the accessary could not be con-
consenting, aiding, procuring, advising, or assisting, he victed until the guilt of the principal was established;
so that the principal was first to be convicted or both
is a "principal." ' indicted and tried together. . . . When the acces-
Accessary before the fact. One who,
sary is indicted before the principal ha.s been con-
being absent at the time of the crime com- victed, the indictment, whether separate or joint, must
mitted, doth yet procure, counsel, or com- allege the guilt of the principal, as the offense of the
mand another to commit the crime.' accessary depends upon the principal's guilt and is
never to be regarded as complete unless the chief
Accessary at the fact. An aider and
offense was actually committed. When principal
abetter was formerly defined to be an "ac- and accessary are indicted together, the regular
cessary at the fact." He is now spoken of course is to introduce all substantive evidence against
as a principal in the first or second degree.^ all the parties before they are required to state their
Accessary after the fact. One who, defense. Then the jury are instructed to consider the
case of the principal defendant in the first place, and,
knowing a felony to have been committed, if they find him not guilty, that it is their duty also to
acquit the accessary; but if they find him guilty, they
> Hoffman u Bank of Milwaukee, 13 Wall. 186, 193
are to proceed to examine the charge against the ac-
(1870), aifford, J.
^Ac-cess', or ac'-cess, — Webster. cessary, and declare whether it is sustained.'
Every accessary after the fact to murder, robbery,
' 2 Greenl. Ev. §§ 150-51 ; 1 id. § 88; 1 Whart. Ev. § 608;
or piracy, shall be imprisoned not more than three
2 id. § 1298; 1 Bl. Com. 457.
years, and fined not more than five hundred dollars.
* Tioga County v. South Creek Township, 75 Pa. 430- Every accessary after the fact to any robbery of the
37 (1874); Boykin v. Boykm, 70 N. C. 263-64 (1874),
cases; Melvin v. Melvin, 58 N. H. 570 (1879), cases; King carrier, agent, or other person intrusted with the mail,
of such mail or of any part thereof, shall be fined not
V. Inhab. Sourton, 31 E. C. L. 315-16 (1830), cases.
•* Ac-ces'-sary, — Webster. Xi. accessorius, Ci. \ . Also
spelled -ory, but -ary is preferred. See Aookssoby. MBl. Com, 37; 14 R. I. 283.
« 4 Bl. Com. 35; 3 Cliff. 227. = 4 Bl. Com. 36-40. See also State v. Davis, 14 R. I.
'United States u. Wilson, Baldw. 103 (1830). See 283 (1883).
also Speer v. Hiles, 67 Wis. 363 (1886), oases. 'United States v. Hartwell, 3 Cliff. 826-31 (1869),
» 4 Bl. Com. 37: 1 Hale, P. C. 615. cases, Clifford, J. See also 2 Steph. Hist. Cr. L. Eng.
• United States v. Hartwell, 3 Cliff. 226 (1869). 239.
 ACCESSIO 13
ACCIDENT

more than two thousand dollars, and be imprisoned at

ACCESSORIUM. L. An accessory^
hard labor not more than two years; ' and for stealing thing ; the incident.
any letter, or other mail' matter, or inclosure therein,
not more than five years imprisonment and one thou- Accessorium seqiiittir principale, or
sand dollars fine.^ Accessaries to murder, robbery or prineipalem, or naturam sui princi-
other piracy upon the seas, shall suffer death.' palis. The accessory follows the principal
" An accessary is he who stands by, and aids, abets, thing, or the principal, or the nature of the
or assists, or who, not being present, aiding, abetting,
or assisting, hath advised, encouraged, aided or principal.
abetted the perpetration of the crime. He who thus The incident follows the principal. The more
aids, abets, assists, advises or encourages shall be con- worthy draws to itself the less worthy.' See Acces-
sion.
sidered as principal and punished accordingly. Every
such accessary, when a crime is committed within or ACCESSORHrS. L. An accessary; an
without this State by his aid or procurement in this assistant.
State, may be indicted and convicted at the same time Aecessorius sequitur naturam sui
as the principal, or before, or after his conviction, and
whether the principal is convicted or amenable to principalis. An assistant follows the char-
acter of his chief.
justice, or not, and punished as principal." *
An accessary follows the nature of his principal —
See Abet; accomplice; Aid, 1; Anarchists' Case; in treason and misdemeanors: he cannot be guilty of
Decoy; Husband; Presence; Principal, 5.
ACCESSIO, L. Increase ; accession, q. v. a higher degree of crime.^ See further Accessary.
Accessio cedit priucipali. Increase ACCESSORY.!! 1. Accompanying ; inci-
goes with the principal. dental; subservient; appurtenant: as, an ac-
Any addition belongs to the owner of the principal
cessory contract or obligation, gg. v.
object. See Accessorium. 2. "Whatever is connected as an incident or
subordinate thing to another as the principal.
ACCESSION". Addition, increase; aug-
mentation. See Accessio. See Accession.
3. An accessary, q. v.
Specifically, the right to all that which
Accessorial. Going with some other as
one's own property produces, whether that
property be movable or immovable, and the the chief or more important thing : as, an of-
right to that which is united to it, either i>at- fense of an accessorial nature,* an accessorial
urally or artificially. ^ service. 5
The fruits of the earth, produced naturally or by ACCrDENT. See Accideeb.
human industry, the increase of animals, new species An event or occurrence which happens un-
of articles made by one person out of the materials
of another, and increments to land, are embraced expectedly, from the uncontrollable opera-
tions of nature alone, and without human
within the definition.'
The doctrine of property arising from accession is agency ; or an event resulting undesignedly
groimded on the right of occupancy. By the Ropian and unexpectedly from human agency alone,
law, if any corporeal substance received an accession
or from the joint operation of both.^
by natural or artificial means, the original owner of An event from an unknown cause, or an
the thing, by virtue of his right of possession, was en-
titled to the thing in its improved state; but if the unusual and unexpected event from a known
thing itself became changed into a different species, cause; chance, casualty.'
as by making wine out of another's grapes, it be- In equity, includes not only inevitable cas-
longed to the new operator, who was only to make ualties and such as are caused by the act of
satisfaction to the former proprietor for the materials
so converted. These doctrines have since been con- God, but also those that arise from unfore-
seen occurrences, misfortunes, losses, and
firmed by the courts."
The rule is that the accession goes with the princi- acts or omissions of other persons, without
pal thing.' the fault, negligence, or misconduct of the
See Accessoriitm: Accessory; Accretion; Inci-
dent; Partus. Compare Confusion, Of goods.
party. 8 See Mistake ; Relief, 3.
1 See 8 Bl. Com. 11, 36, 176; Broom, Max. 497.
1R.S.§§ 6533, 5473. ' See 3 Inst. 139; 4 Bl. Com. 36; Broom, Max. 497.
aR. S. §§ 5535, 5467, 5469, 5471. 3 Ac-ces'-sory, — "Webster.
' s R. s. §§ 5323-34. 4 18 Wheat. 476; 1 Greenl. Ev. § 294.
■ 6 2 F. E. 478.
*I11. Kev. St., Cothran's ed., p,506, cases. On casual
connection, see 20 Cent. Law J. 3-6 (1885), cases. « Morris v. Piatt, 38 Conn. 85 (1864;, Butler, J.
» [3 Kent, 360. ' Crutohfield v. Richmond, &c. R. Co., 76 N. C. 322
« 2 Bl. Com. 405. (1877), Reade, J. \
'3 Kent, 360. 8 Bostwlck V. stiles, 35 Conn. 198 (1868), Park, J.;
 ACCIDENT 13
ACCIDENT

Avoidable, unavoidable, and inevi- side, that "inevitable accident" as a defense can be
table accident. Accidents are : (1) Such as admitted — a collision which occurs where both par-
ties have endeavored, by every means in their power,
are " inevitable" or absolutely unavoidable, with due care and caution, and a proper display of
because effected or influenced by the uncon- nautical sldll, to prevent the occinrence of the acci-
trollable operations of nature. (3) Such as
result from human agency alone, but are dent."
" Inevitable accident," within the mean-
" unavoidable " under the circumstances. (3) ing of the maritime law, is where a vessel is
Such as are " avoidable," because, in a given pursuing a lawful avocation in a lawful
case, the act was not called for by any duty manner, using proper precaution against dan-
or necessity, and the injury resulted from ger, and an accident occurs. ^
the -want of that extraordinary care which When a casualty occurs, which might have been
the law reasonably requires of one doing such prevented by the use of known and proper means, it
a lawful act, or because the accident was the is not " 2.inevitable." » See further Act, Of God; CoL-
USION,
result of actual negligence or folly, and
Accidents in instirance law. In a pol-
might, with reasonable care adapted to the
emergency, have been avoided. icy insuring a person " against death or in-
jury by accident" it is difficult to define
" Unavoidable accident " does not mean an
' ' accident " so as to draw with perfect accu-
accident which it is physically impossible in
racy aline between injury or death from ac-
the nature of the things to prevent ; but an cident, and from natural causes. But in the
accident not occasioned in any degi'ee, re- term, thus used, some violence, casualty, or
motely or directly, by the want of such care
vis major, is necessarily involved.^
or skill as the law holds every man bound to Disease produced by the action of a known cause
exercise. 1 cannot be considered aa " accidental " — unless, for
No one is responsible for that which is merely the example, exposure is brought about by circumstances
act of God or *' inevitable accident." But when which may give it the character of accident. In one
human agency is combined with it and neglect occurs sense, disease or death through the direct effect of a
in the employment of such agency, a. Uability for known natiual cause may be said to be accidental,
<lamages results from the neglect.' inasmuch as it is uncertain beforehand whether the
effect will ensue in any particular case. Yet diseases
In maritime law, " inevitable accident " arising from malaria or infection have always been
is a relative term, to be construed not abso- considered, not as accidental, but as proceeding from
lutely, but reasonably with regard to the cir- natural causes. Simstroke arises from a, natural
cumstances of each case. In that light it cause, although it implies exposure to the sun.*
signifies an occuiTence which the party A large proportion of the events called accidents
charged with the collision could not possibly happen through some carelessness of the party in-
jured. Thus, men are injured by the careless use of
prevent by the exercise of ordinary care,
flre-arms, of explosives, of machinery, etc., where a
caution, and maritime skill; as, a collision little greater care on their part would have prevented
resulting from the darkness of the night.' it. Yet such injuries, having been unexpected, and
"Unavoidable accidents or dangers," in a bill of not caused intentionally, are always called accidents,
lading, mean such accidents as are unavoidable by and properly so. . . . An accident may happen
the carrier. To avail himself of such as an exception from an unknown, or be an unusual result of a known
to his liability he must prove their existence, and cause, and therefore unexpected; as where a person
clearly show that there was no default on his part.* is injured in passing from the platform of a railway
Where a collision occurs exclusively from natural depot to a car in motion.*
causes, the loss must rest where it falls, on the prin- Death by accident means death from any
ciple that no one is responsible for such an accident. unexpected event which happens as by
. . . It is only where a disaster happens from nat-
ural causes, and without negligence or fault on either
1 Union Steamship Co. v. N. Y. & Va. Steamship Co.,
1 Story, Eq. S TO; Bisp. Eq. § 174; Pom. Eq. § 823; 17 24 How. 313 (1860), cases, Clifford, J.
F. R. 616. 2 The Grace Girdler, 7 Wall. 203 (1868), cases,
" [Dygert v. Bradley, 8 Wend. 473 (1832). Swayne, J. See also Stewart v. Ship Austria, 7 Saw.
2C!hidester v. Consolidated Ditch Co., 59 Cal. 202 437(1882); s. o. 14 F. E. 300.
(1881), cases. 8 Ladd V. Foster, 31 F. R. 827 (1887).
• The Morning Light, 2 Wall. 660-61 (1864), cases, aif- 'Sinclair v. Maritime Passengers Assur. Co., 107
ford, J. E. C. L. 484 (1861), Cockbum, C. J.
* Hays V. Kennedy, 41 Pa. 378-86 (1861), cases, Lowrie, » Schneider v. Provident Life Ins. Co., 24 Wis. 2!>-31
C.J.
(1869), Paine, J.
 ACCIDENT
ACCOMPLICE
14

chance, or which does not take place accord- ACCIDEEE. L. To fall upon : to come
ing to the usual course of things.i to, arrive at ; to come to hand ; to fall out,
When the object of a company is to insure against come to pass, happen.
bodily injuries produced by external, violent, and ac-
Quando aeciderint. When they (assets)
cidental means, all combined, there can be no recov-
come to hand.
ery where an assured innocently drank poison.^
Where an executor or an administrator pleads
"Within a policy against injury or death from "ex- plene administravit, the plaintiff may pray judgment
ternal, violent, and accidental means," excepting
injury or death from " poison," a recovery was had of assets quatido aeciderint^ or traverse the plea.*
for death from poison absorbed into the system by
ACCOMMODATION". Convenience, fa-
handling hides. ^ See Poison. vor, benefit. An engagement made as a favor
' A policy against " bodily injuries, effected through to another, and without consideration ; some-
external, accidental, and violent means," occasioning
death or complete disability to do business, providihg thing done to oblige another ; as, a loan of
that " this insurance shall not extend to death or dis- money or credit.
ability caused by bodily infirmities or disease, by sui- Accommodation paper. A loan of the
cide, or self-inflicted injuries," — covers a death by maker's credit, without restriction as to the
hanging one's self while insane.* See Suicidb.
The burden of proof rests upon the insurer to show manner of its use, by means of a bill of ex-
that the assiu'ed did not use the required degree of
change or a promissory note, and by making,
* diligence for his personal safety.' . . . The use of accepting, or indorsing the same, as the case
the word " accidental " will not prevent recovery for may be.
injuries to which the negligence of the assured con- A payee may use such instrument, as the name im-
tributed.^ ports, for his own benefit, in any manner he may
Within the meaning of the rules of a bene- judge best calculated to advance his interests. Thus,
he may pay an existiug debt with it, sell or discount
ficial society, an "accident" has its usual it, or pledge it as collateral security.
signification of an event that takes place A holder for value may recover, though he knew
without one's foresight or expectation.^ that no consideration passed between the parties to
In this sense it includes an injury received by one the paper; if otherwise, the purpose of the paper
in a common affray, when no fault on his part is would be defeated. But the want of a consideration is
shown.* a good defense as against the party accommodated.*
A " railway accident " is any accident hav- Being out of the regular course of business, a part-
ing its essence in the peculiarities or proper- ner, unauthorized, may not thus loan the name of his
firm. 3 See Accommodatum.
ties of railway traveling;' an accident at-
ACCOMMODATUM. L. A loan for
tributable tothe fact that the injured party
is a passenger on the railway, and arising out use without pay, the thing to be restored in
of an act immediately connected with his
specie.
A species of bailment, g. v. The same as commo-
being such a passenger. 8
See Oashalty; Cause, 1, Proximate; Convetanoe, 1 ;
Injury; Negligence; Kbs, Perit, etc. ACCOMPIiICE.5 One who is in some
datum*
way concerned in the commission of a crime,
whether as principal or as an accessary. . . .
• North American Life, &c. Ins. Co. v. Burroughs, 69 One of many equally concerned in a felony,
Pa. 51 (1871), Williams, J. Approved, Bacon v. Acci-
dent Association, 44 Hun, 607, infra. the term being applied to those who are ad-
' Pollock V. United States Mut. Accident Association, mitted to give evidence against their fellow
a02 Pa. 334(1683). criminals for the furtherance of justice.^
s Bacon v. United States Mut. Accident Association,
44 Hun, 699 (1887), cases. 1 See 1 Pet. C. C. 443, n; 67 Ga. 49; 19 S. 0. 851.
■> Accident Ins. Co. u. Crandal, 180 U. S. 587, 531-38 SAppleton v. Donaldson, 3 Pa. 386 (1846); Lord v.
(1887), cases. Gray, J. Ocean Bank, 20 id. 386 (1853), Black, C. J.; Moore v.
6 Freeman v. Travelers' Ins. Co., 144 Mass. 575 (1887), Baird, 30 id. 139 (1858); Dunn v. Weston, 71 Me. 283
cases; s. c, 36 Alb. Law J. 1S7. As to "total disabil- (1880), Appleton, C. J.; 109 U. S. 667; 65 Pa. 75; 3 Kent,
ity," see Saveland v. Fidelity & Casualty Ins. Co., 67 48, 86; Byles, Bills, 131-32, note by Sharswood.
Wis. 176 (1886). » 1 Daniel, Neg. Inst. 272; 1 Pars. N. & B. 259; 1 Bates,
' Supreme Council of Chosen Friends v. Garrigus, Partn. § 349, cases.
104 Ind. 140 (1884), ZoUars, J. 4 8 Kent, 573.
' Theobald v. Eailway Passenger Assur. Co., 26 E. L. ^F. accomplic, coiiiplice^ a confederate: L. com-
plicem, folded with, interwoven; involved.
& Eq. 437 (1854), Alderson, B'. « Cross V. People, 47 111. 158 (1868), Breese, C. J. And
^Ibid. 440, Pollock, 0. B.
That accidents are not crimes, see 81 Cent. Law J. see People v. Smith, 88 Hun, 627 (1883), Daniels, J.;
264-70 (1885), cases. Cooku State, 14 Tex. Ap. 101 (1883), White, P. J. ; ib. 591.
 ACCOMPLICE 15
ACCORD

One who in any manner participates in tlie successful. Where attempt is made to put him {o trial
in spite of his equitable right to a pardon, the prisoner
criminality of an act, either as a principal or may move that the trial be postponed, supporting his
an accessary. 1 motion by his own afiidavit, when the court may in-
One who knowingly, voluntarily, and with sist to be informed of all the circumstances; or the
common intent with the principal offender court may order that he be acquitted at the trial. ^
unites in the commission of a crime. ^ See Accessary; Approve, 5; Paedon; Particeps.

■Wliether to allow an accomplice, who has turned ACCORD.2 Agi-eement; satisfaction.

state's evidence, a separate trial, or to enter a nolle A satisfaction agreed upon between the
prosequi and admit him as a witness, is discretionary
with the court. He is serviceable as a witness until party injuring and the party injured.'
sentenced. To bring the chief offender to justice jus-
An agi-eement, in the case of a contract,
where the creditor agrees to accept some
tifies the practice. Accomplices never eon'oborate
each other; but an informer is not subject to this other thing in lieu of that which is contracted
rule; = and the rule is not applicable to civil issues.* or promised to be done.*
The corroboration ought to be as to some fact the
Used in the plea " accord and satisfaction."
truth or falsehood of which goes to prove or disprove When performed, constitutes a bar to all actions.
the charge.' But the testimony of a feigned accom- The money or property must be offered in satisfac-
plice does not need corroboration. Whether or not tion of the claim, and upon the condition that i£ ac-
one is a feigned accomplice is for the jury.* cepted it is a satisfaction, and the claimant must be
Accomplices, not previously convicted of an infa- made to understand that he takes it subject to such
mous crime, when separately tried, are competent
vritnesses for or against each other; and the imiversal condition.'
The bar rests on the agreement and not on the mere
usage is that such a party, if called and examined by reception of property ; for whatever amoimt may have
the public prosecutor on the trial of his associates in been received, the right of action will not be extin-
guilt, will not be prosecuted for the same offense, pro- guished, unless it was agreed that the property should
vided itappears that he acted in good faith and that be received in satisfaction of the injury. An accord
he testified fully and fairly. But it is equally clear by parol, or by writing not under seal, cannot be set
that he cannot plead such fact in bar of an indict- up as a bar to an action of debt founded on a record,
ment against him, nor avail himself of it upon his or to a judgment in the nature of a record, nor to a
trial, for it is merely an equitable title to the mercy of debt by specialty, where the debt arises upon the
the executive, subject to the conditions stated, and deed ; but it may be interposed as a bar to a claim for
can only come before the court by way of application
damages founded upon the breach of a specialty.'
to put off the trial in order to give the prisoner time to Furthermore, an accord must be legal, reasonable,
apply to the executive for that purpose. Some of the advantageous to the creditor, certain, complete, and
elements of the usage had their origin in the ancient be made by the debtor. It may proceed from a part-
practice of approvement. . . It is regarded as ner or a joint wrong-doer for him and his associates,
the province of the public prosecutor to determine and may be accepted by one co-plaintiff. When a
whether or not the accomplice shall be examined for definite sum of money is agreed upon, a, less sum is
the state. In order to acquu-e the information neces- not considered a satisfaction, unless there is an addi-
sary to determine the question, the prosecutor will
grant the accomplice an interview, with the under- The tional
technical
benefit.'' rule, that an unsealed agreement to
standing that any communication he may make will accept a smaller sum than the entire debt does not
be strictly confidential. Interviews are for mutual ex- bind the creditor, has been falling into disfavor. It is
planation, and so do not absolutely commit either now held that where a new element enters into the
party; but if the accomplice is subsequently called
and examined, he is entitled to a recommendation for
1 Whiskey Cases (United States v. Ford), 99 U. S. 595,
executive clemency. The accomplice may be par- 699-606 (1878), cases, Clifford, J. See also Bex v. Eudd,
doned prior to conviction, or the public prosecutor
may twI. pros, the indictment, or advise the prisoner 1 Cowp. 336 (1775), Mansfield, C. J.; Commonwealth
to plead guilty with the right to retract and plead to V. Knapp, 10 Pick. 492-94 (1830); Commonwealth v.
Holmes, 127 Mass. 429-45 (1879), cases, Gray, C. J.; State
the merits if his application for pardon shall be un-
V. Graham, 41 N. J. L. 16-22 (lb79), cases; Oliver v. Com-
monwealth, 7 Va. 590 (1883); 66 Ga..346; 133 Mass. 402.
1 Polk V. State, 36 Ark. 128 (1880), Eakin, J. See too 2 F, accorder, to agi'ee.
Euss. Crimes, 26; 4 Bl. Com. 34, 331. ' 3 Bl. Com. 15-16.
2 People V. Bolanger, 71 Cal. 20 (1886): Whart. Cr. < Way V. EusseU, 33 F. E. 7 (1887): 1 Swift's Dig. 499
Ev. § 440. 24 Conn. 613; 75 N. Y. 574.
= 1 Greenl. Ev. § 379. 'Preston i;. Grant, 34 Vt. 203 (1861); Bull v. Bull, 43
*Kalckhoffl v. Zoehrlaut, 43 Wis. 379 (1877). See 71 Conn. 468 (1876).
N. T. 137. ' Mitchell V. Hawley, 4 Denio, 417-18 (1847).
'State V. Miller, 97 N. C. 488 (1887); Commonwealth ' See Cumber v. Wane, 1 Sm. L. C. 604 [•445], cases;
V. Bosworth, 22 Pick. 399 (1839), cases; State v. Maney, 20 Wall. 309; 40 Ark. 184; 6 Col. 162; 44 Conn. 541; 87
54 Conn. 190 (1886); People v. Flath, 100 N. Y. 593 (1886). Ind. 256; 88 id. 45; 29 Minn. 264r^5; 38 Pa. 147; 1 Wash.
L 'People V. Bolanger, 71 Cal. 19-20 (1886); 30 id. 316. T. 328; 2 Pars. Contr. 193; 1 Greenl. Ev. § 28.
 ACCORDING 16 ACCOUNT

a^eement of oompromise, the entire debt is satisfied; Some matter of debt and credit, or of a
as, for example, a promise to pay at an earlier day, at demand in the nature of debt and credit,
a. different place, in a different thing, or a promise by
a new party. 1 between parties, arising out of contract, or of
ACCORDING. Compare By, S ; Secun- a fiduciary relation, or some duty imposed by
dum.
Where a mortgage is conditioned for the payment Current or running account. An ac-
law.i
of money " according to " the tenor of a note, to se- count to which items are being added at in-
cure which the mortgage is given, the terms of the tervals an
; account open to further charges.
note are viewed as imported into the mortgage." See
VBRBnM, Verba illata, etc. First account ; partial account ; final
According to la^w. After the ending of a hfe account. Designate the number or com-
estate, land was to go to the male heir nearest the tes- pleteness ofaccounts presented to a court for
tator "according to law." Held, that the estate was confirmation.
to descend as the law would have given it to the heir.*
Since, after a verdict and judgment, a reasonable Mutual accounts. Those having origi-
intendment will be made, on error, in favor of a com- nal charges by persons against each other;
plaint which shows a substantial cause of action, an accounts kept between merchants.
averment that an affidavit was made " according to Open account. An account with one or
law " will be held to mean that it was made in the more items unsettled ; also, an account with
time required by law.* dealings still continuing.
In 1809 a testator devised land to his son for life, and
then to his children "according to law." The testa-
Account rendered. An account ex-
tor died in 1812, and the son in 1860 leaving children. hibiting the creditor's demand delivered to the
Held, that the children were to take equally as the debtor — as a basis for settlement.
law stood in 1860, when the distribution was to be Account stated. An account rendered
made."
Where, in an appeal from the judgment of a justice by the creditor and assented to by the debtor.
of the peace, the docket entry showed that bail had An account to be " continuous " must be without
been given " according to the act of assembly," the break or interruption. " Open " means not closed;
recognizance was held to be sufficient.^ " current," running, passing, a connected series. A
A bond conditioned for the faithful discharge of the " continuous, open, cun-ent account " is an account
which is not interrupted or broken, not closed by set-
duties of an offtce "according to law," embraces
duties required by laws in force during the term of .tlement or otherivise; a running, connected series of
the officer, whether enacted before or after the exe- transactions. 2
cution of the bond.^ Death " closes " accounts in one sense, that is, there
can be no further additions on either side, but they
An administrator is to administer "according to
law," that is, to fulfil his functions, to perform all his still remain " open " for adjustment and set-off, which
duties.^ is not the case with an account " stated; " for that
See Duly; Lawful; Valid; Void. supposes a rendering of the account by the party who
is the creditor, with a balance stnick, and assent to
ACCOiriirT.9 1. The primary idea is, some
matter of debt and credit, or demand in the that balance, expressed or implied.*
In the statute of limitations, the exception in favor
nature of debt and credit, between parties. of "merchants' accounts" applies to actions of as-
It implies that one is responsible to another sumpsit as well as of account. It extends to all
for moneys or other things, either on the accounts " current " which concern the trade of mer-
chandise between merchant and merchant. An ac-
score of contract or of some fiduciary rela- coimt " closed " by the cessation of dealings is not an
tion, of a public or private nature, created by
law or otherwise. 1" account "stated."*
An " account concerning the trade of merchandise
1 Seymour v. Goodrich, 80 Va. 804-5 (1885), cases; between merchant and merchant" is not barred by
the statute of limitations, tho<igh none of the items
Bish. Contr. § 50, cases. On paying a part for the
are within six years after the action was brought.
whole debt, see 24 Cent. Law J. 175 (1887).
» Scheibe v. Kennedy, 64 Wis.- 569 (1885). Approved, Stringham v. Supervisors, 24 Wis. 598 (1869) ;
s Mclntyre v. Ramsey, 23 Pa. 319 (1854). Mc Williams v. Allan, 45 Mo. 574 (1870); MoCamant v.
•• McElhaney v. GUleland; 30 Ala. 183, 188 (1857). Batsell, 59 Tex. 867 (1883).
' Van Tilburgh v. Hollingshead, 14 N. J. E. 38 (1861). 1 Nelson v. Posey County, 105 Ind. 288 (1883), Mitch-
= Harvey v. Beach, 38 Pa. 500 (1861). ell, J. ; Watson v. Penn, 108 id. 26 (1886).
' Dawson v. State, .38 Ohio St. 3 (1882). See also 18 2 Tucker v. Quimby, 37 Iowa, 19 (1873), Miller, J.
N. Y. 115; 32 Minn. 162. ' Bass V. Bass, 8 Pick. 193 (1839), Parker, C. J. ; Volk-
8 Balch V. Hooper, 32 Minn. 162 (1884). ening v. DeGraaf, 81 N. Y. 270-71 (1880); McCamant v.
^ F. aconter, acompter: L. ad-con-putare, to reckon Batsell, 59 Tex. 868-69 (1883).
up together. See Computabb. * Mandeville v. Wilson, 5 Cranoh, 18 (1809), Marshall,
1° Whitwell V. Willard, 1 Mete. 217 (1840), Shaw, C. J. C.J.
 ACCOUNT 17 ACCOUNT

Whether an account concerns " the trade of merchan- by it, but the matters constituting the items in ques-
dise "is a fact for the jury. Such accounts include tion in the statement of it.'
acobunts for merchandise bought and sold, and de- An "account rendered" and not objected to within
mands for money growing out of the trade of mer- a reasonable time is to be regarded as admitted, by
chandise. ^ the party charged, to be prima facie correct. If cer-
Accounts are " mutual " where each party malies tain items are objected to, within reasonable time, and
charges against the other in his books, for property others not, the latter are to be regarded as covered by
sold, services rendered, money advanced, etc., as, for such an admission. When the facts are clear, what is
rent due.' a reasonable time is a matter of law; where the proofs
The term " mutual accounts " is used in statutes of are conflicting, it is a mixed one of law and fact. Be-
limitations, declaring that, when suit is founded upon tween merchants at home, an account presented, and
any such account, the time for suing may be reolioned remaining unobjected to after the lapse of several
from the last item proved. To constitute such account posts, is, ordinarily, by acquiescence, a stated account.
there must have been reciprocal demands between the The principle is that the silence of a party to whom an
parties. An account where there are no credits except
ac'count is sent, warrants the inference of an admis-
payments is not such a mutual account.* sion of its correctness. This inference is more or less
In Massachusetts, to a " mutual and open account strong according to circumstances. It may be repelled
current " there must be a mutual agreement, express by showing facts which are inconsistent with it, as
or implied, that the items of the account upon one that the party was absent from home, suffering from
side and the other are to be set against each other. illness, or expected shortly to see the other party, and
There must be one account upon which the items upon preferred and intended to make his objections in per-
either side belong, and upon which they operate to
extinguish each other pro tanto, so that the balance Unless objected to within a reasonable time an ac-
upon either side is the debt between the parties.^ count rendered becomes an accoimt stated, and cannot
A "mutual account" is one based on a course of be impeached except for fraud or mistake. What
dealing wherein each party has given credit to the son.'^
constitutes reasonable time is a question of law.'
other, on the faith of indebtedness to him. If the A " nnuiing account " refers to cases of reciprocity
items on one side are mere payments on the indebted- and mutuality of dealings between parties, and not to
ness to the other, the account is not mutual. Whether cases where the items are all on one side.*
or not an account is a mutual account is a question of
That an accoimt is " settled " is only prima facie
fact. The doctrine that the statute of limitations does evidence of its correctness. It may be impeached by
not begin to rim against either party until the last just proof of unfairness, or mistake, in law or in fact; and
item is obtained on either side,- does not rest on the no- if it be confined to particular items it concludes noth-
tion that every credit in favor of one is an admission by
ing in relation to other items not stated.^
Mtti of indebtedness to the other, or a new promise to Merely rendering an account does not make it
pay, but upon a mutual understanding, either express " stated." If the other party receives the account,
or implied from the conduct of the parties, that they admits the correctness of the items, claims the bal-
will continue to credit each other until, at least, one ance, or offers to pay it, it becomes a stated account."
desires to terminate the course of confidential deal- In stating an account two things are necessary:
ing, and that the balance will then be ascertained, be- That there be a mutual examination of each other's
come then due, and be paid by the one finally indebted. items; and, that there be a mutual agreement aa to
Either party may terminate the mutual understanding the (iorrectness of the allowance and disallowance of
at any time by actual payment of the balance, by the respective claims, and of the balance, on final ad-
stating the account for that purpose, by demanding a justment. Yet it is not necessary to show such exam-
settlement privately, by suit, or by any other act ination and agreement: these may be implied from
which evinces his determination to deal no longer that circumstances. An omission to object to the account
way. Without proof of its termination, the law pre- rendered, raises merely an inference that the party is
sumes that such a mutual imderstanding, once proved satisfied with it. Any circumstances rebutting such
or admitted, runs through all the dealings of the par- inference, or calculated to raise a counter inference,
ties until the complete bar of the statute has attached. • are competent evidence as to the actual intention of
A "partial account " implies that nothing is settled
the parties.^
iBass V. Bass, 8 Pick. 192 (1889), Parker, C. J.; Volk- ' Leslie's Appeal, 63 Pa. 386 (1869); 39 id. 186.
enmg v. DeGraaf, 81 N. Y. 370-71 (1880); McCamant v. = Wiggms V. Burkham, 10 Wall. 131 (1869), Swayne, J.
BatseU, B9 Tex. 368-69 (1883). See also 1 Story, Eq. §§ 536, 520; 18 N. Y. 389.
5 Edmonstone v. Thomson, 15 Wend. 556 (1830), Sav- s Standard Oil Co. v. Van Etten, 107 U. S. a34 (1883),
age, C. J.; Boss V. Boss, 6 Hun, 81 (1875), cases; Pre- cases.
natt V. Eunyon, 12 Ind. 177 (1859). 'Leonard v. United States, 18 Ct. 01. 385 (1883).
s Fray lor v. Sonora Mining Co., 17 Cal. 596 (1861); ib. » Perkins v. Hart, 11 Wheat. 256 (1826), Washmgton, J. ;
344; 35 id. 123; 1 Ga. 338; 12 Ind. 174; 51 Me. 104; 8 Eager v. Thomson, 1 Black, 93 (1861).
Pars. Contr. 86. oToland v. Sprague, 12 Pet. 835 (1838), Barbour, J.;
* Eldridge v. Smith, 144 Mass. 36 (1887), Morton, 0. J. ; Zacarino v. Pallotti, 49.0onn. 38 (1881).
Pub. Sts. c. 197, § 8. 'Lookwoodu. Thome, 18 N. Y. 288, 398 (1858); 1 Story,
'6mm If. Gunn, 74 Ga. 555, 557-68 (1885), cases, Eq. §§ 526-28; 13 Bradw. 43; 58 N. H. 350; 59 Tex. 11a.
Clarke, J. t 369.
(3)
 ACCOUNT 18 ACCOUNT

Without impugning the rule that an apcount ren- Accountant. One who states in writing
dered which has become an account stated is opep to
the nature, condition, and value of trust
correction for fraud or mistalce, other principles come
property committed to his charge ; also, one
into operation, where a party to a stated account, who' skilled in stating accounts.
is under a duty, from the usages of business or other-
wise, to examine it within a reasonable time after Account-render. An action at law, in
having an opportunity to do so, and give timely notice
fiduciary matters, wherein a jury settles dis-
of his objections thereto, neglects to make such ex-
amination, orto have it made, in good faith, by an- puted items.
If no account has been made, the remedy is by writ
other; byreason of which negligence, the other party,
relying upon the account as having been acquiesced of account de computo; commanding the defendant to-
render a just account to the plaintiff, or show cause
in or approved, has failed to take steps for his pro-
tection which he could and would have taken had contra. In this there are two judgments for the plaint-
such notice been given. In other words, parties to a iff; that the defendant do account (guod computet) be-
fitated account may be estopped by their conduct fore an auditor; and, then, that he pay the plaintiff'
whatever he is found in arrears. . . . The most-
from questioning its conclusiveness. ^
ready and effectual way to settle matters of account
A complex and intricate account is an unfit subject
is by a bill in a court of equity, where a discovery may
for examination in court, and ought always to be re-
ferred to a commissioner for report, with a view to be had on the defendant's oath. "Wherefore, actions
of account, to compel a man to bring in and settle his-
the entry of a final decree by the court.3
It is the difficulty of properly adjusting accoimts account, are now seldom used; though, when an ac-
count isonce stated, nothing is more common than aa
which confers jiu:isdiction in equity upon them, with-
out much regard to their singleness or mutual] ty.^ action" upon the implied assumpsit to pay the bal-
ance. . . . For want of discovery at law, the courts-
A mistake in one item of an account may be cor-
rected without Opening up the whole account, unless of equity have acquired a concurrent jurisdiction with
other courts in all matters of account. As incident to-
the plaintiff can show error or fraud in the settlement
accounts, they take concurrent cognizance of the ad-
as to other items.*
ministration ofpersonal assets, and consequently of
Aeeountatale. Liable to demand for the
debts, legacies, the distribution of the residue, and the
exhibition of an account; under obligation conduct of executors and administrators. They also-
to disclose fully the circumstances of a trans- take concurrent jurisdiction of all dealings in partner-
action involving the investment or expendi- ship, and many other mercantile transactions; also-
ture of trust funds. of bailiffs, receivers, agents, etc.i
The action of account-render is founded upon con-
Accountable receipt. A written acknowl- tract, and the engagement between partners that each
edgment of the receipt, by the maker of it, shall account to every other for himself, and not for
of money or other personal property, coupled his copartner. It is a several hability ; no two are re-
with a promise or obligation to account for sponsible toanother jointly.' ,,
Where mutual accounts are intricate, a bill in equity
or pay to some person the whole or some part
is preferable.' Com.-pa,re Account, Action of.
thereof.5 Account-book ; book-account. See
Such receipt for money may be in legal effect,
Book, Account.
though not in form, a promissory note. * Action of account. Action of account-
render, q. V.
1 Leather Manufacturers' Bank v. Morgan, 117 TJ. S.
107 (1886), Harlan, J. A depositor in the bank sent his Proceeds upon the ground that the defendant right-'
check-book to be written- up and received it back with fully had money for some purpose; and he cannot be-
entries of credits and debits and his paid checks as in default until he has refused or neglected to account,
vouchers, but, from delay in examining the book and after being called upon. The judgments are : that the-
checks, failed to discover that his confidential clerk defendant account with the plaintiff; after account-
had raised certain checks to the amount of $10,000, in ing, that he pay him the balance found due.*
time to enable the bank to indemnify itself. See also Place to our account. An order [super-
Swayze v. Swayze, 37 N. J. E. 190 (1883), cases. fluous] on a bill or draft, that the drawee
See generally, as to account stated, S3 Cent. Law J. charge the maker with the amount, after
76 (1886), cases.
2 Dubourg V. United States, 7 Pet. 626 (1833); TUlar v. See further Audit; B-Axance; Charge; Demand;
Cook, 77 Va. 479-81 (1883); 13 Bradw. 120; 37 N. J. E.
payment.5
Eest, 2; Settle, 3; 'VonoHER; Administrator; Agent;
157, 564, 571; 94 N. T. 80-81; 17 F. E. 19, 81, oases.
s State V. Churchill, 48 Ark. 433-36 (1886), cases.
■• Carpenter v. Kent, 101 N. Y. 594 (1886); 2 Barb. 586. 1 3 Bl. Com. 164, 437. See 1 Story, Eq. §§ 442-59.
"i State u. Biebe, 27 Minn. 817 (1880), Gilflllan, C. J.; " Portsmouth v. Donaldson, 32 Pa. 204 (1858), Strong, J.
Gen. St. Minn. 1878, o. 96, § 1. And see Mason v. Aid- = Dubourg V. United States, 7 Pet. 625 (1833).
rich, 36 id. 284 (1886), cases; Commonwealth v. Talbot, *Travers v. Dyer, 16 Blatch. 181 (1879); 3 Bl. Com„
2 Allen, 161 (1861); Commonwealth v. Lawless, 101 Mass. 164; 8 Bates, Partn. § 8E
32 (1869). 'Byles, Bills, 91.
 19
ACCRESCERE ACCUMULATION

Assigkek; Exeohtor; Guaedian; PAKTsnnsmp; Pass; It is generally conceded that the riparian title at-
Receipt; Mistake; Payment; Sale; Trust, 1. taches to subsequent accretions to the land affected
2. The claim, demand, or right of action, by the gradual and imperceptible operations of nat-
ural causes. But whether it attaches to land reclaimed
for such balance as may be found to be due
by artificial means from the bed of the river, or to
upon an account current or closed; as, an sudden accretions produced by unusual floods, is a
account in bank, to assign an account. question each State decides tor itself. By the com-
3. Interest, benefit, behalf: as, in saying mon law, such additions to the land on tide or navi-
that an agent {q. v.) acts upon account of his gable waters belong to the crown. ^
An aerolite belongs to the owner of the fee of the
principal; a policy issued upon account of land upon which ib falls. Therefore, a pedestrian upon
whom it may concern {q. v.); a collection a highway who first discovers such stone cannot claim
(g. V.) made for the account of another per- title to it, the highway being a mere easement for
son.
travel.*
4. Rekson, ground, consideration. See ACCROACH.3 To attempt, or assume,
Condition. to exercise royal power.*
ACCEESCERE. L. To grow to, come ACCRUE.5 1. To be or become added to;
to fall due.
by increase, add to: to accrue, attach. See
Actio, Non accrevit ; Jus, Accrescendi. Accrued. Due and payable.
Accrxiiilg. Falling due; becoming but
ACCRETION. Amodeof acquu-ingtitle
to realty, where portions of the soil are added not yet due.
by gradual deposit, through the operation of As, accrued or accruing — dividend. Interest, pen-
sion, rent.
natural causes, to that already in possession Accruing costs are such costs as become due and
of the owner. 1 See Accrescere. are created after judgment; as, the costs of an exe-
The deposit itself is ordinarily called alluvion, q. v.
Compare Atui^ion. 2. Tocution.« attach, arise, come into existence,
At common law, imperceptible increase to commence, enure.
land on the bank of a river by alluvial forma- Benefits, and a right or cause of action, are said to
tions, occasioned by the washing up of the accrue at a certain time.^ See Limitation, 3.
sand or earth, or by dereliction, as where the Accruer, clause of. A clause in a gift
river shrinks back below the usual water- to tenants in common, that upon the death
mark. 2 of one tenant his share shall go to the sur-
When by addition, It should be so gradual that no vivor.
one can see how much is added each moment of time.'^ Extends only to the original, not to accrued shares^
Until new land is made or emerges, there can be no unless (as is ordinarily the case) it is otherwise ex-
*' accretion " to or increase of the land of which it pressly stated.
shall constitute a part. The term, importing an ad- ACCUMULATIOIf.s A gathering in
dition of what possesses the characteristics of land,
cannot, therefore, be construed to include oysters quantity; also, the sums or other things so
planted opposite to land.' gathered.
The iTile governing additions made to land bounded
by a river, lake, or sea, has been much discussed and Accumulative. Heaping up ; additional ; '
cumulative, q. v.
variously settled by usage and positive law. Almost At common law, the utmost length of time allowed
all jurists and legislators, however, have agreed that for the contingency of an executory devise to happen
the owner of the land, thus bounded, is entitled to in was that of a life or lives in being and one-and-
these additions. By some, the rule has been vindicated
on the principle of natural justice that he who sus- twenty years afterward.*
Under this rule, one Peter Thelluson, in 1796, de-
tains the burden of losses and of repairs, imposed by
the contiguity of waters, ought to -receive whatever also New Orleans v. United States, 10 Pet. 717 (1836);
benefits they may bring by accretion ; by others, it is Jones V. Johnston, 18 How. 156 (1855) ; 2 Bl. Com. 261-62.
derived from the principle of public policy, that it is 1 Barney v. Keokuk, 94 U. S. 337(1876), Bradley, J.;
the interest of the community that all land should Steers v. City of Brooklyn, 101 N. Y. 66 (1885), cases.
have an owner, and most convenient, that insensible "Maas V. Amana Society, 111. (1877): 16 Alb. L. J. 76;
additions to the shore should follow the title to the 13 Irish Law T. 381.
shore itself.* s F. accrocfter, to draw to one's self: croc, a hook.
< See 4 Bl. Com. 76; 2 Steph. Hist. Cr. L. Eng. 346.
• [3 Washb. E. P. 451. See also 4 Kent, 438; 34 La. * F. accreu: L. accrescere, q. v.
An. 888. ' "87Ind. 264; 91 Ul. 95.
' [Lammers v. Nissen, 4 Neb. 850 (1876), Gantt, J. ' 98 U. S. 476; 17 F. E. 872; 1 Story, Eq. § 213.
"Hess V. Muir, 65 Md. 597 (1886), Eitchie, J. 'L. ad-cumulare, to amass: cumulus, aheap.
* Banks t). Ogden, 2 WaU. 67 (1864), Chase, C. J. See 93 Bl. Com. 174; 2 Kent, 363.
 ACCUSARE
ACKNOWLEDGMENT
20
Tised his fortune to trustees, for accumulation during ACCUSE. To charge with violation of
the lives of three sons and of their sons, and during
the life of the survivor. At the death of this last sur- law; specifically, to charge with criminal
vivor the fund was to he divided into three shares — misconduct. See Ac(JUSARE.
one share for the eldest male lineal descendant of each Accusation. A charge that one has com-
of his three sons ; upon failure of such descendant, the mitted a misdemeanor or crime; also, the
share to go to the descendants of the other sons. The act of preferring such a charge.
testator left three sons and four grandsons living, and
twin sons horn soon after his death. It was foimd "To accuse" is to bring a charge against
that at the death of these nine persons the fund would one before some court or officer; and the
exceed nineteen million pounds; and, upon the sup- person thus charged is " the accused." i
position of only one person to take and a majority of A threat to accuse of a crime does not refer to ac-
ten years, that the sum would exceed thirty -two mill- cusing by way of railing, or slander, or bearing false
ion pounds. The will was upheld, as within the limits witness under a separate accusation made by others,
of the common-law riile, by the court of chancery in but the institution or participation in the institution
1798, and by the House of Lords in 1805. ' of a criminal charge before some one held out as com-
By statute of 39 & 40 Geo. m (1799), c. 98, known petent to entertain such a charge in lawful course."
as the Thellusson Act or the Statute of Acbumulations, See ment,Crime; Examinatioh, 8; Indictment; State-
accumulation was forbidden beyond the life of the 1.
grantor (or testator), twenty-one years fi-om his death, ACCUSTOMED. See Custom; Habit.
and during the minority of any person living or in Where a deed conveyed a water privilege with the
ventre sa mere at his death, or during the minority of power and appurtenances as they then existed, and
any person who, under deed or will, would, if of full with the right to rebuild a dam, and to pass and re-
age, be entitled to the income." pass in the use of the same over the '* accustomed
And such also is the law in most of the States; so
way," it was held that the right of way must be re-
that directions for accumulation beyond those limita- garded as hmited to the last accustomed way. 2
ACKNOWLEDGMENT. Owning to;
tions are void.^ SeeALiBNATio, Eel; Devise, Execu-
tory; PERPETUrrT.
avowal, admission.
ACCUSARE. L. To lay to one's charge ; 1. A statement by a debtor that a claim,
to accuse, q. v.
barred by the statute of limitations, is still a
Acousare nemo se debet. No one is valid obligation.
obliged to accuse himself. Takes the case out of the statute, and revives the
Nemo tenetur seipsum accusare. No one is original cause of action.
bound to accuse himself. An acknowledgment which will revive the original
Nemo tenetur seipsum prodere. No one is cause of action must be unqualified and unconditional.
It must show positively that the debt is due in whole
bound to betray or expose himself. or in part. If connected with circumstances which
It is the privilege of a witness not to answer a ques- affect the claim, or if conditional, it may amount to
tion where there is real, not imaginary, danger that
a new assumpsit for which the old debt is a sufficient
the answer may criminate himself.
consideration; or if it be construed to revive the orig-
The rule is intended to preserve the witness from
inal debt, that revival is conditional, and the perform-
temptation to commit pei-jury. ance of the condition, or a readiness to perform it,
A husband cannot testify against his wife, or vice
versa.* But a bankrupt must answer fully as to the must be shown."
A new promise, as a new cause of action, ought to
disposition of his property. ' And a member of a pub- be proved in a clear and explicit manner, and be in its
lic corporation may be compelled to testify against
terms unequivocal and determinate; and, if any con-
the corporation." ditions are annexed, they ought to be shown to be per-
The rule has lieen relaxed, and a difference made
formed. Ifthere be no express promise, but a promise
between private crime? or those arising out of com- to be raised by implication of law from the acknowl-
merce or the private relations of society, and public
edgment ofthe party, such acknowledgment ought to
crimes or those relating strictly to the general welfare contain an unqualified and direct admission of a sub-
of the state.' sisting debt, which the party is liable and willing to
See Cbiminate; Stultify; Turpitude. pay. If there be accompanying circumstances which
repel the presumption of a promise or intentJon to pay ;
I Thellusson u Woodford, 4 Ves. 837-343; 11 id. 112-60. if the expressions be equivocal, vague, and Indetermi-
«4 Kent, 284; WIU. B. P. 306. nate, leading to no certain conclusion, but at best to
14 Kent, 3J6, 871; Pray v. Hegeman, 93 N. T. 514-15 probable inferences, which may affect different minus
(1883); Scott «. West, 63 Wis. 574-83 (1885), cases.
4 1 Greenl. Ev. §§ 380, 340. 'People V. Braman, 30 Mich. 468-70 (1874), cases.
» 3 Pars. Coutr. 519. Graves, C. J. See also Commonwealth v. Andrer<!8,
• 1 Greenl. Ev. § 331. See 1 Bl. Com. 413; 4 id. 396; 133 Mass. 204 (1882).
107 Mass. 181 ; 10 N. Y. 10, 33. ' Ferriss v. Knowles, 41 Conn. 308 (1874).
' Whart. Max. 33; Broom, Max. 968, 970; 17 Am. Law 'Wetzell v. Bussard, 11 Wheat. 315, 311-16 (1826X
Eev. 793. cases, Marshall, C. J.
 ACKNOWLEDGMENT 21 ACKNOWLEDGMENT

in different ways, thsy ought not to go to a jury aa Conveyance of the estates of married women by
evidence of a new promise to revive the cause of action. deed, with separate examination and acknowledg-
Any other course woxUd open up all the mischiefs ment, has taken the place of the alienation of such
against which the statute was intended to guard inno- estates by " line " in a court of record under the law
cent persons, and expose them to the dangers of heing of England. For fraud in levying a fine, the court of
entrapped in careless conversations, and betrayed by chancery would grant relief, as in the case of any
prejudices. It may be that in this manner an honest other conveyance. And so now, her deed of convey-
debt may sometimes be lost, but many mifounded re- ance does not bind her if her acknowledgment was
coveries will be prevented. 1 obtained by fraud or duress, or if, by reason of infancy
No case has gone the length of saying that there or insanity, she was not competent to make the con-
must be an express promise to pay in terms. A clear, tract. Statute of 18 Edw. L (1890) enacted that if a
distinct, imequivocal acknowledgment of a debt as an feme covert should be a party to a fine, she was first
existing obligation, identifying it so that there can be to be examined by certain justices; and if she dis-
no mistake as to what it refers to, made to a creditor sented, the fine was not to be levied. This was held to
or his agent, takes a case out of the statute.* mean that the fine ought not to be received without
" I will pay the debt as soon as possible," constitutes her examination and consent; but that if it was re-
a new and sufficient acknowledgment.' ceived, neither she nor her heirs could be permitted
Acknowledgment does not necessarily imply words.-* to deny that she was examined and freely consented;
See further Promise, New. for this would be contradicting the record, and tend to
2. The act of a grantor in going before a weaken the assurances of real property.
The object of statutes requiring the separate exami-
competent officer and declaring that tlae in- nation of the wife to be taken by an officer, to be cer-
strument he produces is his act and deed.' tffied by him in a particular form, and to be recorded
Also, the official certificate that such dec- in the public registry, is not only to protect her by
laration was made. , making it the duty of such officer to ascertain and to
The acknowledgment or the proof which may au- certify that she has not executed the deed by compiil-
thorize the admission of a deed to record, and the sion or in ignorance of its contents, but to faciUtate
recording thereof, are provisions for the security of the conveyance of the estates of married women, and
creditors and purchasei-s. They are essential to the to secure and perpetuate evidence, upon which trans-
vaUdity of the deed as to those persons, not as to the ferees may rely, that the requirements of the law
have been complied with. The duty of the officer in-
grantor.^ volves the exercise of judgment and disoretiotf, and
An acknowledgment, regular on its face, makes the
instrument evidence, without further proof, and fits it so is a judicial or quasi judicial act. The conclusion
for being recorded. The exact words of the statute is that, except in case of fraud, his certificate, made
need not be followed: it is sufficient if the meaning be and recorded as the statute requires, is the sole and
conclusive evidence of the separate examination and
clearly and fully expressed.' acknowledgment, and that, except where fraud in
In the case of a wife, the certificate must show that
procuring her execution is alleged, extrinsic evidence
she was examined separate and apart from her hus-
band; that she was of full age; that the contents of of the manner in which the examination was con-
the deed were first made knovra to her; and that she ducted isinadmissible.!
acted of her own free will. Otherwise, although re- Whenever substance is found in a certificate, obvi-
ous clerical errors and all technical defects will be
corded, her acknowledgment constitutes neither a
disregarded, and, in order to uphold it, the certfficate
record nor notice.' will be read in connection with the instrument and in
1 Bell V. Morrison, 1 Pet. 368 (1828), Story, J. See
the light of surrounding circumstances.'^ See Exam-
also Moore o. Bank of Columbia, 6 id. 91-94 (1832); ination, 5;Notice, 1.
Fort Scott V. Hickman, 118 U. S. 163 (1884); Green v. 3. Admission of a fact ; confession of guilt.
Coos Bay Wagon Co., 23 F. R. 67 (1885), cases; Curtis
V. Sacramento, TO Cal. 414-16 (1886); Chidsey u. Powell, See Confession, 2.
• 7
91 Mo. 686(1887).
2 Jones V. Lantz, 63 Pa. 326 (1869), Sharswood, J.; Michael, id. 571-73 (1883), cases; Langton v. Marshall,
Wolf ensbiu-ger i;. Young, 47 id. 517(1864); Shaeter v. 59 Tex. 898 (1883) ; Schley v. Pullman's Palace Car Co.,
Hoffman, 113 id. 5 (1886), cases; 114 id. 358; 23 Alb. 120 U. S. 675 (1887), citing m. cases; 1 Bl. Com. 444.
Law J. 104-5 (1881), cases. 1 Hitz V. Jenks, 123 U. S. 301-3 (1887), cases. Gray, J.
'Norton v. Shepard, 48 Conn. 141 (1880), cases. In this case a notary had taken the acknowledgment
* Bailey v. Boyd, 59 Ind. 298 (1877). in the statutory form, and the wife admitted that the
e [Short v. Coulee, 28 111. 228 (1862), Breese, J. signature was hers, but did not recollect executing the
» Lessee of Sioard v. Davis, 6 Pet. 136 (1832). deed, and denied that it was explained to her. Held,
' Wiekersham v. Eeeves, 1 Iowa, 417 (1855) ; Owen v. there being no proof of fraud or duress, evidence to
Norris, 5 Blackf. 481(1840); Becker v. Anderson, 11 impeach the certificate was properly rejected. See
Neb. 497 (1881); Spitznagle v. Vanhessch, 13 id. 338 also Davey v. Turner, 1 Dallas, *13 (1765); Lloyd v.
Taylor, ib. *17 (1768); Cox v. GiU, 83 Ky. 669 (1886);
Davis V. Agnew, 67 Tex. 310 (1886); Cover v. Manaway,
8 See Paxton v. MarshaU, 18 F. R. 361, 364-68
cases; Toungt;. Duvall, 109 TJ. S. 577 (1883); McMulleu 115 Pa. 345 (1887).
2 King V. Merritt, Sup. Ct. Mich. (Oct. 13, 1887), cases
V. Ea^an, 21 W. Va. 844-45 (1882), cases; Watson v.
 ACQUAINTED 23
ACQTnTTAlj

ACQirArN"TED. Implies a mutual ac- tion. When the thing is obtained from an-
quaintance; as where one , swears that he is other by his act or the act of the law ; as in
"well acquainted" with an applicant for cases of gift, sale, forfeiture, succession, mar-
naturalization.!
riage, judgment, insolvency, intestacy.'
Having a substantial knowledge of the The property that a bankrupt acquires, after he has
subject-matter ; as of the paper to which a devoted all his possessions to the payment of his debts,
certificate is afiixed.2 is his individually.'*
Where one makes a deed, of land as owner and sub-
ACQUETS. See Pckchase, 3.
sequently acquires an outstanding title, the acquisi-
ACQUIESCENCE.3 A keeping quiet: tion enures to the grantee by estoppel.' See under
consent inferred from silence or from failure Covenant, 1.
to object, the person to be charged having A judgment may not be a lien upon after-acquired
land, unless specially made so, as by a scire facias or
knowledge of the essential facts. Tacit en- some analogous proceeding.*
couragement toan act done ; assent. ACQUIT. F. Exonerated, acquitted,
Imports mere submission, not approbation; as when cleared.
it is said tbat the board of trustees of a college acqui-
esced in legislation affecting tbeir charter.* Autrefois acquit. Formerly acquitted.
Implies such knowledge of facts as will enable the Opposed, autrefois convict. A plea in bar,
party to take effectual action. One may not then rest that the accused has already been cleared of
until the rights of third persons are involved and the the charge.5 See Acquittal, Former.
situation of the wrong-doer is materially changed.^ ACQUITTAL. Setting free ; deliverance
Where a person tacitly encourages an act to be done,
he cannot afterward exercise his legal right in oppo- from a charge or suspicion of guilt ; the act
sition to such consent, if this encouragement induced or action of a jury in finding that a person
the other party to change his position, so that he will accused of a crime is not guilty.,
be pecuniarily prejudiced by the assertion of silch ad-
Acquitted. " Set free or judicially dis-
versary claim." charged from an accusation ; released from a
See further Affirm, 2; Estoppel; Silence;' StaIiE; debt, duty, obligation, charge, or suspicion
Waiter.
ACQUIRE.' To obtain, procure : as, to ac-
quire property, a domicil. Compare Hold, 6. of Eefers
guilt."to 6both civil and criminal prosecutions."
Acquittal in fact. A verdict of not
AecLuired."In the law of descent, includes guilty. Acquittal in law. A discharge by
lands that come to a person in any other way
operation of law ; as, where one is held as an
than by gift, devise, or descent, from an an-
cestor.' 8 accessary and the principal is acquitted.''
Former acquittal. An acquittal in a
After-acquired. Obtained after some event
or transaction: as, property acquired after former prosecution.
When the facts constitute but one offense, though
an adjudication in bankruptcy, or after a divisible into parts, a final judgment on a charge of
judgment has been entered. one part bars a prosecution for another part. When
Acquisition. Procuring a thing — spe- the facts constitute two or more offenses wherein the
cifically, property; also, the property itself. lesser is necessarily involved in the greater, and the
facts necessary to convict on a secbnd prosecution
See Inherit; Pdechase, 2, 3. would necessarily have convicted on the first, then the
Original acquisition. When, at the mo- first judgment bars another prosecution.^
ment, the thing is not another's, i. e., is ac- The greater includes the lesser crime.* Compare
quired by first occupancy — by accession, Conviction, Foriner.
intellectual labor, etc. Derivative aequisi-
1 [8 Kent, 355, 386.]
» United States v. Jones, 14 Blatch. 90 (1877). = Allen V. Ferguson, 18 Wall. 4 (1873).
s Bohan v. Casey, 5 mo. Ap. 106-7 (1878). = Irvine v. Irvine, 9 Wall. 635 (1869).
'ij. acquiescere, to rest in or upon: quies, quiet. * See Loomis v. Davenport, &c. E. Co., 17 F. R. 305
< Allen V. McKean, 1 Sumn. 314 (1833), Story, J. (1888); 1 Jones, Mortg. § 15^'. See generally Babcock
'Pence v. Langdqn, 99 U. S. 681 (1878), Swayne, J. V. Jones, 15 Kan. 301 (1875), cases; 21 Cent. L. J. 500-3
See also Matthews v. Murchison, 17 F. E. 766 (1883); (1885), cases.
Eamsden v. Dyson, L. E., 1 H. L. 129 (1865). » See 4 Bl. Com. 335.
» Swain v. Seamans, 9 Wall. S54, 267, 274 (1869), Clif- « DoUoway v. Turrill, 26 Wend. 400 (1841): Webster.
ford, J. » [2 Coke Inst. 364.]
''L. acquirere^ to get, obtain: quaerere^ to seek. 'State V. Elder, 65 Ind. 886-86 (1879), cases; 58 N. H,
s Be Millars' Wills, 2 Lea, 61 (1878); Donahue's Estate, 267; 4 Cr. L. M. 411.
36 Cal. 332 (1868). » 18 Cent. Law J. 398-94 (1884), cases.
 ACQUITTANCE ACT
33
ACQUITTANCE. A written discharge Something superhuman, or something in
from the performance of a duty ; also, the opposition to the act of man.i
writing itself. Every "act of God" is an "inevitable accident,"
Includes a common receipt for money paid.^ because no human agency can resist it; but it does not
A receipt for damages may operate as an acquit^ follow that every inevitable accident is an act of God.
tance, when not a release. ^ Damage done by lightning is an inevitable accident,
An acquittance under seal Is a " release," q. v. and also an act of God, but the collision of two ves-
ACRE. Formerly, in discussing the law sels, in the dark, is an inevitable accident, and not an
act of God.a
of real estate, for brevity, " black acre " and That maybe an "inevitable accident " which no
^' white acre" were used to distinguish par- human foresight or precaution can prevent; while
cels. See Estimate; More or Less. " act of God " denotes a natural accident which could
ACT. 1. A thing done or performed; the not happen by the intervention of man. The latter
expression excludes all human agency. Moreover, to
exercise of power; an effect produced by
excuse a carrier, the act of God must also be the
power exerted. 3 See Actum. immediate, not the remote, cause of the loss.*
- "'Act" and "intention" may mean tlie same as Coiu'ts and writers have differed as to whether " un-
*' act " alone, for act implies intention, as in tlie ex- avoidable accident " in a bill of lading is exactly
pres ion death
" by his own act or intention." * equivalent to the exception of the common law " act
A service rimning through several days, as, inven-
of God or of the public enemies." Some treat " in-
torying attached goods, may be treated as one act.* evitable accident," " perils of the sea," " of naviga-
The law deals with the acts of men as members of
tion," "of the road," as equivalent to the " act of
society under a contract honeste vivere^ alterum non God " as this phrase is used by judges and lawyers;
laedere^ suum cuique tribuere: to live honorably, hurt and others treat them as expressing different ideas.
nobody, and give to every one his due."* Others again view them as Identical for the purpose
Acts are spoken of as unintentional and as of making " inevitable accident " mean " act of God,"
intentional, wanton, malicious, and criminal ; in the sense of a sudden and violent act of nature;
while others make them equivalent in order to make
as of omission and of commission ; as reason-
"act of God " mean any accident which the carrier
able ;as of diligence, and of negligence ; as cannot, by proper care, foresight, and skill, avoid.
of ownership, of sufferance, of trespass ; as Many cases overlook the common custom of mer-
of concealment and of fraud ; as overt ; as chants (the law in such matters) that all bills of lad-
judicial, and as ministerial, qq. v. ing contain an exception against losses by inevitable
What ought to be done is readily presumed. What accident, perils of the sea, etc. If a man signs a bill
ought not to be done, when done, may be valid. containing the technical phrase " act of God " he will
Equity treats that as done which ought to be done. be held according to the usual custom of commerce.
He who can and ought to forbid, commands, if he does The maxim actus Dei ne-mini facit injuriam does
not forbid. He who fails to prevent what he can pre- not appear to be different from lex non cogit ad ivn-
vent, does the act himself. When anything is pro- possibilia, impotentia excusat legem, impossibilium
hibited, everything by which it may be done is also nulla obligatio est, and other maxims of the Soman
law.
prohibited. When more is done than ought to be
done, that which it was proper to do, is accepted as "Act of God "no more excludes human agency
rightly done. What cannot be done directly cannot than do such terms as Deo volente, Deo juvante, ex
be done indirectly. Every act involves its usual conse- visitatione Dei, Providential dispensation, or the
quences, q.V. See also Estoppel; Eelatiou, 1 ; Valid. Roman terms fataliter, divinitus, cosxls fortuity^,
damnum fatale, all which originally referred to the
Act of bankruptcy. An act which ex-
intervention of the gods, in the sense that the appro-
poses adebtor to proceedings in a court of
priate human agency was powerless.
bankruptcy, q. v. When rights depend upon the life of a man, they
Act of God. Such inevitable accident end with his death, which is called an " act of God,"
as cannot be prevented by human care, skill whether from nature, accident, carelessness, or sui-
•or foresight ; but results from natural causes,
such as lightning and tempest, floods and ' Chicago, &c. E. Co. v. Sawyer, 69 111. 289 (1878),
cide.*
inundation.'' cases, McAllister, J.
1 State V. Shelters, 51 Vt. 104 (1878), cases. ^ Fergusson v. Brent, 12 Md. 33 (1857), Le Grand, C. J.
' Mitchell V. Pratt, Taney, 448 (1841). See also The Charlotte, 9 Bened. 6-16 (1877), cases; 10
' See Chumasero v. Potts, 2 Monta. 284-85 (1875). id. 310, 312, 320.
4C!hapman v. Bepublie Lite Ins. Co., 6 Biss. 240 3 Merritt v. Earie, 29 N. Y. 117-18 (1864), Wright, J.;
<1874). Michaels v. N. Y. Central R. Co., 80 id. 571 (1864),
" Bishop V. Warner, 19 Conn. 467 (1849).
•1 Bl. Com. 40: Justinian. « Hays V. Kennedy, 41 Pa. 379-80, 381, 382 (1861),
' McHenry v. Philadelphia, Sea. E. Co., 4 Harr., Del., cases, Lowrie, C.J. Dissenting opmion by Thompson,
449 (1846), Booth, C. J. J., 3 Grant, 337-64, cases: "An opinion characterized
 ACT 24 ACT

The law was first established by the courts of Where, in an action for the loss of goods, the de-
England with Reference to carriers by land, on whom fense is "an act of Gpd " [an unusual flood], the bur-
the Eoman law imposed no liability beyond that of den of showing that the negligence of the carrier
other bailees for reward. Nor did the Eoman law co-operated to produce the loss is on the shipper.
make a distinction between inevitable accident aris- Such defense may be shown under a general denial, i
ing from what in English law is termed " the act of Where a duty is imposed upon a person by law he
God," and inevitable accident arising from other will not be absolved from liability for non-perform-
causes, but, on the contrary, afforded immunity to ance occasioned by an act of God, unless he has ex-
the carrier, without distinction, whenever the loss re-
pressly stipulated for exemption.'^
sulted from " casus forfuituSj" " damnum fatale^^^ or See further Aociijbktj Careier; Condition; Possi-
" vis major "— unforeseen and unavoidable accident. BltlTT.
It is not under all circumstances that inevitable
Act of honor. Acceptance or indorse-
accident arising from the so-called act of God will, ment of protested paper, to save the credit
any mo/e than inevitable accident in general by the
of a name thereon. See Honor, 1.
Eoman and continental law, afford immunity to the
carrier. This must depend upon his ability to avert Act of the law. The operation of legal
the effects of the vis major, and the degree of dili- rules upon a fact or facts ; operation of law. 3
gence which he is bound to apply to that end. A common expression is "act and operation of
All causes of inevitable accident may be divided
into two classes: those which are occasioned by the Succession to property, surrender of leases, and
elementary forces of natuite unconnected with the some divorces are said to be created by act of the
agency of man or other cause; and those which have law."
their origin, in whole or in part, in the agency of man, An act of the law exonerates from liability.*
law.*
whether in acts of commission or omission, of non- 8. A formal written statement that some-
feasance or mis-feasance, or in any other cause inde- thing has been done ; as, that an instrument
pendent of the agency of natural forced.
It is not because an accident is occasioned by the is the maker's act and deed. See Acknowl-
edgment, 3.
agency of' nature, and therefore by what may be
termed the " act of God," that it necessarily follows 3. A law made by a legislative body.
that the carrier is entitled to immunity. The carrier Used abstractly, or with reference to a particular
is bound to do his utmost to protect the goods from statute: as, an act of Assembly, of Congress, of legis-
loss or damage, and if he fails herein he becomes lation, or of the legislature; the Civil Eights Act, the
liable from the nature of his contract. If by his de- Confiscation Acts, the Factor's Act, the Inter-State
fault in omitting to take the necessary care, loss or Commerce Act, the Legal Tender Act, Eecording Acts,
damage ensues, he remains responsible, though the the Eiot Act, Tenterden's Act, the Tenure of Office
so-called act of God may have been the immediate Act, qq. V.
cause of the mischief.
Enact. To establish in the form of posi-
What Story says of "perils of the seas " applies tive law, or by written law. Whence enact-
equally to such perils coming within the designation
ment.
of "acts of God." That is, all that can be required of
the carrier is that he shall do all that is reasonably and Enacting clause. The section of a bUl or
practically possible to insure the safety of the goods. statute which establishes the whole docu-
If he uses all the known means to which prudent and
experienced carriers ordinarily have recourse he does ment as a law. Commonly begins "Be it
all that can be reasonably required of him; and if, enacted, etc.," that is, by the Senate and
under such circumstances, he is overpowered by storm House of Representatives (or the People) of a
or other natural agency, he is within the rule which State, or of the United States.
gives immunity from the effects of such vis major as The section of a statute which defines an oflfense is
the act of God. It is, therefore, erroneous to say that not the enacting clause.^
the vis major must be such as "no amount of human " Act of Congress " is as strong and unequivocal as
care or skill could have resisted " or the injury such " statute of Congress." '
as " no human ability could have prevented." ' The legislatm-e, in exercising a power conferred.

by fine discrimination, and by accurate research," 1

Smith's Lead. Cases, 413, where extended quotation ' Davis V. Wabash, &c. E. Co., 89 Mo. 349-53 (1886),
is made from it. cases, Eay, J. Same case, 26 Am. Law Eeg. 650 (1885) •
1 Nugent V. Smith, L. E., 1 C. P. D. 429-^0, 435-36 ib. 658-60, cases.
(1876), cases, Cockburn, 0. J. ; 1 Story, Bailm. § 512 (a). » Central Trust Co. v. Wabash, &c. E. Co., 31 F. E
441 (1887).
The defendant received a mare to be carried by him
as a common carrier by sea. The jury found that her 8 17 WaU. 373, 376.
death was caused partly by very rough weather and <See 1 Bl. Com. 123; 15 Wend. 400; 2 Barb. 180-
partly from struggling due to fright, and that the de- '
fendant had not been negligent. The Court of Ap- "Taylor Ev.
2 Whart. v. Taintor,
§§ 858 16 Wall.-62
376 (1873). .
peals reversed the lower court, holding that the « United States,-!). Cook, 17 Wall. 176 (1876).
defendant was not liable for the value of the animal. ' United States v. Smith, 8 Mas. 151 (1820), Story, J.
 ACTA 25
ACTION

enacts laws, and a law is called a statute or an " act." ag trespass, battery, slander i in which the action
, . . All legislative acts are laws; if not laws, then cannot be revived by or against any representative.
they are not acts of legislation. ^ But actions arising ex contractu, by breach of prom-
A proposed law is embodied in a bill. When this ise, in which the right descends to the representative,
bill is duly passed by the legislative body it becomes may be revived: being actions against the property
an act of that body. When the executive department rather than against the person.'
signs or approves such a bill it becomes a law.^" Expresses the rule at common law with regard to
General or public act. A statute which the surviving of personal actions arising ex delicto,
for injuries to the person, personalty, or realty. By
binds the community at large. Private or
4 Edw. m (1331), c. 7, the rule was so modified as to
special act. Such act as operates only upon give an action in favor of a personal representative for
particular persons and private concerns. injuries to personalty; by 3 and 4 Will. IV (1833), o. 43,
Special or private acts are to be formally shown an action was given against personal representatives
and pleaded, else the judges are not bound to notice for injuries to personalty or realty; ^ and by 9 and 10
them.s Vict. (1846), c. 23, known as Lord Campbell's Act, a
There is no statute fixing the time when acts of right of action for damages for the death of the person
Congress shall take effect, but it is settled that where injured by the wrongful act, neglect, or default of
no time is prescribed, they take effect from their date. another, is given to near relatives — husband, wife,
Where the language employed is " from and after the parent, child. These statutes have been followed in
this country.
passage of this act," the same result follows. The act
becomes effectual from the day of its date. In such At common law actions on penal statutes do not
cases it is operative from the first moment of that survive. Congress has not changed the rule with re-
day, fractions of the day not being recognized.* spect to actions on the penal statutes of the United
A thing is done in pursuance of an act when the States. 3 See further Damages.
person who does it is acting honestly, under the powers Non oritur actio. A right of action does
which the act gives, or in discharge of the duties which
not arise — ex dolo malo, out of a fraud ; — ex
it imposes.^
See further Law; Legislate; Statotb. nudo pacto, out of an engagement without a
ACTA. See Actum. consideration ; — ecc pacto illioito, upon an
ACTING. Performing ; serving ; attend- unlawful agreement ; — ex turpi causa or
ing to the duties of an office ; as, the acting — contractu, out of an immoral cause or con-
executor, partner, commissioner of patents, tract;
reporter of decisions. Whenever illegality appears, whether the evidence
comes from one side or the other, the disclosure is
Attached to an officer's title, designates not an ap- fatal to the case. Consent carinot neutralize its effect.*
pointed incumbent, but merely a locum tenens who is
Whatever the contamination reaches it destroys.
performing the duties of an office to which he does
not himself claim title.® See further Delictum, In pari, etc.
ACTIO. L. A doing, performing: an ACTION. 1. Doing a thing, the exercise
action, or right of action. of power, physical or legal ; the thing itself as
Actio non accrevit infra sex annos. done ; an act, q. v. : as, legislative, judicial,
executive action, gg. v. See Cause, 1 (1).
The action has not accrued within six yeai-s :
the right of action has not arisen, etc. 2. " The lawful demand of one's right " ' —
The Latin form of the plea of the statute of limita- in a court of justice.*
tions. In strictness, appropriate only when the action An abstract legal right in one person to
has accrued subsequently to the promise. To an ac- prosecute another in a court of justice; a
tion on the promise, the plea is non assumpsit infra
sex annosJ See Accrue, 2. "suit" is the actual prosecution of that
Actio personalis moritur cum per-
An action or suit is any proceeding for the
sona. A personal action dies with the person.
Applies to actions merely personal, arising ex de-
licto^ for wrongs actually done by the defendant, such ■ 3 Bl. Com. 302.
right.''
= Eussell V. Sunbuiy, 37 Ohio St. 374 (1881). See also
1 People V. Tiphaine, 13 How. Pr. 76-77 (1856). Henshaw v. Miller, 17 How. 219 (1864); Mitchell v.
« Chumasero v. Potts, 2 Monta. 284-86 (1876). Hotchkiss, 48 Conn. 16 (1880); Tufts v. Matthews, 10 F.
s 1 Bl. Com. 86; Unity Township v. Burrage, 103 V. S. R. 610-11 (1882), cases; 55 Mich. 338; 143 Mass. 305.
454 (1880). 3 Schreiber v. Sharpless, 110 U. S. 80 (1884).
■"Lapeyre v. United States, 17 Wall. 198 (1872), * Coppell V. Hall, 7 Wall. 665-59 (1868), oases; Ewell
V. Daggs, 108 U. S. 149 (18831, oa^es: 107 Mass. 440; OJ
Swayn'e, J. See also 7 Wheat. 211; 1 Gall. 62; 20 Vt.
653; 21 id. 619; 1 Kent, 457. N. Y. 85; Broom, Max. 207, 7;J9.
'Smith V. Shaw, 21 E. C. L. 126 (1829). » 3 Bl. Com. 116.
•Fraser v. United States, 16 Ct. CI. 514 (1880). » McBride's Appeal, 72 Pa. 483 (1873).
'3 Bl. Com. 308. ' Hunter's WiU, 6 Ohio, 601 (1864).
 ACTION 36 ACTION

purpose of obtaining such remedy as the law Amicable action. An action entered of
allows.i record by agreement and without the service
In any legal sense, action, suit, and cause of process, to obtain the judgment of the
are convertible terms. 2 court in a matter of common interest. Op-
The "cause" of this lawful demand, or the reason posed, adversary action.
why the plaintiff can make such demand, is some
wrong act committed by the defendant, and some
Civil action. Recovers a private right or
damage sustained by the plaintiff in consequence compensation for depx-ivation thereof. Crim-
thereof: the two elements must unite.^ See further inal action. Is instituted by the state for
Cause, 2. an offense to the community or to society.
Since all wrongs may be considered as merely a Civil actions include actions at law, suits in chan-
, privation of right, the plain, natural remedy for every cery, proceedings in admiralty, and all other judicial
species of wrong is the being put in possession of the controversies in which rights of properly are in-
light again. This may be effected by a specific delivery
or restoration of the subject-matter to the legal owner, volved.'
Civil action is used in contradistinction to criminal
or, where that is not possible or at least not adequate, action; as, in the act of July 2, 1864, relating to par-
by making a pecuniary satisfaction in damages. The
ties as witnesses.2
instruments whereby this remedy is obtained are a Common-law action. An action main-
<iiversity of actions or suits. The Greeks and Romans
had set forms of actions for the redress of distinct tainable at common law. Statutory ac-
injui'ies. Our actions are founded upon original
tion. Such form of action as is given by
writs, and these are alterable by legislation only. The legislative enactment. See Remedy, Cumu-
several suits, or remedial instruments of justice, are lative.
actions personal, real, and mixed.* Cross action. An action brought by the
Whether a writ of error, a quo warranto, a manda-
mus, a scire facias, a suit in partition, a suit in equity, defendant in a suit against the plaintiff upon
a summary proceeding — in some of which the court is the same subject-matter, the particular cause
the actor, — are actions, in the strict sense, has been of action not being available as set-off in the
variously decided. first suit. See Set-off.
Action in personam. An action against Squitable action. An action for money
the person (of the defendant). Action in had and received is sometimes so called.
rem. An action against a thing — an inani- Yet, in the absence of special circumstances, courts
mate object out of which satisfaction is of equity refuse jurisdiction, because the remedy at
sought. See Res, 3. law is complete. 3 See Assumpsit, Implied.
Action of contract or ex contractu. Fictitious action. A suit upon a wager,
An action for the recovery of damages upon and under pretense of a controversy, to ob-
a, broken contract. In form: assumpsit, tain a judicial opinion upon a question of
law. See Fictitious, 1 ; Issue, 3, Feigned.
debt, or covenant (qq. v.) — all founded on In action. That for which a suit will lie
promises. Action of tort or ex delicto.
An action for the recovery of personalty or is pending. See Cho^e.
withheld, or damages for a wrong :(iot a Joint action. A suit in which all per-
breach of contract. In form : trespass, case, sons obligated or interested on one side of a
trover, replevin, or detinue {qq. v.) — all controversy appear as co-plaintiffs, and all
obligated or interested on the other side are
founded on torts or wrongs. 5
Action on the case. See Case, 3. made co-defendants. Joint and several
Actionable. That for which an action action. A suit by either one or all persons
may be maintained ; opposed to non-aetion- on one side as plaintiff or co-plaintiffs, and
able: as, actionable — fraud, defamation. against either one or all on the other side as
Words are " actionable per se " when the natural defendant or co-defendants. Separate ac-
consequence of what they impute is damage." See tion. Such action as each person must
Libel. 5; Slander.
1 Harris v. Insm:anoe Co., 35 Conn. 318, 311 (1868); 1 United States v. Ten Thousand Cigars, 1 Woolw.
Magill V. Parsons, 4 id. 322 (1822). 125 (1867). .
^Exp. Milligan, 4 WaU. 112 (1866), D?ivis, J.; 8 2 Green v. United States, 9 Wall. 658 (1869). And see
McCrary, 180; 18 Blatch. 447; 60 Wis. 478. 1 Dill. 184; 28 Conn. 580; 69 Ga. 617; 104 lud. 6, 18; 2
3 Foot V. Edwai'ds, 3 Blatch. 313 (1855), Nelson, J. Monta. 70; 51 N. H. 383; 1 Barb. 15; 14 Abb. Pr. 353; 44
»3B1. Com. 116-17. Pa. 130; 43 Vt. 297.
s See 3 Bl. Com. 117; 13 F. B. 537. s Wallis vl Shelly, 30 F. E. 748 (1887); Gaines i). Mil-
« Pollard V. Lyon, 91 U. S. 226-38 (1875), cases. ler, 111 U. S. 397-98 (1884), cases.
 ACTION 37
ACTIVE

poor, or to some public use, and the other part to the

bring when several complainants cannot pur- informer or prosecutor: and then the suit is called a
sue a joint remedy. See further Joint.
Iiocal action. A suit maintainable in qui tam action, because brought by a person '" qui
tam pro domino rege^ quam pro se ipso "— as much
some one iurisdiction exclusively. Transi- for his lord the king, as for his own self.
tory action. A suit maintainable wlierever 11 the king commences the suit he has the whole
the defendant can be found. forfeiture. If any one has begun such action, no
other person then can pursue it; and the verdict in
In " local actions," where tlie possession of land or
the first suit bars other actions. This, caused offend-
damages for an actual trespass or waste, etc., affect- ers to induce their friends to begin sUit, in order to
ing land, is to be recovered, the plaintiff must declare
his injury to have happened in the very place where forestall and prevent other actions: which practice is
prevented by 4 Hen. VH (1488), c. 20, enacting that no
it happened; but in " transitory actions," for an in-
jury that might have happened anywhere, as in debt, recovery, otherwise than by verdict, obtained by col-
detinue, slander, the ■ plaintiff may declare in what lusion, shall be a bar to any other action prosecuted
county he pleases. . . Transitory actions follow boriM fide> That being the law in England in 1776,
the person of the defendant; territorial suits must be such action cannot be prosecuted in the name of an
discussed in the territorial tribunal. i mformer imless the right is distinctly given by stat-
Actions are deemed " transitory " when the transac-
tions on which they are founded might have taken Heal action. An action whereby the
place anywhere; and "local," when their cause is, in ute. =
plaintifiE claims title to lands or tenements,
its nature, necessarily local." rents, commons, or other hereditaments, in
Actions which do not seek the recovery of land
may be " local " by common law because they arise fee-simple, fee-tail, or for term of life. Per-
out of some local subject or from the violation of sonal action. Such action whereby a man
some local right or interest; as, waste, trespass quare claims a debt, or a personal duty or damages
clausum, actions on the case for nuisances to houses, in lieu thereof, or damages for some injury
for disturbance of a right of way, for the diversion of
a water-course, and the like; also, replevin. These
to his person or property. Mixed action.
actions .are personal andlocal.^ Partakes of the nature of both of the for-
When the action by which a remedy is to be en- mer — by it real property is demanded, with
forced ispersonal and transitory the defendant may
be held liable in any court to whose jurisdiction he
personal damages for a wrong sustained.^
A "real action" is brought for the specific recov-
can be subjected by personal process or by voluntaiy ery of lands, tenements, or hereditaments. It in-
appearance. Thus, as an action in the nature of tres- cludes every form of action where the judgment is
pass to the person is transitory, the venue is immate- for the title and possession of the land demanded; as,
rial.* See AcTOB, 1, Sequitur, etc. ejectment. A " mixed action " is brought for the spe-
Penal action. A suit brought by an cific recovery of land, as in a real action, but has
officer of government to recover a penalty joined with this claim one for damages in respect to
such property; as, actions of waste and dower. A
imposed by statute. Popular action. An
"personal action " is brought for the specific recovery
action also for a penalty, maintainable by of chattels, or for damages or other redress for breach
any person. Compare Qui tarn action. See of contract and other injuries of every description,
Forfeiture; Penalty. the specific recovery of lands and tenements only ex-
Qui tam action. Qui tarn: who as well. cepted.* See Actio,' Personalis, etc.
The emphatic words in the Latin form of a EigM of action. Eight to bring, a suit ;
declaration in an action by an informer for a such right as will sustain a suit ; in particu-
penalty. lar, a right of remedy or recovery at law.5
Civil in form, but designed to recover a penalty im- See Actio; Book- Account, Action of; Cikohity;
posed by a penal statute; therefore, partially at least, Commence; Consolidate; Disoontikuance: Form, 2;
criminal in nature. ^ Gist; Issue, 3; Multiplicity; Party, 2; Pend; Pro-
Sometimes one part of a forfeiture, for which a ceeding; Process, 1; Ees, 2.
' popular action will lie, is given to the king, to the
ACTIVE. 1. Produced by exertion; re-
sulting from intentional action; opposed to
1 [3 Bl. Com. 394, 384. passive : as, active — deceit, waste, gg. v.
2 Livingston v. Jeffeifeon, 1 Trock. 209 (1811), Mar- 3. Eequiring intelligent direction, personal
shaU, C. J.
3 Hall V. Decker, 48 Me. 256-57 (1860).
* Dennick v. Central E. Co. of New Jersey, 103 U. S. 1 3 Bl. Com. 161-62.
17-18, 21 (1880), cases; Livingston v. Jefferson, 4 Hughes, 2 O'Kelly V. Athens Manuf . Co. 36 Ga. 53 (1867).
611-13 (1811), Marshall, C. J. ; Oliver v. Loye, 69 Miss. a [3 Bl. Com. 117-18.
331-23 fi881), cases; E. S. §§ 739-15, cases. ♦ [HaU V. Decker, 48 Me. 255-56 (1860).
estate v. Kansas City, &c. E. Co., 32 F. E. 726 (1887), » As to premature actions, see 21 Cent. Law J. 401-12
Brewer, J.; E. S. Mo. § 1709.
(1885), cases.
 ACTOR 28
ADDITION

exertion ; opposed to passive : as, an active — Actus Dei nemini facit injuriam. An
trust, use, gg. v. act of God does wrong to no one.
ACTOR. 1. Lat. A doer; a plaintiff. No one is responsible in damages for the result of
See Caveat, Actor. an inevitable accident, g. v.
Actor sequitur forum rei. The plaint- Actus legis nemini facit injuriam.
i£E follows the forum of the thing — the An act of the law wrongs no man.
An act of the law is to be so limited in its operation
thing in suit, or the residence of the defend-
that no right shall be prejudiced. ^
ant.! Actus non facit reum, nisi mens sit
Personal actions are to be brought before the tribu-
nal of the defendant's domicil. Actions for collisions rea. An act does not make a man a crimi-
between vessels may be brought where neither party nal, unless his intention be criminal.
resides: on the ground that a quasi-contract arises on To constitute a crime the intent and the act must
the part of the wrong-doer to pay the damage he has concur; a mere overt act, without wrongful intention,
caused, and that the place of performance is taken to does not malre guilt.^ See Consequences ; Malice.
be the port at which the injured vessel first arrives.^ . AT). L. At, to, for; according to; on ac-
See Action, 2, Local. count of.
Actori incumbit probatio. On the In compounds assimilates with the consonant fol-
plaintiff rests the proving — the " burden of lowing, becoming ac-, af-, ag-, al-, an-, ap-, ar-, as-, air.
proof," q. V. Ad colligendum. For collecting (the
2. Eng. (1) A doer, a performer: as, the goods). See under Administer, 4.
chief actor in a crime. ^ See PRliiciPAL, 5. Ad damnum. To the loss. See Dam-
num.
He who institutes a suit; a plaintiff,* q. v.
He who avers a matter as a fact or law. Ad diem. On the (very) day. See Dies.
(3) A stage-player. See Review, 3. Ad fllum. To the line. See Filum.
I ACTUAL. Existing in act ; really acted ; Ad hoc. On this (subject).
I real, at present time; as a matter of fact. Ad idem. To the same (thing or effect).
See Assent.
! Opposed, constructive: speculative, implied,
legal. Ad interim.
rarily. In the meantime; tempo-
An assault with " actual " violence is with physical
force put in action, exerted upon the person assailed.* Said of one, as an assignee, who serves in the place
It is common to speak of an actual or the of another; also, of a receipt for a premium paid,
actual — annexation of a fixture, appropria- pending the approval of a risk in insurance against
fire. See Interim.
tion of a thing, attachment, battery, break- Ad litem. For the suit. See Guardian, 3.
ing, close or curtilage, cost, costs, damage,
Ad majorem cautelam. For the sake
delivery, escape, eviction, fraud, knowledge, of caution. See Cautela.
levy, loss, malice, notice, occupation, pay- Ad medium fllum. To the middle line.
ment, possession, presence, seizure, use, See Filum.
value, violence, qq. v.
Ad pios usus. For religious purposes.
ACTUM; ACTUS. L. A thing done: See Usus.
an act ; action.
Ad quaestionem. See Qu^stio.
Acta exteriora indicant interiora se-
Ad quem. To which. See A, 5, A quo.
creta. Outward acts evince the inward pur-
Ad quod damnum. To the loss which.
pose. See bvEET ; Will, 1.
See Damnum.
Actus curiae neminem gravabit. An
Ad sectam. At the suit of. See Suit, 1.
act of the court shall oppress no one.
A court will not suffer a party to be prejudiced by Ad valorem. According to valuation. ■
its own action, as, by delay. On this principle orders See Duty, 3.
are sometimes entered nunc pro func^^ q. v. ADDITIOIT.s 1. Under a statute allow-

1 2 Kent, 462. ing a mechanic's lien upon an "addition

^Thomassen v. Whitwell, 9 Bened. 115 fl877). to a former building," the new structure
~ s See 4 Bl. Com. 34. must be a lateral addition. It must occupy
■iSeeSBl. Com. 25.
■ 2 Bl. Com. 123 9 Ga. 400; Broom, Max. 127, 409.
■= State V. Wells, 31 Conn. 313 (1862). See 16 Op. Att- ' 4 Bl. Com. 3, 2 4 N. Y. 159, 163, 195; Broom, Max.
Gen. 447, 445. 3or.
« See Cumber v. Wane, 1 Sm. L. C. •44445; 103 U. S.
65; 119 id. 596; 3 Col. 236; Broom, Max. 122. ° L. ad-dare, to add to.
 ADDRESS S9
ADEQUATE

ground beyond the limits of the original If a horse, specifically bequeathed, die during the
building. 1 testator's life-time, or be disposed of by him, the legacy
A change in a building by adding to its height, or will be lost or adeemed, because there will be nothing
depth, or to the extent of its interior accommodations, on which the bequest can operate. The only question,
in such case, is, whether the specific thing remains
is an *' alteration," not an addition.^ after the death of the testator.
Additional. Given with, or joined to,
ADEQirATE.2 Equal, proportionate,
some other : as, an additional — building,
legacy, security. fully sufficient, complete. Opposed to in-
Embraces the idea of joining or uniting one thing
adequt.
1. If a consideration has some value it need not be
to anotlier so as to form an aggregate.^
adequate. Inadequacy is regarded only when gross
"Additional security " is that which, imited with or and when i|nposition is apparent; but it may prevent
joined to the former security, is deemed to make the
specific performance, amd justify small damages for
aggregate sufBcient as a security from the beginning.'
3. A word or title added to the name of a a breach of contract."*
The immediate parties to a bargain are the judges
person to help identify him. of the benefits derivable therefrom. To avoid a bar-
Addition of estate (staitts): yeoman, gentleman, es- gain for inadequate consideration the inadequacy must
•quire. Addition of degree: knight, earl, marquess, be so great and manifest as to shock the conscience
duke — names of dignity. Addition of domicil: place and confound the judgment of common sense.* See
of residence. Addition of mystery or trade: scriv- Bid.
ener, laborer, etc.^ Gross inadequacy alone does not constitute a suffi-
By 1 Hen. V. (1413), u. 5, an indictment must set cient reason to impeach the genuineness of a sale
forth the Christian name, surname, and the addition made by a trustee. The inadequacy must be such as
of degree, mystery, place, etc.* See Name, 1. to shock the conscience or raise a presumption of
ADDBESS. 1. The part of a bill in equity fraud or unfairness.'
which describes the court.s Where gross inadequacy of price is coupled with
2. The name and residence of the drawee accident, mistake, or misapprehension, caused by a
purchaser or other person interested in a public sale,
in a bill of exchange. See Protest, 3. or by the officer conducting the sale, a court of equity
ADEMPTIOlSr.6 The act by which a tes- will set the sale aside." See Influence.
tator pays to his legatee, in his life-time, a 3. Where there is an adequate remedy at
general legacy which by his will he had pro- law for the redress of an injury, resort may
posed to give him at his death ; also, the act not be had to a court of equity. This means
by which a specific legacy has become inop- a remedy vested in the complainant to which
erative on account of the testator having he may at all times resort at his own option,

parted with the subject." Whence adeem, fully and freely, without let or hindrance.'
adeemed. The remedy at law must he plain, adequate, and
When a parent gives a legacy as a portion, and, complete, and as practical and efidcient to the ends of
afterward, advances in the same nature, the latter justice and to its prompt administration as the remedy
presumably satisfies the former.^ in equity. In that case the adverse party has a right
The ademption of a legacy of personalty is not usu- to a trial by a jury."
ally called a "revocation." When ademption is not But a judgment and a fruitless execution at law are
used the act is called "satisfaction," "payment," not The
necessary."
absence of a plain and adequate remedy at law
"performance," "execution." But these terms, so
used, have not their ordinary sense ; for their primary affords the only test of equity jurisdiction; the appli-
relation is to some debt, duty, or obligation resting ab- cation of the principle to a particular case must de-
solutely upon a party ; whereas a will, having no effect
Denio, 0. J.; Same v. Same, 3 Duer, 541 (1854); Beck v.
in the maker's life-time, does not bind him to anything. McGUlis, 9 Barb. 56 (1850).
" Ademption " is the most significant." See Bevoke. I Ford V. Ford, 23 N. H. 215-17 (1851), cases, Gilchrist,
C.J.
1 [Updike V. SkiUman, 27 N. J. L. 132 (1858), Green, ' L. adcsquatus, made equal.
C.J. s 1 Pars. Contr. 438, 492, cases.
2 State V. Hull, 63 Miss. 645 (1876); 139 Mass. 356. * 1 Story, Eq. §§ 244-47; Lawrence u McCalmont, 2
' [Termes de la Ley. How. 452(1844).
*i Bl. Com. 306; 1 id. 407; W Cush. 402; 1 Mete., » Clark V. Freedman's Sav. & Trust Co., 100 U. S. 152
Mass., 151. (1879), cases; Cleere v. Cleere, 82 Ala. 588 (1880); Garden
BSeeStory, Eq. PI. §26. V. Lane, 48 Ark. 219 (1886), cases.
» L. adimere, to take away. • Cole County v. Madden, 91 Mo. 614 (1887), cases; 20
' See 3 Will. Exec. 1330. Cent. Law J. 850 (1888), cases.
'Strother v. Mitchell, 80 Va. 154 (1885); Trimmer v. ' Wheeler v. Bedford, 54 Conn. 249 (1886), Park, C. J.
Bayne, 7 Ves. *515 (1802). "Morgan v. City of Beloit, 7 Wall. 618 (1868), cases.
« Langdon v. Astor's Executors, 16 N. Y. 39-40 (1857), » Case V. Beauregard, 101 U. S. 690 (1879).
 ADHEEING 30 ADJUDICATE

pend altogether upon the character of the case as

disclosed by the pleadings.' See further Equity. ADJOUIlTJ'.i To put off, or defer to an-
other day specified; also, to suspend for a
ADHERrCfG-. See Treason.
time, to defer, delay. 2
ADIT. A horizontal entry to a mine. Eeferring to a sale or a judicial proceeding, may
A statute which provides that " an adit at least ten include fixing the time to which the postponement is
feet in, along the lode, from the point of dlscoTery , shall
be equivalent to a discovery shaft," contemplates that made.^
the ten feet may be wholly or in part open or under Adjournment. Putting off untU another
cover, dependent upon the nature of the groimd.^ time and place.'
ADJACENT.3 Near, but not touching. A continuation of a previous term of court.*
A continuance of a session from one day to
Applied to lots, is synonymous with " con-
another. 5 See Vacation.
tiguous." In another relation it might have
a more extended meaning.* See Adjoining; ADJUDGE. To decide judicially ; to ad-
Contiguous; Vicinity. judicate sometimes,
; to declare or deem, but
Certain acts of Congress authorized the defendant not implying any judgment of a judicial tri-
bunal.
to take from public lands " adjacent " to its road
materials necessary for the construction and repair of
As in a statute declaring that "all lotteries are
its railway. Held^ that the reference was to such ma-
terials as could be conveniently reached by ordinary hereby adjudged to be common nuisances." ' Com-
transportation by wagons, and that the privilege did pare Deem.
ADJUDICATA. See Adjudicatus.
not include the right to transport timber to distant
ADJUDICATE. To determine in the
parts of the road.»
Whei*eth6 "adjacent" ends and the non-adjacent exercise of judicial power; to pronounce
begins may be difitlcult to determine. On the theory judgment in a case.
that the material is taken on account of the benefit
Adjudicated. Judicially determined : as,
resulting to the land from the construction of the road,
the term ought not to be construed to include any land an adjudicated — case, bankrupt.
save such as by its proximity to the line of the road is Adjudication. Determination by judi-
cial authority.
directly and materially benefited by its construction.*
ADJOINING-.' Touching or contiguous, Former adjudication. Judicial determi-
as distinguished from lying near or adjacent ; nation of a matter previously in litigation.
in contact with.s When the judgment, rendered in the former trial
In popular use seems to have no fixed between the same parties, is used as a technical es-
toppel, or is relied upon by way of evidence as conclu-
meaning. Frequently expresses nearness. ^ sive per se, it must appear, by the record of the prior
What is " adjacent " may be separated by the inter- suit, that the particular controversy sought to be con-
vention of a third object. What is "adjoining " must cluded was necessarily tried and determined — that
touch in some part. What is "contiguous," strictly is, if the record of the former trial shows that the ver-
speaking, should touch along one side.° dict could not have been rendered without deciding
Towns contiguous at their corners are adjoining. i" the particular matter, it will be considered as having
The whole yard of a house of correction, though di- settled that matter as between the parties ; and where
vided by a street, from which it is fenced off, is ad- the record does not show that the matter was necessa-
joining or appurtenant to the house.'' V rily and directly found by the jury, evidence aliunde
Compare Abut; Adjacent; Appertain. consistent with the record may be received to prove
' Watson V. Sutherland, 5 Wall. 79 (1866). the fact; but, even where it appears extrinsically that
2 Electro-Magnetic Mining, &c. Co. v. Van Auken, 9 the matter was properly within the issue controverted
Col. 207 (1886); Gray v. Truby, 6 id. 278 (1883); Gen. in the former suit, if it be not shown that the verdict
Ldws Coi: 630, § 7. and judgment necessarily involved its determination,
8 L. adjacere, to lie near. it will not be concluded.^
* Municipality No. Two, 7 La. An. 79 (1852), Eustis, The former adjudication is a finality, concluding
C. J. See Continental Improv. Co. v. Phelps, 47 Mich.
899 (188«). ' P. ddjorner, to put off to another day.
s United States v. Denver, &o. E. Co. 3i F. E. 886, ' La Farge v. Van Wagenen, 14 How. Pr. 58 (1857).
889 (1887), Hallett, J. "Wilson V. Lott, 5 Fla. 308 (1863).
'United States u Chaplin, 31 F. E. 890, 896 (1887), •Van Dyke v. State, 22 Ala. 60 (1853); 6 Wheat. 109.
Deady, J. » Trammell v. Bradley, 37 Ark. 379 (1881); 1 Bl. Com.
^ F. adjoinder: L. ad-jungere, to join to. 187.
e Be Ward, 52 N. Y. 397 (1873); MUler v. Mann, 55 Vt. •State V. Price, 11 N. J. L. 818 (1830); Blaufus v.
479 (1882); Akers v. United E. Co., 43 N. J. L. 110 (1881). People,'69 N. Y. Ill (1877).
"Peverelly v. People, 3 Park. Cr. E. 69, 73 (1855); ' Packet Company u. Sickles, 5 Wall. 598 (1866),
Crabbej Syn. cases. Nelson, J.; Aurora City v. West, 7 id. 102-3
" Holmes v. Carley, 31 N. Y. 289, 293 (1865). ), cases; Goodenow v. Litchfield, 59 Iowa, 831
" Commonwealth v. Curley, 101 Mass. 25 i; ib. 549.
 ADJUDICATUS 31 ADMINISTER

parties and privies, as to every matter received to sus- To make a matter res judicata there must be con-
tain or to defeat the claim, and as to what might have currence of four conditions: identity — in the thing
been offered for that purpose. But where the second sued for, of the cause of action, of the parties to the
action is upon a different demand, the former judg- action, and of the quality in the persons.'
ment isan estoppel only as to the matters in issue upon Transit in rem judicatam. It passes
the determination of which the finding was rendered.^ into
A judgment of a court of competent jiirisdiction, ment.a thing adjudicated; it becomes a judg-
upon a question dh'eotly involved in one suit, is con-
clusive as to that question in another suit between the Applies to a contract upon which a judgment has
same parties. But to this operation of the judgment been obtained. ^
it must appear, from the face of the record or be ADJUST.!" To determine what is due;
shown by extrinsic evidence, that the precise ques- to settle ; to ascertain : as, to adjust a claim,
tion was raised and determined in the former suit. a demand, a right.
If there be any uncertainty on this head in the rec-
Adjuster. He who determines the amount
ord,— as, for example, if it appears that several dis-
tinct matters may have been litigated, upon one or of a claim ; as, a claim against an insurance
company.
more of which the judgment may have passed, with-
out indicating which of them was litigated and upon Adjustment. Settlement of the relative
which the judgment was, rendered, — the whole 'sub- rights of parties, of a demand or cross-de-
ject-mat er ofthe action will be at large, and open to
new contention, unless this uncertainty be removed mands of any nature; in particular, the
by extrinsic evidence showing the precise point in- settlement of the claim of an insured party
volved and determined. To apply the judgment and
give effect to the adjudication actually made, when after a loss.*
the record leaves the matter in doubt, such evidence Unadjusted. Applied to a demand —
that the amount is uncertain, not agreed
is admissible.^
When the second suit involves other matter as well
as the mattei's in issue in the former action, the ADMEASUREMENT. Ascertainment ;
former judgment operates as an estoppel as to those upon.5
things which were in issue there, and upon the deter- apportionment.
A writ which lay against one who usurped more
mination of which the first verdict was rendered.
than his share; as, of pasture, dower or other right."
Extrinsic evidence, when not inconsistent with the
ADMINICULAR.' Supporting; aiding;
record and not impugning its verity, is admissible to
show that a former action involved matters in issue strengthening.
in the suit on trial, and were necessarily determined Describes testimony adduced to explain or complete
by the first verdict.^ other testimony.'
ADMINISTER. 1. To dispense, supply,
If a former adjudication is not pleaded as an es-
toppel evidence may be received to show the truth.* furnish, give: as, to administer poison, or a
It cannot be said that a case is not an authority on
one point because, although that point was properly stupefying mixture.
Not simply to prescribe or give a drug, but to di-
presented and decided, something else was found in the
rect and cause it to be taken."
end which disposed of the whole matter.' See Adjo- That offense is not to be confined to the manual ad-
DiOATtjs, Res, etc.
ministering ofpoison. So construed, the law would
ADJUDICATUS. L. Decided, settled, be substantially without effect, and would not reach
adjudged, adjudicated, q. v. the large class of offenders at whpm it is aimed.
Res adjudicata, or res judicata. A ' ' Administer " has a far more extended meaning — to
furnish or cause to be furnished and taken, to give or
thing adjudicated ; a case decided ; a matter
settled. Plural, res adjudicatce or judioatce. cause to be taken, by any mode.'"
Etymologioally, applicable to anything that can be
1 Cromwell v. Coimty of Sac, 94 U. S. 351-58 (1876), done by the hand to or for another. Neither fraud
cases. Field, J.; ib. 364-66, cases; Lumber Company r.
Buchtel, 101 id. 639 (1879); Litchfield v. Goodenow, 183 1 Atchison, &o. R. Co. v. Commissioners, IS Kan.
id. 660-51 (1887): 1 Greenl. Ev. § 623; Qflmer v. Morris, 135 (1873).
30 F. E. 469 (1887), oases. a See 11 Pet. lOO; 3 Sumn. 436; 16 F. R. 800; 88 Minn. 179,
'Eussell u Place, 94 U. S. 608 (1876), cases. Field, J. ; 180; 76 Mo. 38; 86 N. C. 466; 43 N. J. L. 117; 18 Johns.
Corcoran v. Chesapeake, &o. Canal Co., ib. 745 (1876). 483; 19S. C. 166.
See also Foye v. Patch, 133 Mass. 109-11 (1883), cases; ' L. ad-justus, according to right.
MoCalley v. Robinson, 70 Ala. 433 (1881); Moore v. City ' See 3 Kent, 340, 335; 2 Phillips, Ins. §§ 1814-16.
of Albany, 98 N. Y. 410 (1885); Withers v. Sims, 80 Va. » Richardson v. Woodbury, 43 Me. 214 (1867).
651 (1885); Bennitt v. Star Mining Co., 119 111. 14-15 « 3 Bl. Com. 183, 238; 3 Kent, 418.
' L. adminiculum, a prop.
' WUson's Executor v. Been, 131 U. S. 536, 533 (1887). » See 1 Greenl. Ev. § 606.
4 Meiss V. (Jill, 44 Ohio St. 3B8-60 (1886), cases. » [Robbins v. State, 8 Ohio St. 165 (1857).
'Railroad Companies v. Schutte, 103 U. S. 143 (1880). i» [La Beau v. People, 34 N. Y. 233-33 (1866).
 ADMINISTER ADMINISTER

nor deception is a necessary ingredient in the act of of the goods which cannot be administered
administering poison. To force poison into the stom-
under the limited power already granted.^
ach of another; to compel another by threats of vio-
Administration cum testamento annexo.
lence to swallow poison; to furnish poison to anottier
for the purpose and with the intention that the person With thb will attached — to the letters.
shall commit suicide therewith, and wliich poison is The Latin words are abbreviated c. t. a.
accordingly taken for that purpose; or to be present Obtains either when no executor is named or when
at the taking of poison by a suicide, participating Sn he who is named will not or cannot serve.
the taking by assistance, persuasion, or otherwise, The incumbent follows the statute of distributions,
although the party intends and agrees himself also to unless otherwise directed by the will.
commit suicide, — each is a mode of *' administering " The administrator, in such case, succeeds to all the
poison. The word does not then always imply serv- ordinary powers of the executor. When the will ex-
ice. ^ See Attempt; Noxious. pressly constitutes the executor a trustee for some
3. To dispense, direct the application of: special purpose, or vests in him a discretionary power
in reference to some matter outside of the ordinary
as, to administer the law, justice. 2 powers and duties of an executor, or charges him
Administrable. Capable of being ad- with some duty indicating a special confidence re-
ministered or rendered effective: as, an posed in him, such duty or power does not pass to an
administrable decree or law. ordinary administi^ator.^
3. To propound the form of ; to give, ten- Administration de bonis non. Concerning
der: as, to administer an oath. goods not — ah-eady disposed of.
The Latin words are abbreviated d. b. n. Occurs
4, To manage, to settle : as, to administer
where another administrator has died, or been dis-
the estate of an intestate or of a testator who
charged, leaving a part of the estate unsettled.
' has no executor. Administration de bonis non, cum testa-
Administered. Applied to legal ends or mento annexo. Upon goods not adminis-
uses; opposed to unadministered: as, the tered, and with the will annexed to the letters.
administered or unadministered effects of a The Latin words are abbreviated d. b. ?i., c. t. a. Oc-
decedent.3 curs where an executor h^s died, or been discharged,
Administrator, A man appointed by a leaving a part of the estate yet to be settled.
An administrator de bonis non cannot sue the for-
competent court to settle the affairs of a dece- mer administrator or his representative for a devas-
dent's estate. Administratrix. A woman tavit or for delinquencies in office, because the latter
' charged with that duty. is liable directly to creditors and the next of kin. The
The former word is generally used, in statutes and former has to do only with the goods of the intestate
decisions, to designate the officer. unadministered. If any such remain in the hands of
Administration. The service rendered, the dischai'ged administrator or his representative, in
or the charge or duty assumed, in the settle- specie, he may sue for them either directly or on the
bond. Eegularly, a decree against the administrator
ment of a decedent's estate.^ for an amount due, and an order for leave to prosecute
While administratoi- designates a representative his bond, are prerequisites to the maintenance of a
named by the court, in opposition to an executor, who suit thereon.s But otherwise, under statutes.^
is designated by will, administraiwn may mean the The preceding administration must have became
, management of an estate by either an executor or an vacant by resignation, removal, or death.'
administrator. See Repbesentative, (1).
Administration durante absentia. During
Maladministration; misadministra-
absence — when the absence of theproponent
tion. In law-books, in which they are often of a will or of the executor delays or imperils
interchanged, these words mean wrong ad-
settlement of the estate. *
ministratipn.5 Administration durante minori cetate.
Waste and embezzlement are examples.'
Administration ad colligendum. For col- During minority — while the executor named
is under lawful age ; at common law seven-
lecting— and preserving perishable goods. 6 teen.
Administration coeterorum. Of the rest —
' See 1 Will. Exec. 685.
'Blackburn v. State, 23 Ohio St. 163-84 (1872); 11 ' Pratt V. Stewart, 49 Conn. 339 (1881). Powers as to
Fla. 266; 4 Car. & F. 868. realty, 24 Am. Law Reg. 689-706 (1885), cases.
' See 3 Bl, Com. 72. ' Beall V. New Mexico, 16 Wall. 540-42 (1872), cases;
» See United States v. Walker,. 109 U. S. 263-64 (1883). United States v. Walker, 109 U. S. 260-61 (1883), cases.
< See 3 Bl. Com. 490; 92 N. Y. 74; 18 S. C. 351. * Sims V. Waters, 65 Ala'. 443 (1880). See also Conklin
'Mmkler v. State, 14 Neb. 183 (188.3); Martin v. El- V. -Egerton, 21 Wend. 432 (1839); Zebach v. Smith, 3
lerbe, 70 Ala. 339 (1881); 37 id: 399; 108 U. S. 199, 206. Bum. *69 (1810) ; 10 Ark. 465.
•2B1. Com. 505. » See 5 Eawle, 264; 16 Wall. 5M.
 ADMINISTER 33 ADMINISTEARE

His guardian, or other suitable person, may tlien administrator's bond, — an obligation entered
take out letters cum teatamento annexo. into by the nominee, with sufficient sureties,
AdministrMion pendente lite. While a
and approved by the court.'
suit continues — over an alleged will or the As against strangers letters of administration are
right of an appointment. not evidence of death, but merely of their own exist-
The incumbent's duty is limited to filing an inven- ence; i.e., that the proceedings have been regularly
tory, caring for the assets, collecting and paying had, and that the appointee is entitled to the office.
Being like an exemplification, they need not be
debts.'
Ancillary administration. Subordinate to proved.^ Compare Letters, 4; Testamentary.
An administrator represents the personal property
another administration, and for collecting of his decedent. He is a trustee thereof for creditors,
the eflEects of a non-resident. ^ distributees, and heirs; and is an officer of the court.
Any surplus beyond the claims of local creditors is He takes title from the time of his appointment. He
paid over to the domiciliary representative.' stands in privity with the deceased, succeeding to all his
Foreign administration. Granted at dece- rights, but not to his contract duties of a purely per-
sonal nature. He is liable to the amount of the assets.
dent's domicil in another State or country.
Ground for a new probate, ancillary in nature. But The nearest of kin is preferred for the offlce : descend-
ants to ancestors; males to females; and, where there
a few courts hold that new letters need not be issued.*
Letters confer no authority beyond the limits of the is no kin, a creditor or the estate. He is held to the
State granting them. The title acquired by the ad- care of a man of ordinary prudence,' and to the ut-
ministrator ofthe domicil is a fiduciary one, enforce- most good faith. Where there are two or more ap-
able in another State only by permission of its laws. pointees, each is the other's agent; and all sue and
are to be sued.
No State can be required to surrender the effects or
debts due to an intestate domiciled elsewhere to the The chief duties of an administrator are to bury
prejudice of its own citizens. Although the right of the deceased; give public notice of the grant of let-
the domiciliary administrator may be recognized ex ters; make an inventory; collect the assets: pay the
comitate, it is subject to the rights of creditors where debts. He may not buy any part of the estate for
the assets exist or the debtor resides.' himself; nor mix the estate's funds with his own; nor
Limited administration. Restricted in let the assets lie idle; nor use them to his own gain.
On the more important matters he should seek and
time, power, or as to effects.'' follow the direction of the court. For debts and im-
Public administration. Conducted by a provements he is to first exhaust the personalty ; after
special public ofiScer, or the guardians of the that he may convert realty. The law of the decedent's
domicil governs the disposal of his personalty, the
poor, where there is no relative entitled to
law of the place where situated his realty.*
apply for letters. See Adminibtiiare; Assets; Compromise; Exec-
Special administration. Limited, either tJTOR; Improvident; Incapable; Perishable; Priv-
in time or in power. ity; Settle, 3; Trust, 1; Voucher; Witness.
The instrument given by the oflBcer of pro- ADMINISTBABE. L. To wait upon,
bate to the person who proposes to adminis- serve ; to dispose of, administer.
ter upon the estate of an intestate is called Plene administravit. He has fully ad-
the letters of administration. This instru- ministered. Plene administravit prseter.
ment confers authority to take charge of and He has fully administered except — .
to settle the estate, collecting dues, paying The emphatic words of pleas by an exec-
debts, etc. ; and comprises : a copy of the utor or administrator : the former plea mean-
will, if there be a will and no executor ; a ing that he has lawfully disposed of all
copy of the decree of allowance of such will assets that have come into his hands; the
in probate ; a certificate of the name of the latter plea, that he has administered aU as-
appointee, his rights, duties, etc. The faith- sets except an amount which is not sufficient
ful'discharge of his duties is secured by an to satisfy the plaintiff's claim.

1 See 4 Watts, 36; 16 S. & E. 420. 1 See Beall v. New Mexico, 16 Wall. 543 (1872); Stov
' 21 Cent. Law J. 186-90 (1886), cases, aU V. Banks, 10 id. 583 (1870).
s See 11 Mass. 268; 138 id. 452; 44 111. 202; 32 Barb. 190; » Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. 243
88 Fa. 131. (1875); Devlin v. Commonwealth, 101 Pa. 276 (1882),
• See Wilkins v. Ellett, 108 U. S. 858 (1883); 2 Ala. 429;
18 B. Mon. 582; 18 Miss. 607; 18 Vt. 589. "See Moore v. Randolph, 70 Ala. 584 (1881); Bower-
• Moore, Adm'x, v. Jordan, 36 Kan. 276 (1887), cases, SOX'S Appeal, 100 Pa. 437 (1882).
Johnston, J.; Story, Confl. Laws, § 612; Wyman v. *8ee generally Williams, and Schouler, on Exec-
Halstead, 109 U. S. 654 (1884), cases. utors, &c. ; 2 Bl. Com. 489; 2 Kent, 409; 1 Pars. Contr
• See MoArthur v. Scott, 113 U. S. 899 (1883), cases.
(3) 127; 13 How. 46ft-«7.
 ADMIRALTY ADMIEALTY
34
Unless the defendant falsely pleads plene adminis-
courts have exclusive original cognizance " of all civil
travit he is not liable to a judgment beyond the as- causes of admiralty or maritime jurisdiction; saving
sets in his hands. The plea is not necessarily false
to suitors in all cases the right of a common-law rem-
because not sustained. The jury, if no devastavit is
averred, must find the amount of the assets, it any, edy, where the common law is competent to give it." '
The saving does not authorize a proceeding in rem to
before a judgment can be rendered.^
enforce
Common-law a maritime lien, in any common-law ~ court.
See AcciDKKE, Quando, etc.; Bona, De bonis; Det- remedies are not applicable to enforce
ASTAVIT.
such a lien, but are suits in personam, though such
ADMIRALTY. A court exercising jaris- suits, under special statutes, may be commenced by
diction over controversies arising out of the attachment of property. =
The act of February 26, 1845, limits the powers
navigation of public waters ; also, the system
granted by the act of 1789, as regards cases arising
of jurisprudence which pertains to such con- upon the " lakes, and navigable waters connecting said
troversies. lakes;" limits jurisdiction, to vessels of twenty tons
So named because, in England, originally held be- burden or upward, enrolled or licensed for the coast-
fore the lord high admiral.^ ing trade, or employed in commerce between places
" The judicial Power shall extend ... to all in different States;, and grants a jury trial if either
cases of Admiralty and maritime Jurisdiction." ^ party demands it. The jurisdiction is expressly inade
The principal. subjects of admiralty jurisdiction are concurrent with such remedies as may be given by
maritime contracts and maritime torts, including State laws. Otherwise, the jurisdiction granted by the
captures jure belli^ and seizures on water for munici- act of 1789 is exclusive in the district courts.'
pal and revenue forfeitures. (1) Contracts, claims, Jurisdiction, in "civil cases," extends to all con-
or service, purely maritime, and touching rights and tracts, claims, and services essentially maritime:
duties appertaining to commerce and navigation. (3) among which are bottomry bonds, contracts of af-
Torts and injuries of a civil nature committed on navi- freightment and contracts for convej'ance of passen-
gable rivers. Jurisdiction in the former case depends gers, pilotage on the high seas, wharfage, agreements
upon the nature of the contract, in the latter entirely of consort-ship, surveys of vessels, damages by the
upon the locality.' perils of the seas, the claims of material-men and
The jurisdiction is not limited to tide-waters, but others for the repair and outfit of ships belonging to
extends to all public navigable lakes and rivers, where foreign nations or to other States, and the wages of
commerce is carried on between different States, or mariners; and also to civil marine torts and injuries,
with a foreign nation — wherever ships float or navi- among which are assaults and other personal injuries^
gation successfully aids commerce.^ collisions, spoliation and damage, illegal seizures or
Courts of admiralty exist in all commercial coun- other depredations of property, illegal disposition or
tries, for the safety and convenience of commerce, the withholding possession from the owners of ships, con-
speedy decision of controversies where delay would troversies between part owners as to the employment
often be ruin, and to administer the laws of nations in of ships, municipal seizures of ships, cases of salvage
seasons of war, as to captures, prizes, etc. . . A and marine insurance.*
wide range of jurisdiction was necessary for the bene- Admiralty courts are international courts. As orig-
fit of commerce and navigation; these needed courts inally constituted they are the appropriate tribunals
acting more promptly than courts of common law and for controversies between foreigners.*
not entangled with the niceties and strictness of com- They hav^ jurisdiction of collisions on the high seas
mon-law pleadings and proceedings. . . . The acts between vessels owned by foreigners of different
of 1789 and 1845 save a concurrent remedy at common nationalities. •
law in any Federal or Stats' court, and secure a trial They may estimate damages for death by negli-
by jury as a matter of right in the admiralty courts. gence, when the court has jurisdiction of the vessel
Congress may modify the practice in any respect ajod of the subject-matter.'
it deems conducive to the administration of ijustice.^ In England there are two courts: the "instance"
By the act of September 24, 1789, § 9, the district and the " prize " court, qq. v. The same judge presides
in both. In the United States this double jiu'isdiction
' Smith V. Chapman, 93 U.' S. ^ (1876); 8 Wheat. 676; is vested in the district court.*
5 Cranch, 19; 15 Johns. 333; 89 N. C. 416; IS S. C. 352;
2 Kent, 417. 1 R. S., § 563, (8).
2 4B1. Com. 268. 2 The Belfast, 7 Wall. 644, 625 (1868); The Moses Tay-
3 Constitution, Art. m, sec. 2. lor; 4id. 428-31 (1866); The Hine, ib. 568 (1866).
' The Belfast, 7 Wall. 637 (1868), cases, Clifford, J. ; s R. S. § 566; The Hine, 4 Wall. 569(1866); The Eagle,
New England Ins. Co. v. Dunham, 11 id. 29, 31 (1870). 8 id. 20-26 (1868); 3 Kent, 365.
>The Genesee Chief v.- Fitzhugh, 12 How. 454-59 < Exp. Easton, 96 U. S. 68 (1877), Clifford, J. See also
(1851), Taney, C. J.; The Hine v. Trevor, 4 Wall. 562-70 De Lovio V. Bolt, 3 Gall. 398 (1815), Story, J.; 4 Woods,
(1866), cases; The Belfast, 7 id. 639-41 (1868) ; The Eagle, 367; 17 F. B. 387-88, cases.
8 id. 20-36 (1868); New England Ins. Co. v. Dunham, 11 ^Thomassen v. Whitwell, 9 Bened. 115 (1877); The
id. 23-39 (1870); Mxp. Easton, 95 U. S. 70 (1877). Belgenland, 114 U. S. 355, 361 (1886).
•The Genesee Chief, supra; N. E. Ins. Co. v. Dun- « The Luna, 13 Rep. 6 (E. D. Pa., 1881).
ham, supra; 3 Story, Const. § 1672; 1 Brown's Adm. ' Exp. Gordon, 104 U. S. 517-18 (1881), cases.
553; 30 F. B. 63. 9 1 Kent, 363.
 ADMISSION 85 ADMISSION

A "mixed case "in admiralty is a contract ■which Partial admission. In equity practice,
does not depend altogether upo^i locality as the test of delivered in terms of uncertainty, with ex-
jmisdiction; as, a contract for supplies, a charter- planation or qualification. Plenary admis-
party, and the like; but not a tort begun on land and
completed on navigable water,' nor a policy of insur- sion. Without any qualification.!
ance upon a ship and its cargo against marine perils.* Admissions are treated as " declarations against in-
The libelant propounds the substantive facts, prays terest "and, therefore, 'probably true. In the absence
for appropriate relief, and asks for process suited to of fraud they bind all joint parties and privies.*
The credibility of an admission is a question of
the action, which is in rem or in personam. The re-
spondent answers those facts by admitting, denying, or fact. The admission of a right is not the same as of a
declaring his ignorance thereof, and alleges the facts fact. All the words must be considered. May be by
of his defense to the case made by the libel. The a document, conduct, predecessor in title, agept, at-
proofs must substantially agree with the allegations. torney, referee, joint party, trustee, officer, principal,
There are no common-law rules of variance or depart- husband, wife.^
Where the act of the agent will bind the principal,
ure. The court grants relief on the case made out.'
The criminal jurisdiction of the Federal courts does his admission respecting the subject-matter will also
not extend to the Great I^akes and their connecting bind him if made at the same time, and constituting
waters; as, for example, the Detroit river. See Ska, part of the res gestae.*
But an act done by an agent cannot be varied,
High.* qualiHed, or explained, either by declarations, which
See further Accident; Canal; Collision, 2; CoN-
soKT, 2; Damages; Fidejdssok; Lakes; Libel, 4; amount to no more than a mere narrative of a past '
occurrence, or by an isolated conversation held, or an
Marine; MAHrriME; Monition; Navigable; PETrroRT;
isolated act done, at a later period. The reason is,
Res, 2; Sea; Stipulation, 1; Tide; Tort, 2.
the agent to do the act is not authorized to narrate
ADMISSION.' 1. Receiving: reception. what he had done or how he had done it, and his dec-
Whence admit, admissible, inadmissible, non- laration isno part of the res gestae.^
admission. For example, the declaration of the engineer of a
train which met with an accident, as to the speed at
Used of assenting to, allowing, or receiv-
which the train was running, made from ten to thirty
ing— a claim, a will to probate, any other minutes after the accident occurred, is not admissible
writing, or testimony. against the company in an action by a passenger to
Also applied to making a person a member recover damages for injuries sustained. " His declara-
of a privileged class or body, as of the legal tion, after the accident had become a completed fact
profession, or of a partnership or association. and when he was not performing the duties of en-
gineer, that the train, at the moment the plaintiff was
See Delectus.
injured, was being run at the rate of eighteen miles
2. Recognition as fact or truth ; acknowl- an hour, was not explanatory of anything in which he
edgment, concession; also, the expression in was engaged. It did not accompany the act from
which such assent is conveyed. which the injuries in question arose. It was, in its
In evidence, applied to civil transactions, and to essence, the mere narrative of a past occurrence, not
facts, in criminal cases, not involving criminal intent.* a part of the res gestae — simply an assertion or repre
In pleading, what is not denied is taken as admitted. sentation, in the course of a conversation, as to a mat-
ter not then pending, and in respect to which his
Direct or express admission. An ad- authority as engineer had been fully exerted. It is not
mission made openly and in direct terms. to be deemed part of the res gestae simply because of
Implied admission. Results from an act the brief period intervening between the accident and
done or undone ; as, from character assumed, the making of the declaration. The fact remains that
from conduct or silence. the occurrence had ended when the declaration in
question was made, and the engineer was not in the act
Incidental admission. Is made in an- of doing anything that could possibly affect it. It his
other connection, or involved in some other declaration had been made the next day after the ac-
fact admitted. cident, itwould scarcely be claimed that it was admis-
Judicial or solemn admission. So sible evidence against the company. And yet the
circumstance that it was ihade between ten and twenty
plainly made in pleadings filed, or in the
miiiutes — an appreciable period of time — after the
progress of a trial, as to dispense with the
stringency of some rule of practice. » See I Greenl. Ev. §§ 194-211 ; 1 Chitty, PI. 600.
' 1 Greenl. Ev. § 169.
' The Plymouth, 3 Wall. 34-35 (1865), cases. ' See Whart. Ev. Ch. XIU.
2 New England Ins. Co. v. Dunham, 11 Wall. 1 (1870). * Story, Agency, § 184. See also 1 Greenl. Ev. g 113.
"Dupontde Nemours v. Vance, 19 How. 171 (1656); 'Packet Company v. Clough, 20 Wall. 540 (1874),
The Clement, 2 Curtis, 366 (1855). Strong, J. ; American Life Ins. Co. v. Mahone, 21 id.
* Exp. Byers, 32 F. R. 404 (1887), Brown, J. 157(18741; Barreda v. Silsbee, 21 How. 164-65 (1858),
* L. ad-mittere, to send to: receive. cases; Whiteside v. United States, 93 V. S. 247 (1876);
* 1 Greenl. Ev. § 170. Xenia Nat. Bank v. Stewart, 114 id. 228 (1885), cases.
 ADMISSION 36 ADOPT

accident, cannot, upon prWoiple, make this 6ase an ADMIXTTJHE. See Accession; Con-
exception to the general rule. If the contrary view fusion, Of goods.
should be maintained^ it would follow that the declara-
tion of the engineer, if favorable to the company, ADMONITION.i A judicial reprimand
would have been admissible in its behalf as part of to an accused person about to be discharged.
the res gresice, without calling him as a witness — a Whence admonitory.
proposition that would find no support in the law of ADOPT.2 To choose: take, receive, ac-
evidence. The cases have gone far enough in the ad-
mission of the subsequent declarations of agents as cept. Whence adoption.
evidence. against their principals. These views are 1. To make as one's own what formerly
fully sustained by adjudications in the highest courts was not so; to appropriate: as, to adopt a
of the States." symbol or design for a trade-mark, q, v.
Contra. " As the declaration was made between
ten and thirty minutes after the accident, We may 2. To assent to what affects one's right ; to
well conclude that it was made in sight of the wrecked approve, ratify: as, to adopt the unauthor-
train, in the presence of the injured parties, and ized act of an agent ; to adopt a by-law, a
whilst surrounded by excited passengers. The en- charter, a constitution, an amendment.
gineer was the only person from whom the company To " adopt " a route for the transportation of the
could have learned of the exact speed of the train at mails is to take the steps necessary to cause the mail to
the time. . It would seem, therefore, that his dec- be tnansported over that route. ^
laration, asthat of its agent or servant, should have
3. To take a strange): into one's family as
been received." son and heir ; to accept the child of another
'* The modem doctrine has relaxed the ancient rule
that declarations, to be admissible as part of the res as one's own child and heir.<
gestae, must be strictly contemporaneous with the " Adopted child " and "adopted parent" are cor-
main transaction. It now allows evidence of them relative expressions. "Adopting parent" and (but
when they appear to have been made under the im- less frequently) " adopter " are also used.
mediate influence of the principal transaction, and Adoption, in this sense, is regulated by statute in'
are so connected with it as to characterize or explain each State. The child becomes in a legal sense the
it. . . . What time may elapse between the hap- child of the adopted parent. At the same time it
pening of the event . . and the time of the decla- remains the child of its natural parents, and is "not
ration, and the declaration be yet admissible, must de- deprived of the right of inheriting from them, unless
pend upon the character of the transaction itself. . . expressly so provided by statute.^
The admissibility of a declaration, in connection with In the Eoman law adoption was an act by which a
evidence of the principal fact, as stated by G-reenleaf , person undertook to rear the child of another and ap-
must be determined by the judge according to the point such child as his heir. Some special authority
degree of its relation to that fact, and in the exercise of law was necessary to constitute the relation. No
ot a sound discretion; it being extremely difficult, if right to adopt a child exists at common law. The
not impossible, to bring this class of cases within the methods known in modern law are by a decree of a
limits of a more particular description. The principal competent court and by indenture.^
points of attention are, he adds, whether the declara- Adoption was unknown to the common law, butwas
tion was contemporaneous with the main fact, and so recognized in the civil law from its earliest days. The
connected with it as to illustrate its character." i effect was to make a stranger the son and heir of the
See Acquiescence; Compromise; Confession, 2; adoptmg person. The stranger entered the family
Declaration, 1; Demurrer; Estoppel; EvinENCE; and came under the power of its head; he became as
Part, 1; Silence. a child, and his children as grandchildren, of the
adopter. Under the Spanish law as it existed while
Texas was part ot Mexico, no person having a legit-
' Vicksburg & Meridian E. Co. v. O'Brien, 119 U. S. imate child living could adopt a stranger as co-heir
99, lOM (Nov. 1, 1886), oases, Harlan, J.; Bradley, with his child. The statute law of that State has im-
Woods, Matthews, and Gray, JJ., concurring; Waite, ported the civil law, modified in important respects.
C. J., Field, Miller, and Blatchford, JJ., dissenting,— It gives the adopted party the position of a child so
opinion, pp. 107-9, by Field, J., citing, as in point, the
declaration of the engineer and the ruling in Han- Co., 144 Mass. 160 (1887) — declaration by conductor of
over R. Co. V. Coyle, 55 Pa 396, 402 (1867). And see a street car.
Northern Pacific E. Co. v. Paine, 119 U. S. 560 (1877); 1 L. ad-monere, to advise.
N. J. Steamboat Co. v. Brockett, 121 id. 649 (1887). 2 L. adoptare, to choose.
" The true rule is correctly stated by Greenleaf, with 3 Ehodes v. United States, 1 Dev. 47 (1856).
its limitations." Darling u. Oswego Falls Manuf. Co., <See Vidal v. Commagere, 13 La. An. 157 (1858):
30 Hun, 279, 280-83 (1883), cases. See further, as to Webster.
res gestae. Little Eock, «fec. B. Co. v. Leverett, 48 Ark. ^ Wagner v. Varner, 50 Iowa, 531 (1879). See, as to
338-43 (1886), cases — declaration by injured brake- inheriting lands in another State or country, Ross v.
man; Keyser v. Chicago, &c. E. Co., Sup. Ct. Mich. Eoss, 129 Mass. 245-68 (1880), cases.
(1887), cases — declaration by an engineer: 36 Alb. 'Ballard v. Ward, 87 Pa. 361 (1879); Shafer v. Eneu,
Law J. 202, 203, cases; Williamson v. Cambridge E. 54 id. 306 (1867), Strong, J. ; 8 W. N. C. 14; 10 id. 80.
 87
ADS ADVANCE

far as to make Win an heir, but does not make him a To sustain the qharge there must be proof of actual
member of the adopter's family. It allows him to in- mari'iage. Reputation and cohabitation ({?. v.) are
herit, to an extent, along with legitimate children." not enough; there must be strict proof of the fact."
ADS. See Versus. In allegations for divorce, although presumptive
evidence alone is sufficient to establish the fact of
ADXJLT.2 A person twenty-one or more adulterous intercourse, the circumstances must lead
years of age. to it not only by fair inference but as a necessary con-
Where an assault becomes " aggravated, when clusion; appearances equally capable of two interpre-
committed by an adult male on a female or a child, or tations, one of them innocent, will not justify the
by an adult female on a child," " adult " means a per- presumption of guilt. Evidence simply showing full
son who has attained the age of twenty-one. ^ and frequent opportunity for illicit intercourse is not
Some processes may be served upon an adult mem- alone sufiScient.^
ber of a man's family. SeeAoE; Infant; Nkgligence. " Living in adultery " means living in the practice of
ADULTERATE. To mix with food, adultery. 2 It is- not necessary that the parties live to-
drink, or drugs, intended for sale, other mat- gether in the same house continually, as man and wife.
An habitual illicit intercourse between them, though
ter inferior in quality, and, perhaps, delete-
rious in character. living apart, constitutes the offense.*
Adulterine. Children begotten in adultery.
In some States no recovery can be had for a sale of
See Bigauy; Condone; Conversation, 1; Divorce;
adulterated liquors. Polygamy.
Watered milk may not be " adulterated " milk ua-
less expressly declared so by statute.* See Oleomar- ADVANCE.5 1. To move forwai-d on a
GABiN£; Police, 2; Seal, 5. list or calendar of causes, for early consider-
ADULTERY.* Criminal intercourse be- ation :as, to advance a cause — whence ad-
tween a married person and one of the oppo- vanced cause.
site sex whether married or single. * 3. To supply beforehand; to loan before
Sexual connection between a married work is done or goods made : as, to advance
woman and an unmarried man or a married materials or moneys.^
man other than her own husband.' An advance of money on a contract is a
At common law adultery cannot be committed
payment made before an equivalent is re-
with a single woman. The child of such is fiiius nul-
lius, possesses no inheritable blood, and cannot there- In maritime insurance, has no fixed meaning; com-
fore be imposed as a legitimate heir upon a husband,
monly refers to advances to a crew or on account of
for the mother has no husband, and cannot conse- ceived.''may include money expended by a fislu.''g
freight;
quently occasion an adulteration of issue. The hei-
nousness of the offense, by that law, consists in expos- vessel for bait. 8
ing an innocent husband to the maintenance of another In a will, " advanced " and " loaned " may be inter-
man's child and to having it succeed to his estate. changed.*
For the offense there lay, not an indictment, but a In a will, may not be restricted to " advancement "
within the meaning of a statute, but may include any
civil action for damages for the private wrong. ^ benefit conferred which the testator might have con-
By the civil law adultery could only be committed
by the unlawful sexual intercoiu-se of a man with a sidered an appropriation of his estate."**
married woman. In the English ecclesiastical courts In its strict legal sense, " advances " does not mean
the offense is (or was) established by showing that the gifts — advancements, but a sort of loan; and, in its
husband has had illicit intercourse with a married or ordinary sense, includes both loans and gifts — loans
an unmarried female. ° more readily, perhaps, than gifts."
also State v. Fellows, 60 Wis. 65 (1880); 1 Crlm. Law
•Eckford v. Knox, 67 Tex. 804 (1886), cases, Willie, Mag. 579-82 (1880), cases; 1 Law Quar. Rev. 471-74 (1885).
C. J. See also Barnhizel v. Ferrell, 47 Ind. 338 (1874); " Miner v. People, 58 111. 00 (1871); 16 id. 85; Montana
14 Am. Law Reg. 683-84 (1875), cases; 1 South. Law V. Whitcomb, 1 Monta. 362 (1871).
Eev.TO-85 (18(5), cases; 3 Cent. Law J. 397 (1876). ' Pollock V. PoUock, 71 N. Y. 141^3, 144-48 (1877),
2 L. adultuSf grown up. cases; Loveden v. Loveden, 2 Hagg. 1 (1810); 1 Whart.
s George v. State, 11 Tex. Ap. 95 (1881). Compare Ev. § 225.
Bell V. State, id. (1885): 21 Cent. Law J. 321, cases. s Goodwin V. Owen, 55 Ind. 249 (1876).
• People V. Tauerback, 5 Park. Cr. 311 (1864) ; 132 Mass. * Smith V. State, 39 Ala. 555 (1865); 14 id. 609.
11-14; 2 Q. B. D. 530. See generally " Adulteration of »F. avancer, to go forward: avant, before.
Food," 22 Am. Law Eev. 95-106 (1888), cases. « Powder Company ■». Buckhardt, 97 U. S. 117 (1877),
• L. adulterare^ to make impure, corrupt. Hunt, J.
• Miner v. People, 58 III. 60 (1871). ' Gibbons v. United States, 1 Dev. 51, § 145.
' Hood V. State, 56 Ind. 271-74 (1877); 27 Minn. 300. 8Bumham v. Boston Mar. Ins. Co., 189 Mass. 39C
'State V. Lash, 16 N. J. L. 384-90 (1833); State v.
Wallace, 9 N. H. 517 (1838); Matchin v. Matchln, 6 Pa. (1835).
» Wright's Appeal, 89 Pa. 70 (1879).
336-37 (1847). See Leviticus, xx, 10; Deut. xxii, 22-28. "« Barker v. Comins, 110 Mass. 488 (1878).
» Commonwealth v. Call, 21 Pick. 511-13 (1839). See "" Nolan's Executors u. Bolton, 25 Qa. 355 (1858).
 ADVANCE 38
ADVISE

A mortgage for " future advances " is valid at com-

mon law and throughout the United States, except 3. A partnership for a single transacfion.
where forbidden by local law.> See Guaranty, 2. 3. Goods sent abroad to be disposed of for
the benefit of the owner.
Advancement. Giving, by anticipation,
the whole or a part of what it is supposed a Also called a marine adventure ; and evi-
child will be entitled to on the death of the denced by a hill of adventure.
In marine Insurance, synonymous with "perils."
giTer.2 Describes the enterprise or voyage insured against.'
A pure and irrevocable gift made by a par- ADVERSARY. See Adverse, 2.
ent to a child in anticipation of such child's ADVERSE.^ 1. Acting against or in a
future share of the parent's estate.' contrary direction; opposed to; conflicting
A giving by a parent to a child or heir, by
with, contrary to, the interest of another.
way of anticipation, of the whole or a part In some senses, opposed to amicable.
of what it is 'supposed the donee will be en- As, an adverse — claim, conveyance, em-
titled to on the death of the party making it.* ployment, enjoyment, interest, judgment,
" Advancements " means money or property given
by a father to his children as a portion of his estate, party, possession, proceeding, service, suit,
and to be taken into account in the final partition or
title, verdict, use, qq. v.
distribution thereof. "Advances" has a broader sig- 2. Biased, hostile: as, an adverse witness,
nification; itmay characterize a loan or a gift, or Adversary.3 Having an opposite party ;
money advanced, to be repaid conditionally.* adverse ; not amicable.
There is no intention to have a " gift " chargeable
on the child's share of the estate. In " debt " the rela-
As, an adversary — action, judgment, pro-
ceeding.
tion of debtor and creditor still exists.^
If, after an advancement, a will be made, the inten- ADVERSUS. See A, 3; Versus.
tion of the testator with respect thereto is a matter of ADVERTISEMENT.* Information
fact determinable from the will and extrinsic testi-
given by hand-bill or newspaper. See Let-
mony.^ ter, 8; Reward, 1.
Proof that gifts were made is not suiflcient: it must
Ofllcial advertisement. Such as is
appear that they were intended as advancements. ^
Advancement is always a question of intention ; and made by some public authority and in pur-
this must be proven to have existed at the time of suance of law.
the transaction. Thus, declarations of a parent .that Advertisement in a newspaper, under direction of
money, for v^hich he held a note, was an advancement law, is equivalent to notice; as, of a proceeding in
will establish it as such. The declarations must be of
coiu-t, of the dissolution of a partnership. See Pub-
the res gestce, accompanying the act.* See Hotchpot. lication, 1.
ADVANTAGE. See Benefit; Commo- The exclusive right to employ a particular method
ddm; Interest, 1. of advertising, as by a card displaying paints of vari-
ADVENTURE.io 1. An enterprise of ous colors, is not the subject of a copyright.*
hazard. ADVICE. Counsel, opinion ; information
given, or, perhaps, consultation had, as to
1 Lawrence v. Tucker, 33 How. 27 (1859), cases; Jones
V. Guaranty, &c. Co., 101 U. S. 636 (1879); Nat. Bank of action or conduct. Compare Advise ; Inops,
Genesee v. Whitney, 103 id. 99 (1880). Gonsilii. See Influence.
" [Osgood V. Breed's Heirs, 17 Mass. 358 (1881), Par- As per advice. On a bill of exchange,
ker, C. J. deprives the drawee of authority to pay the
s Yundt's Appeal, 13 Pa. 580 (1850); 89 id. 341. bill until in receipt of the letter of ad-
* Wallace v. Eeddick, 119 lU. 166 (1886), Scott, C. J. ;
Grattan v. Grattan, 18 id. 170 (1856), cases, Skinner, J. ; vice: the drawer's letter containing informa-
Kintz V. Friday, 4 Dem., N. Y., 548-4.3 (1886), cases. tion as to paying the bill.<> See under Let-
» Chase v. Ewing, 51 Barb. 612 (1868). ter, 3.
•Weatherhead i-. Field, 26 Vt. 668 (1S54). ADVISE. Where a statute authorizes a
' Wright's Appeal, 89 Pa. 70 (1879).
« Comer v. Comer, 119 111. 180 (1886). trial judge to "advise " the jury to acquit an
" Merkel's Appeal, 89 Pa. 343 (1879) ; HoUiday v. Wing- accused person, a request by counsel that the
fleld, 69 Ga. 208 (1877) ; Dillman v. Cox, 23 Ind. 442 (1864) ;
Fellows V. Little, 46 Vt. 36 (1865); Clark v. Wilson, 27 1 Moores v. Louisville Underwritera, 14 F. E. 233
Md. 700 (1867); Eshleman's Estate, 74 Pa. 47 (1873); (188 J), Hammond, J.
Dunham v. Averill, 45 Conn. 87 (1877); Eickenbacker v. '^ L. adversus, opposed to.
8 A^d'versary.
Zimmerman, 10 S. C. 115-16 (1877), cases; 67 Law
Times, 261. < Advertise' ; adver'tisement or -tise'ment.
^"W. aventure, chance: L. adventurus^ about to hap- 'Ehret v. Pierce, 18 Blatch. 302(1880).
pen. Compare Misadventuhb. ' See Byles, Bills, 91.
 ADVOCATE 89 AFFIDAVIT

court "instruct" the jury to acquit should pany" must necessarily have control and manage-
ment of the road. ^
be denied.' Compare Advice; Instruct, 3.
Advisable. See Discretion, 2. AFFECT. Toact upon; to concern: as,
cases affecting public ministers.
Advisor. See Communication, Privi-
leged, 1; AXTOKNEY. Often used in the sense of acting injuri-
ously upon a person or thing ; as in a proviso
Advisory. Containing counsel or a sug-
that an act shall not affect any confirmed
gestion, yet not concluding or binding.
The verdict of a jury on an issue out of chancery is claim to lands.2
AFFECTION. See Consideration, 2.
advisory;* a judge's opinion on the facts in «- case
may be regarded as advisory; ^ a nomination to an AFFIDAVIT.^ A voluntary oath, before
office may be an advisory designation. some judge or oiBcer of a court, to evince
ADVOCATE.'! See Judge-Advocate. the truth of certain facts ; as, the facts upon
An assistant ; an associate in conducting a
lawsuit. which a motion is grounded.''
Afflant. One who makes an affidavit.
^ person who makes a profession of pre- An affidavit is simply a declaration, on
senting cases orally. oath, in writing, sworn to by the declarant
'• Of advocates, or (as we more generally call them) before a person who has authority to admin-
coimsel, there are two species or degrees: barristers
ister oaths.5
and sergeants." °
In the United States no distinction is made between It does not depend upon the fact whether it is " en-
an advocate and an attorney, q. v. titled "in any cause or in a particular way. Without
a caption it is an affidavit.''
ADVOWSON'.*' Taking into protection. It is not necessary that the party sign the state-
The right of presentation to a church or ec- ment, unless a statute expressly so require. It is the
clesiastical benefice. official certificate which gives authenticity to the
Advowsons are (were) appendant, or in gross; and
presentative, coUative, or donative.^ written
In common parlance,* any form of legal
oath."
^DLPICATA. See Solum, ^diflcata.
.ffiQUITAS. L. Equity. oath which
Hence, may bemaytaken.''
in a statute, mean simply an oral oath. ^
.Squitas sequitur legum. Equity fol- The officer must sign the jurat; otherwise the doc-
lows the law. innent is not an affidavit.''
The certificate is no part of the affidavit, but the
Where the law, or the commor^ law, is in- prima facie evidence that it is the affidavit of the
effectual, equity affords relief, following at person by whom it purports to have been made."
the same time the rules of law.8 See Equity. Counter afO-davit. An affidavit made
AEROLITE. See Accbetion. or filed in opposition to the averments con-
^S. L. Money. tained in another affidavit.
^s alienum. Another's money. Ma Supplemental a£B.davit. An affidavit
suum. One's own money. containing averments upon the same subject-
The principle of bankrupt and insolvent laws is
matter as another affidavit previously pre-
fairly expressed by the phrase "ces alienum" which, sented, and designed to remedy some defect
in Roman law, signified a debt. The property of a
debtor, to the extent of Ms indebtedness, belongs to in that other."
his creditors."
^STIMATIO. See Caput, ^stimatio. 1 Tompkins v. Little Hock, &c. R. Co., 15 P. E. 13
AFFAIRS. Things done or to be done ; (1883).
business interests. « Ryan v. Carter, 93 U. S. 83 (1876).
' L. affidavit, he has made oath: ad fldem dare, to
A word of large import. A receiver who has
the management of the "affairs of tt railroad com- pledge
• 3 Bl.faith Com.for.304; 3 Tex. Ap. 503.
' People V. Horn. 70 Cal. 18 (1886); Cal. Penal Code, » Harris v. Lester, 80 111. 311 (1875), Scott, C. J.
§ 1118. •Hagardine «. Van Horn, 72 Mo. 371 (1880). See 8
2 Watt 1'. Starke, 101 U. S. 252 (1879). Iowa, 3M; 16 N. J. L. 125.
' Baker v. WUliams, 12 Barb. 5-57, 530 (1850). See 77
« Nudd 1). Burrows, 91 U. S. 439 (1875)-.
* L, advocatuSf one called upon. N. C 331; 28 Wis. 463.
» 3 Bl. Com. 20. 8 Morris v. State, 2 Tex. Ap. 503 (1877) ; State v. Rich-
' Advow'zfln. L. advocatio, patronage. ardson, 34 Minn. 118 (188.5); 18 id. 90.
' 3 Bl. Com. 21-22; 21 E. L. & Eq. 417. » Hitsman v. Garrard, 16 N. J. L. 125(1837); Hagar-
^2 Bl. Com. 3S0; 3 id. 441; 1 Story, Eq. § 64; 10 Pet. dine V. Van Horn, 72 Mo. 371 (1880;.
210; 15 How. 299. i» See Callan v. Lukens, 89 Pa. 136 (1879); 1 T. & H.
> 3 Pars. Contr. 428.
 AFFILIATION 40 AFFIEM

Among the more common affidavits in use

tion, averment, condition, covenant, defense,
in civil practice are :
evidence, pleading, representation, statute,
Affidavit of cause of action, which avers warranty, words, qq. v.
that a just cause of action exists.
(2), n. The affirmative : the party who
Affidavit of claim, which verifies the state- maintains or supports. Opposed, the negative.
ments of facts upon which a claim or demand The burden of proof rests upon him who holds the
is made. affirmative of an issue.> See Proof, Burden of.

Affidavit of defense, which ■verifies the Affirmative pregnant. An affirmative

statements of facts upon which a defendant allegation implying a negative in favor of
the adverse party.
resists a demand made upon him. See De-
fense, 3,Affidavit, etc. Opposed, negative pregnant: a negative allegation
involving or admitting of an affirmative implication,
Affidavit of or to the merits (q. v.), which or, at least, an implication favorable to the adverse
is to the sufficiency of the facts whicli con- party. = See Neoative.
stitute adefense in a civil action, instead of AfiQrmatively. (1) In positive terms ; by
resistance upon technical grounds. positive testimony, and not by way of infer-
ence.
Affidavit to hold to bail, which is that tlie
cause of action, brought for a civil injury, is Error in judicial action, not being presumed, must
valid. ; be shown affirmatively.'
Affidavits serve to verify allegations of fact not ingly. (3) In favor of what is proposed ; approv-
already matters of record, and tliereby qualify them
for judicial action; also, to initiate remedies, giving A legislative committee is said to report a bill
to statements the impress of good faith and probable affirmatively, or negatively.
cause. They are no part of the record in a case unless 3. To make binding what before was not
specially made so.^ obligatory, but voidable; to confirm, to
Compare Complaint, 2; Deposition. See Apparere,
De non, etc. ; Caption, 2 ; Jurat ; Knowi.edoe, 1 ; Oath ; ratify, qq. v. Opposed, disaffirm. Whence
Becord. affirmance, disaffirmance.
AFFILIATIOIT. See Filiation. An infant, to avoid a deed, must. disaffirm within a
reasonable time after his majority is attained. While
ArFINITAS. L. Nearness; affinity. the decisions differ as to what constitutes a disaffirm-
AfiB.uitas afllnitatis. The tie between ance, the preponderance of authority is that mere
inertness or silence, continued for a period less than
' the respective kindred of a married couple.
Afflnes. Kelations by marriage. prescribed by the statute of limitations, unless ac-
AFFINITY. Relation by marriage. See companied byvoluntary affirmative acts manifesting
an intention to assent to the conveyance, will not bar
Affinitas.
his right to avoid the deed. He cannot disaffirm
The tie which arises from marriage be- while infancy continues.* See Disability; Rescis-
tween the husband and the blood relations of sion; Voidable.
the wife, and between the wife and the blood 3. To support or confirm : as, for a court
relations of the husband.^ Opposed, consan- of review to affirm the judgment or order of
guinity. a lower court. Opposed, reverse. Whence
There is no affinity between the blood relations of affirmance, affirmed. See Curia, Per curiam.
the husband and of the wife.' See Consanguinity; 4. To attest by a solemn declai-ation, made
Relation, 3.
in a judicial inquiry, to speak the truth.
AFFIRM.* 1. To aver a thing as estab- Whence affirmant, affirmation.
lished or certain, or as existing, or as prov- An affirmation, which is generally made by such
able as a fact. Whence affirmative, affirma- persons as interpret the words of Scripture "Swear
tion.
Afl&rmative (1), adj. Asserting as true ; 1 1 Greenl. Ev. § 74; 119 111. 357.
declaratory of what exists or is to be or to 2 Gould, Plead. 296; Steph. PI. 381.
s 101 U. S. 601.
be done; positive. Opposed, negative.
< Sims V. Everhardt, 102' U. S. 309, 312 (1880), cases;
As, affirmative or an affirmative — allega- Brazee v. Schofield, id. (1883); Dawson "u. Helmes, 30
Minn. 118 (1882), cases; Wilson v. Branch, 77 Va. 71-72
165 Pa. 31; 103 U. S. 832. (1888), cases; Catlin v. Haddox, 49 Conn. 492 (1882),
= 1 Bl. Com. 434. cases; Nathans v. Arkwright, 66 Ga. 186 (1880); Adams
s Paddock v. Wells, 2 Barb. Ch. 333 (1847); 1 Denio, ■0. Beall, Sup. Ct. Md. (1887), cases: 8 Atl. Rep. 664; 20
26, 187; 29 Me. 545. Am. Law Eeg. 713-15 (1887), cases; Bishop, Contr.
*F. afermer, to ftx: L. ad-firmus, steadfast. §§ 936-44, cases.
 AFFIEMANTI 41
AGE

not at all," etc., as proliibitory o£ an oath, does not, purchase price is to be understood as if it read
like an oath, involve an appeal to the Supreme Being. " upon " payment, i See Maturity, 2.
A common form is, '' You do solemnly, sincerely, After-acquired. Obtained after some
and truly declare and affirm, that you will state the
event: as, property acquired after a will was
truth," etc. Upon assent to this interrogation the
a£9rmant is bound as by oath, and liable to punish- made, or after an adjudication in bank-
ment as for perjury. See Oath ; Pekjtoy. ruptcy, or after a judgment is repovered.
APFTRMANTI. See Probare, Probatio. See Acquire.
AFFIX. See Fixture; Seal, 1. After-discovered. Came to light or
APFKAY.i The fighting of two or more was disclosed after an event or occurrence :
persons in some public place to the terror of as, after-discovered evidence, an after-dis-
his majesty's subjects. ^ covered principal. See Agent; Audita
When persons come together without a Querela; Discovery, 3.
premeditated design to disturb the peace, and AFTERNOOM". See Day.
suddenly break out into a quarrel among A complaint for not closing a saloon "at nine
themselves.3 o'clock " and keeping it open till " past eleven in the
afternoon " is not bad for failing to show that nine
More of a private nature than a " riot." ^ o'clock at night was meant."
If the fighting be in private it is an "assault." AGr. Against; agreeing.
Actual or attempted violence is essential ; the " terror "
is presumed. An abettor is a principal. ^ See Abet; AGAUfST. In opposition to; opposed;
AccmENT.
contrai-y to; adversely to. Compare Con-
AFFREIGHTMENT. See Freight. tra.
AFOKE. Before; formerly; previously. An enactment that neither party shall be allowed to
Aforesaid. Spoken of formerly. See testify "against" each other, as to any transaction with
the deceased person whose estate is interested in the
Said.
result, has been construed to allow the repi'esentative
Aforethought. Conceived beforehand. of the decedent to compel the opposite party to testify
See Malice.
AFRICAJST. See Citizen; Color, 1; for A theverdict
estate.^in disobedience of instructions upon a
Slavery. point of law may be said to be "against law." *
Against the form of the statute. In
AFTER. Further off, behind: subse-
an indictment alleges that a statute has
quent to a date or event ; exclusive of ; sub-
been broken. See further Form, 2, Of stat-
ject to. ute.
Where time is to be computed "after" a day that
day is excluded.* • Against the peace. Words in use to
In the devise to A, " after " providing for B — sub- charge a breach of the peace. See Peace, 1.
ject to, after taking out, deducting or appropriating.*
Does not necessarily refer to time; may refer to Against the will. Words used to charge
order in point of right or enjoyment. "After settling
vfolence. See Will, 1.
my estate" is equivalent to "subject to the settle- AGE. A period in life at which a person
ment." • may do an act which, before that time, he
"After the charges herein," and "after the pay-
ment of my debts," means subject to the charges, could not do; "of age."
subject to the payment of the debts. ^ See On. The period at which one attains full per-
A contract to pass a title "after" payment of the sonal rights and capacity.
The time of life when a particular power or
IF. affraier, to teiTify,— 4 Bl. Com. 145. "It af- capacity becomes vested; as, in the phrases
frighteth or maketh afraid," — 3 Coke, 158. L. L. ex age of consent, age of discretion, qq. v.^
frediare^ to break the peace: disturb, frighten, —
Full age. Twenty-one ; majority.
Skeat. L. frigus, shudder from fear, — Webster. Attained the day preceding the anniversary of
"4 Bl. Com. 145; Order of Friends v. Garrigus, 104
Ind. 139 (1884); 70 Ala. 28; 33 Ark. 178; Rose. Cr. Ev. birth. Considered as arbitrarily fixed, but very gen-
270; Arch. Cr. PI. 1709.
erally adopted.'
An infant is liable, as for deceit, for an injury re-
= People V. Judson, 11 Daly, 83 (1819), Daly, J.— Aster
Place Elot Case. 1 Hawley v. Kenoyer, 1 Wash. T. 611 (1879).
« Sheets v. Selden, 2 Wall. 190 (1864) ; 2 Hill, 355. ' People V. Husted, 52 Mich. 624 (1884).
« Hooper t). Hooper, 9 Cush. (1851); 9 Pet. 470. s Dudley v. Steele, 71 Ala. 426 (1882).
» Lamb v. Lamb, 11 Pick. »378 (1831), Shaw, C. J. ; • Declez v. Save, 71 Cal. 553 (1887); 40 id. 545; 4 Bosw.
Minot V. Amory, 2 Cush. 387 (184S).
'King V. King, 14 B. 1. 146 (1888); ib. 516. See also 202.
' [Abbott's Law Diet.
63 Wis. 301. 673, 588: 9 H. L. Cas. 1. • 1 Bl. Com. 463; 2 Kent, 233.
 AGENDO 4a
AGENT

ulting from hia f ra\idulent representation that be is action involves the same general power that he has
'f full ageiji See Acknowledomeht, 2; Mutual, 1. usually exercised, though applied to a new subject-
Lawful age. The period in life when a
matter, i
jersou may do a particular act, or serve in a The principal is responsible for the acts of his gen-
;iven relation. eral agent when acting within the general scope of
his authority, and the public cannot be supposed to be
Non-age. Under the age at which the cognizant of any private instructions; but where the
aw has conferred ability to perform an act ; agency is special and temporary, and the agent ex-
ninority. ceeds his employment, the principal is not bound.^
At common law a male at twelve may take the The doctrine of general agency does not apply to
lath of allegiance; at fourteen choose a guardian, non-trading partnerships: as to them there is no pre-
-nd, if his discretion be proved, make a will of person- sumption ofauthority to support the act of a partner. 3
.Ity; at seventeen be an executor; at twenty-one is Public agent. A person by whom a
.t his own disposal, may alien his property and make power of government is exercised.
,11 contracts. A female, by the common law, may, at Public agents represent the legislative, judicial, and
even, be -betrothed or given in marriage; at nine is executive departments of government. They have
ntitled to dower; at twelve is of years of maturity, such power only as has been specifically conferred
aay consent to marriage, and, if proved to Iiave sufifi-
;ient discretion, may bequeath her personalty; at upon them.*
Sub-agent. A person selected by an
ourteen is of years of legal discretion, and may
ihoose a guardian; at seventeen be an executrix; at agent to perform a part or all of the duties of
wenty-one dispose of herself and her lands.^ the employment.
A male f I'om eighteen to forty -five is liable to mili- An agent is answerable to his principal for the act
ary service; at twenty-five is ehgible as a Represent- of his sub-agent although the principal knows that the
ative, at thii'ty as a Senator, and at thirty-five as sub-agent has been employed.^
'resident. When an agent has power to employ a sub-agent
See Adult; Infant; Influence; Insanity; Sedco- the acts of the latter, or notice given him in th(:
'IOn; When.
transaction of, the business, have the same eflfeot as i
AGENDO. See Akeest, 2 (3). done or received by the principal.*
Universal agent. One who is appointed
AGENT.s A person employed by another
0 act for him. Opposed, principal. to do all the acts which the principal person-
Agency. The relation between two per- ally can do, and which he may lawfully dele- ,
lons as principal and agent. gate
Suchtheagency
power
may topotentially
another exist
to do.'^
; but it is difdcult
,The term agent includes many classes of persons to
to conceive of its practical existence, since it puts the
vhich distinctive appellations are given; as, a factor,
agent completely in the place of the principal.'
)roker, attorney, cashier, du-ector, auctioneer, clerk,
)artner, supercargo, consignee, ship's husband, master An infant, or /erne covert (her husband consenting),
(f a vessel, qq. v. may serve another as agent; but not so a person who
The relation is founded upon contract, but not for has an adverse interest or employment.^
he doing of an unlawful act or an act of a strictly
)ersonal nature.
1 Commercial' Bank of Erie v. Norton, 1 Hill, 504
General agent. An agent empowered to (1841); Merchants' Bank v. State Bank, 10 Wall. 650
.ransact all business of a particular kind. (1870); Mining Co. u. Anglo-Calif ornian Bank, 104 U. S.
193(1881).^
Special agent. An agent employed to do 2 Minn v. Commission Co., 15 Johns. 54 (1818); Scott
1 single act or for a special transaction. V. McGrath, 7 Barb. 55 (1849), cases; Adriatic Ins. Co.
A "special agency" exists when there is a V. TreadweU, 108 U. S 365-66 (1883); Bohai-t v. Obeme,
lelegation of authority to do a single act ; a Bickford Menier, Ct. Ap. N. Y.'
36 Kan.13,2891887):
(Deo. (1887);
26 Cent. Lawv. J. 236; ib. 239-41 (1888),
' general agency" when there is a delegation cases; 3 Kent, 6^0; Smith, Contr. 363; cases ante.
,0 do all acts connected with a particular s Pease v. Cole, 53 Conn. 60-65 (1885), cases. The
rade, business, or employment.* question was whether one member of a partnership
To constitute one a general agent it is not necessary for conducting a theater could bind his partner by- a
hat he should have done before an act the same in promissory note in the name of the firm, the copart-
pecie with that in question. 'It is enough if the trans- ner having no Imowledge of the transaction.
•> Whiteside v. United States, 93 U. S.257 (1876), cases-
> Eioe V. Boyer, 103 Ind. 473-80 (1886), cases. Anthony V. County of Jasper, 101 id. 699 (1879); Exp.
■' 1 Bl. Com. 463. Virginia, 100 id. 347 (1879) : Virginia v. Rives, ib. 313 (1879)!
2 L. agens, agentis^ doing, acting. ' Barnard v. Coffin, 141 Mass. 40 (1886), cases.
" Story, Agency, § 17; ib. §§ 137, 133; Keith v. Hersch- 'Hoover v. Wise, 91 U. S. 310 (1876), oases; Story
lerg Optical Co., 48 Ark. 146 (1886), cases, Smith, J. ; Agency, §§ 452, 464.
:1 Ind. 2BB; 35 Iowa, 281; 103 Mass. 235; 9 N. H.363; ' Story, Agency, § 21.
4 N. Y. 431; 16 id. 133, cases. swharton, Agency, § 14; Story, Agency, §,4.
 AGENT 43 AGENT

The act of an agent, done in the usual way in the He should name the principal as the contracting
line of his employment, binds the principal. ' His au- party in the body of a contract, and sign as agent.'
thority islimited to the usual and ordinary means of A note made by an agent with the principal un
accomplishing the business intrusted to him.^ named in the fjody, but signed " B, agent for A," or
Knowledge in the agent is knowledge in the prin- " B for A," is the note of A, ths principal. But m-
cipal. * serting " for," " in behalf of," or " as " the principal,
The rule that notice to the agent is notice to the and signing the name of the agent, does not make the
principal applies not only to knowledge acquired by contract the principal's.^
the agent in the particular transaction, but to knowl- In a bill payable to and indorsed by " B, agent,"
edge acquu'ed in a prior transaction and present to his the word " agent " is a designatio pei'sonce, and he
mind at the time he is acting as agent, provided it be may show by parol that he was merely an agent, as
of a character he may communicate to his principal the plaintiff knew.^
without breach of professional confidence. The gen- Only where the power as given is under seal need
eral rule, that the principal is bound by the knowledge the agent use the principal's name with a seal,* See
of his agent, is based on the principle of law that it is further Seal, 1.
the agent's duty to communicate his knowledge and Under a deed of trust a person may be the agent of
the presumption that he will perform that duty.* another to buy and sell, without exposing the donor's
Where the principal has employed the agent to do bounty to liability for the agent's former debts.' See
an act upon the existence of a fact peculiarly within further Tbdst, 1.
the latter's knowledge, and of the existence of which An agent who discloses the name of his principal
the execution of the power is a representation, a third is not liable on a contract, unless he agrees to be held.*
person, dealing with the agent in good faith, may rely The principal may sue on a contract made in the
upon such representation, and the principal be es- name of his agent.' But where a third party dis-
topped fi'om denying the truth of the representation.^ covers the undisclosed principal he may sue either
But where communication by the agent would pre- the principal or the agent.*
vent him from consummating his own fraudulent pur- Where the principal and the agent are liable on a
pose, the knowledge he possesses will not be imputed contract, each continues liable until satisfaction is
to the principal. In this sense, for example, a diiector
of a corporation, acting wholly for himself, cannot be An agency is dissolved (1) by revocation — (a) by the
made.'
treated as the agent of the corporation. Uncommuni- principal, except when the power is *' coupled with an
cated notice received by the agent in prosecuting his interest " or given for value, is part of a security, or
private business will not bind the employer.* a severable portion is executed and there exists no
An agent's act affecting negotiable paper requires indemnity forthe rest. Revocation takes effect from
the time of notice. (6) The agent may renounce at
specific authority.'
He is to exercise the highest good faith toward his any time, paying damages, if any, as to the part un-
principal. executed. (8)By termination — by insanity or death,
He may make no profit secretly out of funds be- except when coupled with an interest; not, neces-
longing to the principal.** See Trust, 1. sarily, by marriage or bankruptcy. (.3) By extinction
The principal is answerable for the agent's act of of the subject-matter or of the principal's power over
negligence (g. v.) done in the course of the employ- the same. (4) By operation of law, in various ways.
ment." By complete
(5) See of the trust. '*
execution 2;
further Aomission, Attoknet; Collection;
'Ean-eda v. Silsbee, 31 How. 164-65 (1838), cases;
Hoffman v. Hancock Mut. Life Ins. Co., 92 U. S. 104
(1858), cases; The Clarita, 23 Wall. 12(1874); The Ca-
(1875), cases; Whiteside v. United States, 93 id. 257 hill, 9 Bened. 353-54 (1878), cases.
( 1876), cases. 1 Gottfried v. Miller, 104 U. S. 527 (1881), cases.
a Williams u Getty, 31 Pa. 481 (1858). 2 Barlow v. Congregational Society, 8 Allen, 460,
3 Hoover v. Wise, 91 U. S. 310 (1875), cases; Smith v. 463-64 (1864), cases. Gray, J.
s Bartlett v. Hawley, 128 Mass. 92 (1876), Gray, C. J. ;
Ayer, 101 id. 320(1879); Vicksburg, &c. R. Co. v. O'Brien,
119 id. 105 (1886).
29 Minn. 121 ; 38 Ohio St. 444-45.
■• The Distilled Spirits, 11 Wall. 360-68 (1870), cases, < Stanton v. Camp, 4 Barb. 276 (1848); 'Whitney v.
Bradley, J.
Wyman, 101 U. S. 392 (1879).
s Bank of Batavia v. New York, &c. B. Co., Ct. Ap. » Nichols V. Eaton, 91 U. S. 725-30 (1875), cases.
N. Y. (1887): 7 Cent. Rep. 822. Cases pro and con, 26 "Whitney v. Wyman, 101 U. S. 392, 396 (1879); Cragin
Am. Law Reg. 576-81 (1887), cases. V. Lovell, 109 id. 194, 198 (1883), cases.
» Innerarity v. Merchants' Nat Bank, 139 Mass. 333-35 ' New Jersey Steam Nav. Co. v. Merchants' Bank, 6
(1S85), cases; Wilson v. Second Nat. Bank of Pitts- How. 381 (1848); Ford v. Williams, 21 id. 289 (1858).
burgh, Sup. Ct. Pa. (1886): 6 Cent. Rep. 756; Frenkel "Wharton, Agency, §464, cases; Merrill v. Kenyon,
V. Hudson, 82 Ala. 162-63 (1886), cases. 4S Conn. 317 (1880), cases; Beymer v. Bonsall, 79 Pa.
' 1 Pars. Contr. 62; The Floyd Acceptances, 7 Wall.
300(1875); N. Y., &c. Steamship Co. v. Harbinson, 15
676 (1878); Anthony v. County of Jasper, 101 U. S. 699
F. R. 683 (1883), cases; ib. 694-96, cases.
(1879). ".Story, Agency, § 295; Wharton, Agency, § 473;
8 Northern Pacific R. Co. v. Kindred, 3 McCrary, 631
Beymer v. Bonsall, 79 Pa. 300 (1875).
(1881), cases. i» Story, Agency, §§ 462-500; Frink v. Roe, 70 C!al. 309
' Philadelphia,. &c. R. Co. v. Quigley, 21 How. 209-10
; 2 Kent, 643; 4 Pet. 344.
AGGRAVATION 44 AGREE

LEGATUs; Descriptio; Director; Disability; Fa- or contingently affect interests which a receiver rep-
ke, Qui facit; Interest, 2 (2), Coupled, etc. ; Liveey- resents does not give him a right of appeal. ^
n; Managing; Partnership; Principal, 4; Proxy; In the New York act of 1858, the party aggrieved by
.tification; Ees, 2, Gestae; Servant, 3; Tort. 2. proceedings relative to any assessment for local im-
AGGRAVATION.! Whatever adds to provements in the city of New York may apply to
vacate the same. This refers to the person injured by
e weight of an act — in its consequences or
the proceedings. The injury must be a direct, not a
lilt. Opposed, mitigation.
remote or consequential, result. ^
Something done by the defendant, on
AGIST.3 Originally, to feed cattle in the
e occasion of committing the trespass,
hicli to some extent is of a different king's forest : a service performed for a con-
sideration byofBcers called "agisters" or
gal character from the principal act com-
ained of. "gist-takers." Now, to pasture animals for

As, where a plaintiff declares in trespass for enter-

Agistmeixt. Where a man takes in a
^ his dwelling-house, and alleges in addition that pay. or other cattle to graze arid depasture
e defendant also destroyed goods in the house and horse
saulted the domestics. ^ See Damages, Special.
Aggravated. Increased, in severity or in his grounds.''
Agister. One who takes the cattle of an-
lormity: as, aggravated assault and bat- other into his own ground to be fed for a
ry, which is a more seriqus offense than consideration to be paid by the owner.
mple assault and battery, q. v. He has a lien for the keep; and may maintain tres-
AGGREGATE. See Corporation, Ag- pass or trover against a stranger for taking the ani-
•egate. mals away. ^
While he does not insure the safety of an animal
AGGREGATIO MENTIirM. L. Col- he is responsible for ordinary negligence in the care
ction of purjioses; collected intentions; he takes of it."
He, and not the owner, is liable for injuries done by
jreement.
Essential to a contract; where there is a misunder- beasts prone to commit trespasses.^
AGNATI. See Natus, Agnati.
mding, wanting.^
Not the origin of "agreemejit." That derivation AGNOSTIC. See Oath.
IS suggested by the harmony of intention which is AGREE.8 To concur in thought ; to unite
sential.'' See Agreement; Assent. in mental action, be of oije mind, assent.
AGGRIEVED.' Damaged, injured, ex-
)sed to loss: as, that the party aggrieved Opposed, disagree.
May be read "grant;" as where a grantor agrees
ay appeal or have a writ of error. that no building shall be erected on an adjoining lot."
Arbitrators, judges, and jurors, are said to agree,
The " party aggrieved " is he against whom
1 appealable order or judgment has been and to disagree.
Agreed balance. See Balance.
itered;* a party prejudiced by the judg-
Agreed statement of facts. Facts sub-
ent;'i one against whom error has been
mitted as true to a court, for an opinion upon
immitted by a decree or judgment entered ; s
the law in the case. See Case, 3, Stated.
le whose pecuniary interest is directly af-
Agreement. Union of minds to a thing ;
cted by the order or decree — whose right
concurrence of intention; mutual assent.
■ property may be established or divested More specifically, a mutual agreement, a
7 the order or decree.'
Before a person can be said to be " aggrieve(i," so contract.
Consists of two or more persons being of
to'be entiUe4 to an appeal within the meaning of
396 of the code of New York, the adjudication must
ve binding force against his rights, his person, or 1 Boss V. Wigg, 100 N. Y. 246 (1885), Earlj J.
3 property. The fact that an order may remotely ' Matter of Walter, 75 N, Y. 357 (1878); 91 id. 8; 100
id. 246; 141 Mass. 208; 143 id. 235.
' L. aggravare^ to add to a load: gravis, heavy, ^F. giste. abode: L. jacere, to lie.
i Hathaway v. Eice, 19 Vt. 107 (1846), Royce, C. J. «2B1. Com. 452.
e also Steph. Plead. 267; 3 Am. Jur. 287-^13. ' Bass V. Pierce, 16 Johns. 596 (1863).
lUtley V. Donaldson, 91 U. S. 49 (1876). ■* Story, Bailm. § 443, cases.
1 Pars. Contr. 6. 'Bossell V. Cottom, 81 Pa. 526-29 (1858), cases- Red-
'F. agrever, to overwhelm: L. axi-gravis. dick V. Newburn, 76 Mo. 424 (1882); Kemp v. Phillips,
' Ely V. Frisbee, 17 Cal. 261 (1861). 55 Vt. 69 (1883). Case of agistment of 1,200 head of
People V. PfeitEer, 69 Cal. 91 (1881); 8 id. 315 cattle. Teal v. Bilby, 123 U. S. 573 (1887).
' State ex rel. v. Boyle, 6 Mo. 59 (1878). 8 F. ag/eer, to receive with favor.
Dietz V. Dietz, 38 N. J. E. 485 (1884). » Hogan V. Barry, 143 Mass. 533 (1887).
 45
AGRICULTURE AID

the same mind, intention, or meaning, con- act of preparing the soil, sowing and planting
cerning the matter agreed upon.i seeds, dressing the plants, and removing the
The expression by two or more persons of crops. In this sense the word includes gar-
a common intention to affect their legal re- dening or horticulture, and the raising or
lations.2 See Understanding. feeding of cattle and other stock. In a more
In the Statute of Frauds is not understood in the
common and appropriate sense — that species
loose sense of a promise or undertaking, but in its of cultivation which is intended to raise grain
more proper and legal sense of a mutual contract on
consideration between two or more parties.^
and other field crops for man and beast ;
In a popular sense frequently declares the engage- " husbandry," as defined by "Webster.'
ment of one person only. When a man "agrees" A person who cultivates a one-acre lot and is also a
to pay money or to do some other act, the word is butcher and a day laborer is not " engaged in agri-
synonymous with ''promise," "engage."* culture," within the meaning of an exemption law.*
In popular signification means no more than con- A person is "actually engaged in the science of
cord, the imion of two or more minds, concurrence of agriculture " when he derives the support of himself
views and intention. Every thing done or omitted by and family, in whole or in part, from the tillage and
the compact of two or more minds is universally and cultivation of fields. He must cultivate something
familiai'ly called an agreement. Whether a consider- more than a garden, though it may be less than a field.
ation exists is a distinct idea which does not enter into If the area cultivated can be called a field, the em-
the popular notion. In most instances any considera- ployment is"agriculture," as well in contemplation
tion, except the voluntary impulse of minds, cannot of law as by the etymology of the word. This condi-
be ascribed to the numberless agreements that are tion being fulfilled, the uniting of other business not
made daily. . In its broad sense, synonymous inconsistent with the pursuit of agriculture will not
with the concord of two or more minds, or mutual as- take away the protection of a law exempting one horse,
sent. If there is nothing to limit the meaning, harness, and a plow from levy and sale.''
regards promises only, not their consideration.* See Crop; CuLTrvATioN ; Horse ; Implements ; Tools.
In which ever sense understood in the Statute of AID.' 1. Help; assistance; support.
Frauds the requirement is that it be in writing — if
Aid and abet. In common parlance, as-
not to be performed within a year.^
The meaning of the contracting parties is their sistance, co-operation, encouragement.*
agreement.^ Assistance rendered by acts, words of en-
Also, the writing which preserves the evi- couragement, or support ; or presence, actual
dence of the reciprocal promises. or constructive, to render assistance should
Articles of agreement. The memorandum it become necessary.^ See Decoy.
of the terms of an agreement ; an agreement Aider and abettor. One who assists an-
in writing. other in the accomplishment of a common
Should state the names and residence of the par- design or purpose.
ties, the subject-matter, the promises to be performed, He must be aware of and consent to the design."
the date, and any other elements of the contract. Mere presence is not enough: something must be
See Aggregatio; Assent; Contract; Conventio; said or done sliowing consent to • the felonious pur-
Party, 2; Merger, 2; Performance; Eescission.
pose and contributing to its execution.'
AGRICULTURE. A person engaged Aiders and abettors cannot be punished under a
in agriculture is engaged in raising cereals statute which creates a felony, unless the statute ap-
plies to all who are guilty, and not alone to the person
and stock. "Agriculture," in its general actually committing the offense. Thus under a statute
sense, is the cultivation of the ground for
for confining in the penitentiary " any woman who
the purpose of procuring vegetables and shall endeavor to conceal the birth of her bastard
fruits for the use of man and beast ; or, the child," aiders and abettors cannot be punished." See
Conspiracy; Felony; Principal, 5; Liquor, ad fin.
1 Leake, Contr. 12. 1 Simons v. Lovell, 7 Heisk. 515 (1872), Sneed, J.
' [Anson, Contr. .3. " Springer i>. Lewis, 22 Pa. 193 (1833), Woodward, J. ;
s [Wain v. Warlters, 5 East, *17 (1804), EUenborough, 62 Me. 526; 64 Ga. 128.
C.J. ' F. aider: L. adjutare iad-jnrare), to help.
« Packard v. Richardson, 17 Mass. 131 (1821), Parker, 'United States v. Gooding, 12 Wheat. 476 (1827),
C.J. Story, J.
"Sage V. Wilcox, 6 Conn. 85-94 (1826), Hosmer, C. J. » Rainford v. State, BO Ala. 108 (1877), Stone, J.
See also Packard v. Richardson, 17 Mass. 131-34 (1821); » Adams V. State, 05 Ind. 674-T5 (1879), cases. Hawk, J. ;
Marcy v. Marcy, 9 Allen, 10-U (1864), Bigelow, C. J. ; United States v. Snyder, 14 F. R. 556 (1882): 1 Sup. E. S.
Woodworth v. State, 20 Tex. Ap. 3S2 (18S6); 31 F. R.
249. 358; 127 Mass. 17.
' Kemp V. Commonwealth, 80 Va. 450 (1885), cases.
' Marcy v. Marcy, 9 Allen, 10-11 (1864). 8 Frey v. Commonwealth, 83 Ky. 190 (1885). See gen-
'Whitney v. Wyman, 101 U. S. 396 (1879), Swayne, J. erally 18 Cent. Law J. 446 (1884) — Canad. Law Times.
 AID 46 ALCOHOL

Aid and comfort. In treason, any overt

An easement in the air coming over another's land
let which, if successful, would advance the cannot be acquired in the United States.'
nterests of a treasonable design, i Upon a conveyance, the right to air coming over
Actual assistance is not essential.' other land of the grantor is implied as an easement of
The subject of a foreign nation who furnished mu- necessity."
litions of war to the Confederates, or did an act The right to pure air is an incident to land. "While in
Thich would have rendered him liable to punishment cities the causes of pollution cannot be as easily tracefl
lor treason had he owed allegiance to the United as in sparsely inhabited places, yet, when the source
of a well-defined nuisance is definitely known, the
3tates, gave "aid and comfort" to the rebellion, courts will protect the rights of any person injured by
within the meaning of the act of March 12, ISfS (12
it. Each case must rest upon its own merits. The
3t. L. 830), and cannot recover the proceeds of prop-
erty captured and paid into the treasury.'^ rule by which a court will be guided is the maxim
that every one must so use his own property as not to
Municipal aid. Assistance rendered by
injure another. ^
i municipal or SLquasi municipal corporation, See Health; Nuisance; OconpANcr; Property,
IS, a township or a county, toward some Qualified; Utere, Sic, etc.
svork of internal improvement. Whence A; J. See A, 3.
ltd bonds.^ ALASKA. See Territory, 2.
A steam grist-mill may or may not be a work of Congress has power, in its discretion, to prohibit
'haX nature.* the importation, manufacture, and sale of intoxicating
The legislature of a State, unless restrained by the liquors in the district of Alaska, and to make the vio-
jrganic law, has the right to authorize a municipal lation of the prohibition a crime.*
iorporation to take stock in any work of internal im- ALCOHOL. See Distiller; Liquor.
provement, toborrow money to pay for it, and to levy An act of Congress approved May 20, 1887 (24 St. L.
I tax to repay the loan. And this authority can be 69), the substance of which has been enacted in many
lonferred in such a manner that the object may be of the States, provides —
ittaiued with or without the sanction of a popular " Section 1. That the nature of alcoholic drinks and
rote.^ See Bond, Municipal; Corporate, Purpose. .narcotics, and special instruction as to their effects
2. Cure, remedy, supply. Whence aid upon the human system, in connection with the several
divisions of the subject of physiology and hygiene,
ind aider by vei-dict. See Verdict. shall be included in the branches of study taught in
Aid societies. See Benefit, Society. the common or publie schools, and in the military and
AIR. A qualified property may be had naval schools, and shall be studied and taught as
in the air or atmosphere." thoroughly and in the same manner as other like re-
The private owner of property has a natural right to quired branches are in said schools, by the use of text-
purity of air; and, formerly, a like right to its free books in the hands of pupils where other branches are
passage. Easements relative thereto are; a right to thus studied in said schools, and by all pupils in all
pollute it to an extent justified by the customary busi- said schools throughout the Territories, in the military
less of the locality ; and, to send noise through it.^ and naval academies of the'United States, and in the
Ko man niay so use the air as to injure his neighbor. District of Columbia, and in all Indian and colored
schools in the Territories of the United States.
To poison or materially change it is a nuisance. ^
" Sec. 2. That it shall be the duty of the proper offi-
cers in control of any school described in the fore-
> [United States v. Greathouse, 4 Saw. 4S8 going section to enforce the provisions of this act;
Field, J. and any such officer, school director, committee, su-
» Young V. United States, 97 U. S. 68 (1877). perintendent, orteacher who shall refuse or neglect
" See 4 Neb. 455; 101 111. S85. to comply with the requirements of this act, or shall
* Township of Burlington v. Beasley, 94 U. S. 810 neglect or fail to make proper provisions for the in-
:i876); Osborne v. County of Adanjs, 106 id. 181 (1882). struction required and in the manner specified by the
'Thomson v. Lee County, 3 Wall. S.30 (1865); James first section of this act, for all pupils in each and every
s. Milwaukee, 16 id. 159 (1878); Kenicott v. The Super- school under his jurisdiction, shall be removed from
visors, ib. 452 (1872); Railroad Co. i). County of Otoe, office, and the vacancy filled as in other cases.
[6. 667 (1878); Town of Concord v. Savings Bank, 92 "Sec. 3. That no certificate shall be granted to any
U. S. 625 (1875); Fairfield v. County of Gallatin, 100 id. person to teach in the public schools of the District of
17 (1879); .Quincy v. Cooke, 107 lU 649 (1882); Ottawa v. Columbia or Territories, after January 1. 1888, who has
3arey, 108 id. 123 (1S83); Lewis d. City of Shreveport, not passed a satisfactory examination in physiology
:b. 286 (188-3); City of Savannah v. Kelly, ib. 184 (1888); and hygiene, with special reference to the nature and
Jrenda County Supervisors ti. Bragden, 112 id. 861
1884), cases.
«3B1. Com. 14. 'Randall v. Sanderson, 111 Mass. 119 (1872), oases; 64
' 10 A. & E. 590; 4 DeG. & S. 315; 11 H. L. C. 650; 10 N. Y. 489; 25 Tex. 238; 17 Am. L. Eeg. 440, note.
:!. B. 268; 19 W. E. 804; 4 Bing. N. C. 183. "Washb. Easem. 618; 115 Mass. 204; 34 Md. 1.
8 Appeal of Penn. Lead Co., 96 Pa. 116, 123 (1880); 2 "Sellers v. Parvis, &c.X)o., 80 F. R. 166 (1886).
:.d. Ray. 1163. * Nelson v. United States, 30 F. E. 112 (1887).
 ALDERMAN
ALIEN

the effects of alcoholic drinks and other nai'coticB upon 3. At another time ; formerly ; before.
the human system." An alias execution is a process issued, upon a scire
AIiDEBMAIT.i Originally, a senior: a facias or othei-wise, where the original execution has
superior in wisdom or authority. been returned, lost, or legally extinguished as a writ.
A word of frequent occurrence among the Anglo- It is another and different execution actually issued at
Saxons. All princes and rulers of provinces, all earls a different time.'
and barons, were aldermen in a general sense: but the ALIBI. L. In another place ; elsewhere.
word applied more particularly to certain chief officers. The defense that at the time laid in the charge
In modern times, an officer in municipal of an offense the accused was in another place.
corporations who is a kind of "assessor" to Being proven, the conclusion is " not guilty."
the chief magistrate.^ The evidence on the part of the defendant must
In England he sat with the bishop at the trial of outweigh the testimony that he was at the place
causes, applying the common, while the latter ex- charged.'* '
pounded the ecclesiastical, law. Aldermen also sat as The defense must cover the time when the offense
justices of assize, and exercised such powers of gov- is shown to have been committed, so , as to preclude
ernment as were conferred by the charters of their the possibility of presence at the locus in quo. This
cities or towns, in that character talcing (Jbgnizance of impossibility is to be proven like any other fact."
both civil and criminal matters. The term has desig- The court, without discrediting the defense in the
nated an offlcer having judicial as well as civil power, particular case, may obseiwe generally that the de-
in England from a period beyond the Conquest. ^ fense is open to suspicion, because it offers opportu-
nity and tenxptation to employ false witnesses, and
In American cities "the aldermen" are a because it may mislead through a mistake of honest
legislative body with limited judicial power,
witnesses as to the precise day and hour.*
as, in matters of internal police ; in some cities ALIElf.s 1, n. One born in a strange
they hold separate courts and exercise magis- country under obedience to a strange prince,
terial authority.* or out of the liegeance of the king."
In some cities their sole functions are those of a
magistrate of a court not of record and of limited One born out of the king's dominion or al-
statutory jurisdiction in civil and criminal matters:
corresponding, in these respects, to justices of the A citizen or subject of a foreign state.^
peace in boroughs and townships. See Council, 3; In California a " non-resident alien " who may take
legiance."
JosTicE, 2; Magistrate. by succession is one who is neither a citizen of the
AIiE. See Liquor. United States nor a resident of that State."
ALEATORY.-^ Depending upon an event Alienage; alienism. The legal status or
the outcome of which is unknown ; resting condition of an alien.
upon a contingency. Alien born. A naturalized citizen or
Applied, mainly, to annuities and insurance con- subject.
tracts. Itis of the essence of all aleatory contracts Alien enemy. One who owes allegiance
that there should be risk on one side or on both sides.°
AT.TA. See ALIUS. to an adverse belligerent.'"
Alien Mend. A citizen or subject of a
AT.TAS. L. 1. Otherwise ; also used for —
friendly power; one whose country is at
Alias dictus. Otherwise called.
Alias, in the expression " A, alias B," denotes that peace with ours."law a person born within the do-
those names are different descriptions of the same per- By the common
son. The word was formerly employed in connection minion of the United States is a natural-born citizen
with <j!c(its— otherwise called. The use of alias alone 1 Eoberts v. Church, 17 Conn. 145 (1845).
to express the whole meaning has long obtahied. The ' Commonwealth v. Webster, 5 Cush. 3J9, 323 (1850).
term has become familiar as equivalent to " otherwise sBriceland v. Commonwealth, 74 Pa. 469 (1873);
called" or "otherwise known as." Generally the
true name precedes the alias dictus. The term so. State V. Northrup, 48 Iowa, 583 (1878); Peoples. O'Neil,
59 Cal. 259 (1881); Ware ti. State, 67 Qa. 349 (1881); Sav-
used will avoid a variance or misnomer.' age V. State, 18 Fla. 975 (1882); State v. Beaml, 84
La. An. 106 (1882).
> A. S. ealderman, elder-man, elder: eald, old. < See State v. Blunt, 69 Iowa, 469 (1882); Dawson v.
» Brown's Law Diet. ; Spelman, Gloss.
State, 62 Miss. 243 (1884) ; 6 Crlm. Law Mag. 6.55-63 (1885),
s Purdy v. People, 4 HHl, 409, 38r (1842), Walworth,
cases; 22 Am. Law Eev. 297-98 (1888), cases.
Ch. See 1 Hume, Eng. 69. •L. alienus, strange, a stranger.
* [Bouvier's Law Diet.] • [Coke, Litt. 128 6.
' Pronounced a'-le-a-to-ry. L. alea, a die: chance. ' 1 Bl. Cora. 373.
•Moore v. Johnston, 8 La. An. 489 (1852); Henderson 8 Milne v. Huber, 3 McLean, 219 (1843); 2 Kent, 50.
V. Stone, 6 Mart. 690 (1823); May, Ins. § 5. • State
101 Kent,V. 72.Smith, 70 Cal. 156 (1886); Civil Code, S 672
'Kennedy v. People, 39 N. Y. 250-52 (1868); 3 Salk.
238; 4 Johns. 118. " [1 Bl. Com. 372.
 ALIENATE 48 ALIENATIO

whatever the status of his parents. An exception is

made of the children of ambassadors! i *, In common law to alienate realty is volun-
tarily to part with ownership in it, by bar-
"An " alien born " may not purchase lands for his
own use, for the king is thereupon entitled to them:' gain and sale, conveyance, gift, or will.i
One reason is that if he could purchase, the nation The right, originally, was a right in the owner of
might in time become subject to foreign influence. realty to divert it from his heir.'
But he may acquire personalty, which is of a movable To transfer or convey a title. 2
natiu-e; besides that, trade demands this indulgence. An entry to foreclose does not do this.*
As a consequence he may maintain actions concerning Alienee. He to whom property — realty,
personalty, and dispose of it by will. An "alien is transferred. Alienor. He by whom
enemy," however, has no rights unless by the sover- realty is transferred.
eign's special favor.*
By the common law an alien may take lands by Alienation. Any method whereby an
purchase, though not by descent; in other words, estate is voluntarily resigned by one man
while he cannot talre by the act of the law he may and accepted by another, whether that be
take by the act of the party. But he has no capacity
effected by sale], gift, marriage, settlement,
to AoZc2'lands, and they may be seized into the hands devise, or other transmission of property by
of the sovereign. Until so seized, the alien has com-
plete dominion over them. In this regard alien friends the mutual consent of the parties.^
and alien enemies are alike. The title is devested by An act whereby one man transfers the
offlce-found,' 3. v. property and possession of lands, tenements,
Disabilities as to holding realty have been removed
in the States. See Land, Public. or other things, to another. *
At common law an alien is protected in his person, A transfer short of a conveyance of the title is not
as to such property as he may own, in his relative an alienation of an estate.'
rights, and in his reputation. In return for protection Absolute alienation. A transfer of
he is required to pay taxes. He cannot become Pres- realty without condition or qualification.
ident, nor, in some States, governor. Seven years after Conditional alienation. A transfer of
he has been naturalized he may be elected to Congress.
realty made to rest upon some event yet to
Unnaturalized, he could not be adjudged a bankrupt,
he cannot take out a copyright, nor can he exercise happen, or upon some act yet to be done; as,
any political right. See Patent, S; Trade-mark.
See further Allegiance; Citizen; Denizen; Immi-
a covenant to convey an estate.
DITION. See Con-''
gration; Naturalize. Blackstone describes four modes of alienation or
Alien and sedition laws. See Sedition. transfer of title to real estate which he calls " com-
2, V. To transfer; to alienate, q. v. mon assurances: " by matter «n pais or deed; by mat-
Alienable. Admitting of transfer from ter of record in the courts; by special custom; by
one person to another. Inalienable, less See Conveyance, 2; Mortgage; Transfer.
devise.'
frequently unalienable, not Subject to ALIENATIO. L. Transfer, alienation.
transfer or devestment. From alienare, to make to be the property of an-
" Inalienable rights " are such rights as cannot be other: aliemi^, another;
bartered, given or taken away except in punishment Alienatio rei praefertur juri aceres-
of crime.^ cendi. The alienation of a thing is preferred
An '' unalienable right " is one which cannot be sur- in law to its accumulation. Alienation,
rendered to government or society, because no equiv-
alent can he received for it, and one which neither rather than the accumulation, of property is
the government nor society can take away, because
they can give no equivalent. Of such is the right of
favored.'
Limitations upon alienation, imposed by public
conscience.' poUcy or by general statutes, are designed to prevent
ALIENATE. See Alienatio. perpetuities and accumulations of realty in corpora-
To transfer jjroperty to another ; to make
' [Burbank v. Rockingham Mut. Fire Ins. Co. 24
a thing another man's. N. H. 558 (1862). See also Lane v. Maine Mut. Fire Ins
' Town of New Hartford v. Town of Canaan, 54 Co., la Me. 48 (1835); 13 E. I. 622.
Conn. 40-45 (1886), cases. ' Huntress v. Place, 137 Mass. 409 (1884).
" 1 Bl. Com. 373. 3 2 Bl. Com. 2S7.
3 Fairfax v. Hunter, 7 Cranoh, 619-21 (1813), Story, J. ; * Boyd V. Cudderback, 31 111. 119 (1863); 1 N. T. 48.
Conrad v. Waples, 96 U. S. 289-90 (1877); PhiUips v. ' Masters v. Madison County Ins. Co., 11 Barb 680
Moore, 100 id. 212 (1879); Hauenstein v. Lynham, ib. 629 (1853).
484 (1879). " United States v. Schurz, 102 U. S. 397 (1880)- 2 Bl
« Butchers' Union Co. v. Crescent City Co., Ill U. S.
756 (1884), Field, J. 'See20
Com. 2 Bl. Com. 175,
4. 288; 3 Kent, 507; 4 fd. 131' ui-
6 Hale V. Everett, 53 N. H. 60 (1868).
59Pa. 342; 76Va. 144. ' '
 ALIEN!
49 ALL
tions and ecclesiastical bodies, and to protect cred- board is entitled to make a domicil for herself; and,
itors against fraud by debtors; But there is no reason by her next friend, she may sue her husband for the
why a person who is solvent should not make another, alimony decreed.'
who parts with nothing, an object of bounty, thereby Consult the statutes and decisions of each State.
protecting him from the ills of life, the vicissitudes See DjvoROB.
of fortune, improvidence, etc.' See AooDMnLATioN; 2. In Louisiana the necessary expenses of
Tkdst, 1,
a municipality ; also, funds therefor.
ALIEJJl. See under Alius.
The duty of levying a tax to pay registered judg-
ALIKE. See Equal; Equivalent. ments issubordinate to the duty of first providing for
ALIMONY.s Support; provision; allow- " the necessary alimony or support of the city.""
ance for necessaries or maintenance. " The duty of providing for the alimony of the city
is lodged in the discretion of the common council, in the
1. An allowance made to a woman for her
legal exercise of which tho com-ts may not interfere." '
support out of her husband's estate, after a ALIO; ALITEE. See under Alius.
divorce a mensa et tlioroj ALIUD. See Conceal. 5.
Applicable to all allowances, whether annual or in ALIUNDE. See under Alius.
gross, made to a wife upon a decree of divorce — either
from bed and board or from the bond of matrimony.* ALIUS. L. Another, other; different.
Plural, alii.
Alimony pendente lite or temporary.
An allowance at the institution of the suit Alia enormia. Other wrongs. SeeENOEr
to pay the expenses thereof and to supply MIA ; Inter, Alia,
the wife with necessaries. Permanent ali- Alieni generis. Of another kind.
mony. An allowance for future mainte- Alieni juris. Under another's right or
nance at the time a divorce is decreed. authority. See Jus, Sui, etc.
Originally allowed because the wife was without Alio intuitu. Under another aspect.
other means of support or of obtaining the money Alios. Other persons. Whence et al.,
necessary to defray her expenses in the suit, the hus- and et als., q. v. See also A, 3.
band owning everything. Where she has sufittoient
separate property that reason does not exist, s A liter. In another manner ; otherwise -r-
Not the separate property of the wife, but a portion held or decided.
of the husband's estate for her subsistence. At her Introduces an exception to a rule or general prin-
death arrears belong to the husband, subject to the ciple.
payment of her debts.* Aliunde. From another — person, place,
The amount, which is largely discretionary with the or source.
court, is usually proportioned to the rank of the par- Designates evidence derived from an extrinsic
ties, and is, ordinarily, about one-third of their joint source; as, testimony offered to contradict, vary, or
income.^ explain the temjs of a written instrument, or to ex-
The allowance is based upon the existence of the
plain an ambiguity therein.* Compare Dehors. See
marriage relation, the ability of the husband, and the
Parol, 2, Agreement.
circumstances of the wife.* ALIVE. See Death.
To entitle the wife to permanent aJimony there
must have been a valid marriage; by the common When an animal is stolen " alive " it is not neces-
law the marital relation must continue to exist -^ a sary, in the indictment, to state the fact: the law pre-
rule generally changed by statute; the separation sumes it; but when dead, that fact must be stated.^
must be by decree; and she must not be the guilty ALL. Compare A, 4 ; Every ; Omnis.
party — except in a few of the States. An independ- May mean "each " or "every one."'
ent suit for an allowance is not maintainable. In a In the acts of legislatures, as in common parlance,
few States a gross simi is given. The right ceases "all, "being a general rather than a imiversal term, i^
upon re-cohabitation. to be understood in one sense or the other according
A wife under sentence of separation from bed and to the demands of sopnd reason.'
» Nichols V. Eaton, 91 V. S. 725 (1876). As to re- I Barber v. Bafber, 21 How. 590-98 (1868), cases. As
straints inwills, see 18 Cent. Law J. 307-8 (1884), cases. to right to, afteij divorcp, see 24 Ahi. I<aw Eeg. l-2>
' L. alimonia: alere, to nourish, support, supply. (1885), cases; and generalto- 26 id. 83-37 (1887), cases.
3 1 Bl. Com. 441; 1 Kent, 128; 36 Ga. 319; 18 Bl. 40; 93 s Marchand v. New Orltos, 37 La. in. 18 (1886).
N. C. 480. « United States v. New Orleans, 81 F. E. 637 (1887).
4 Burroughs v. Purple, 107 Mass. 432 (1871), oases. « 1 Greenl. Ev. § 291. / /
Gray, J. 'KoUenberger v. Petiple, 9Col. 286 (1886); 1 Wha^
'Westerfleld v. Westerfleld, 36 N. J. E. 197 (1882);
Cr.« Sherburne
L. § 369. /143 Mass. 44?
v. Sj&sho, ' (1887); Towle v.
ColUns V. Collins, 80 N. Y. 1, 11-12 (1880).
« Holbrook v. Comstock, 16 Gray, 110 (1860), cases. Delano, 144 id. lOi (1887).
' 1 Bl. Com. 441-42; Bacon v. Bacon, 43 Wis. 203 (1877). 'KiefEer v. Ehler, 18 Pa. 391 (1852); Stone v. Elliott,
» Daniels v. Daniela, 9 Col. 160-51 (1886), cases.
(4)
11 Ohio St. 858 ( '
 ALLEGAEE 50 ALLEGIANCE

All cases. See Case, 1. cisions is that no vaiianeq between the allegation
All faults. See Fault, 3. of a pleading and the proofs offered to sustain It sha;
be deemed "material" unless of a character to mif
All-fours. Entirely alike.
Cases or decisions are said to be or to run " upon all- flead
ense the opposite
on the partyIrrespective
merits. in maintaining his action
of statutes, or d'(
howevei
fours" when alike in such circumstances as affect no variance ought ever to be regarded as materia
their determiiiation. The expression is metaphorical — where the allegation and proof substantially corre
from the running of mated quadrupeds.
All rights reserved. See Reserve, 2. See Answer, 3; Description, 4; Redundancy; Said
Varunoe.
spond.i
ALLEGABE. L. To lay before one : to
relate, allege. ALLEGHENY CITY. See Common, 3
Allegans eontraria non est audien- ALLEGIANCE.2 The tie, or ligamen
dus. He who alleges contradictory things is which binds the subject to the king in returi
not to be listened to. for that protection which the king aflfordi
"A man shall not blow hot and cold." In Scotch the subject,^
phrase, no man may "approbate and reprobate.'" When acknowledgment was made to the absoluti
See Estoppel. superior, who was vassal to no man, it was in earlj
Allegans turpitudinem. See Tuepi- times no longer called the oath of fealty (g. i;.), bm
TUDB, Allegans, etc. the oath of allegiance: therein the tenant swore t(
bear faith to his sovereign lord, in opposition to al
Allegata, et probata. Allegations and
men, without any saving or exception. . . There ii
proofs. an implied, original, and virtual allegiance owing
A rule of evidence is, that the allegata and thepi-o- from every subject to his sovereign, antecedently tc
bata must agree: the proofs must correspond with the
averments.'' See Allegation. any express promise. ^
Acquired allegiance. Such allegiance
ALLEGATIOM". Statement of what one as is due from a naturalized citizen.*
can prove-, positive assertion; an averment Local allegiance. Such allegiance as is
in pleading. See Allegaee.
due from an alien, or stranger born, as long
Alleged, Asserted; claimed, claimed to
as he continues within the king's dominions
be; charged: as, an alleged — fact, forgery,
offense, deed, will, signature, execution. and protection.*
Natural allegiance. Such allegiance as
Material allegation. Such an averment
is due from all men born within the king's
in the' pleadings of an opponent as requires dominions, immediately upon their birth,
answer — by explanation or denial. Opposed,
immaterial allegation. Also csWbA absolute or permanent aWegiaace.'
Allegiance is nothing more than the tie or duty oi
A material allegation is one which is essen- obedience of a subject to the sovereign whose protec
tial to the claim or defense, which could not tion he is imder. Allegiance by birth arises from
be stricken from the pleading without leaving being born within the dominions and under the proteO'
tion of a particular sovereign. . A person born
it insufficient. 3
on the pcean is a subject of the prince to whom his
Defensive or responsive allegation. parents owe allegiance. The child of an ambassadoi
An averment by way of defense. Eejoining is a subject of the prince whom he represents, al
though bom imder the actual protection and in the
allegation. Complainant's reply to a de-
fensive allegation.^ dominions of a foreign prince.^
Allegiance is the obligation of fidelity and obedience
The rule is that the proof must correspond with which the individual owes to the government undei
the allegations in a declaration (or bill), but the re- which he lives, or to his sovereign in return for the
quirement isfulfilled if the substance of the declara-
protection he receives. . It may be an absolute
tion is proved. The purpose of the rule is that the
and permanent obligation, or a qualified and tempo
opposite party may be fah-ly apprised of the specific rary one. The citizen or subject owes an absolute anc
nature of the questions involved in the Issue. For-
permanent allegiance to his government or sovereign,
merly the rule was applied with great strictness, but
or, at least, until, by some open and distinct act, he re
the modern decisions are more liberal and reasonable. nounces it and becomes a citizen or subject of anothei
The rule established by recent statutes and de-
' See Broom, Max. 169, 294; 60 Cal. 600; 10 Mass. 168; i-Nash V. Towne, 5 Wall. 698-99 (1866), Clifford, J.
50 Mich. 126; 70 Pa. 274; 61 Wis. 261; 62 id. 67, 326. Brown v. Pierce, 7 id. 211 (1868).
= 10 Pet. 209; 2 Sumn. 209; Story, Eq. PI. § 257; 71 'F. a-ligance, homage: L. ad-ligare, to tie, bind.
Ala. 80. 3 1 Bl. Com. 366-69; 20 Johns., 191-93.
■ [Ehemke v. CUnton, 2 Utah, 236 0879): Civil Pract. «1 Bl. Com. 369-70; 44 Pa. 501.
Act, § 66; Lusk v. Perkins, 48 Ark. 247 'Inglis V. Trustees of Sailors Snug Harbor, 8 Pet
* See 3 Bl. Com. 100. 155 (1830), Story, J.; Shanks v. Dupont, ib. 242 (1830).
 ALLEY ALLOW
51
government or sovereign. " An alien whilst domiciled ALLOIfGE.i A paper attached to a bill
in tlie country owes a local and temporary allegiance,
or note for such indorsements as the original
which continues dm'ing the period of his residence.*
paper itself will not hold.
At common law natural sillegiance could not be re-
nounced except by permission of the sovereign to When an indorsement is made on a paper attached
whom it was due.' This was changed by the act of to and made part of a note, such paper is called an
Congress of July S7, 1868,= and by statute of 33 Vict. "allonge." The reason for using it is, there is no
i;. 14, kay 10, 1870. room on the note for the indorsement. This does not
Whether natural allegiance revives upon return of mean that there must be an actual physical impossi-
the naturalized citizen to his native country is not bility of writing the indorser's name on the original
settled.* paper. All that the mercantile law requires is that
when it is inconvenient to write on the back of the
See ExPATKLiTioN; Indian; Naturalization; Trea-
son: War. note the real contract between the vendor and vendee,
which, if so written, would pass the title, it may be
ALLEY. See Road; Wat. written on another paper and attached to it with like
When not qualified by " private," is conventionally effect. There are cases showing that an assignment
understood, in its relation to towns and cities, to mean of a number of notes at once, by a separate paper,
a narrow street in common use.^ never attached to either of the notes or intended to be,
ALLISION. See Collision. is not an indorsement
AT.T.DfiATTTR. L. It is allowed. ALLOPATHY, See MEDicaMj.
The name of a writ permitting a thing re- ALLOT. 1. To set apart a thing to a
quested. person as his share : as, to allot a fund, land.
As, an order or proceeding — to remove an indict- Whence allottee, allotment.
ment, to stay execution of a sentence, that special
bail be furnished, that a quo warranto issue, that a As usually understood, to set apart a por^'
bill of costs be referred to an auditor. tion of a particulai- thing or things to some
ITon allocatur. It is not allowed. person : as, to allot to a widow a portion of her
Special allooatur. The allowance of a husband's estate.'
writ of error required in particular cases. 2. To assign, appoint : as, to allot the jus-
AT.T.OT)TAT..6 From the low Latin allo- tices of the Supreme (3ourt to circuits.
ALLOW. To approve of, sanction; to
dium: every man's own land, which he pos-
sesses in his own right, without owing any permit, consent to. Opposed, disallow. See
rent or service to a superior — property, in Permit; Suffeb.
the highest degree. Opposed, feodum, a In its ordinary sense, to grant, admit,

fee.' afford, or to yield, to grant license to, per-

Wholly independent, and held of no supe- mit. Implies a power to grant some privilege
rior.'
or Allowance.
permission.* The act of permitting or
Held in free and absolute ownership. ^
" All lands . . are declared to be allodial, and giving ; also, whatever is given as a share or
feudal tenures are prohibited " — constitution of Wis-
consin. This mea^ Uttle more than if the framers
had said " free " or " held in free and absolute owner- As, to allow, and the allowance of — an
portion.
account, alimony, an amendment, an appeal,
ship," as contradistinguished from feudal tenures, the
a bill of exceptions, a claim, a pardon, a
prohibition of which, with their servitudes and attend-
ant hindrances to free and ready transfer of realty,
pension, a sum to an insolvent.
constituted the chief object of the provision.'" See " Allowing " claims against estates: the sanction or
Fee, 1 (1); Tenure, 1. approbation which the court gives to the acts of an
I Carlisle w. United States, 16 Wall. 154 (1872), executor or administrator as manifested by his ac-
FiHld, J. Allowance to a widow of money in lieu of dower:
»1 Bl. Com. 369; 3 Kent, 449; 8 Op. Att.-Gen. 139; count.*
something substituted by way of compensation iot
9 id. 356.
"B. S. §1999. another thing."
<Wliart. Confl- L. § 6; 18 Am. Law Keg. 595, 665 1 Al-liinj'. F. allonger, to lengthen.
(1879). 2 Crosby v. Koub, 16 Wis. 626-27 (1863); Folger v.
6 Bailey v. Culver, 12 Mo. Ap. 183 (1882). Chase, 18 Pick. 67 (1836); French «. Turner, 15 Ind. 62
•.Ger. oI-<5(i, all one's own: the whole estate,— Skeat. (1860); Osgood v. Arte, 17 F. E. 677 (1883); Stoiy, Bills,
' 2 Bl. Com. 105.
8 2 Bl. Com. 47, 60. § 204, Prom. Notes, §§ 121, 151.
s Glenn v. Glenn. 41 Ala. 586 (1868.)
e 3 Kent, 495, 488, 498. » Doty V. Lawson, 14 F. E. 901 (1883).
10 Barker v. Dayton, 28 Wis. 384 (1871), Dixon, C. J. » GUdhardt's Heu-s v. Starke, 1 How., Miss., 457 (1837),
See 1 Washb. E. P. 16, 41 ; 9 Cow. 513. » Glenn v. Glenn, 41 Ala. 584, 586 (1868).
 ALLOY
ALONG
52
Allowance to a child or other dependent: ordiiiarily,
common law such additions to land on navigable (tide)
3nly another name for a gift or gratuity J
waters belong to the crown.' ,
The honorable discharge of a soldier from service
ioes not restore him allowances forfeited by desertion The right to alluvion depends upon the fact of the
^included in which is a bounty), that is, everything contiguity of the estate to the river. The accretion
belongs to the strip of land to which it attaches,
Bvhich could be recovered from the - government in rather than to a larger portion from which the strip,
consideration of enlistment and services. The for- when sold, was separated."
feiture must first be removed.^ See Accession; Accretion; BattuHe; Eipariak.
ALLOY. See Coin. ALMS-HOUSE. A house appropriated
ALLXJVIO. L. That which is washed to the use of the poor.^
to a place. Within the meaning of an act exempting property
Alluvio maris. The washing of the sea. from taxation, will include a house used solely for the
Jure alluvionis. By right of alluvion. " purpose of affording pecuniary and other relief to
See Alluvion. persons of Swiss origin in need of assistance." ■
ALONE. See Separate, 3.
ALLUVION. By the common law the
A granted to B, for the use of C " alone," the right
addition made to land by the washing of the to take water anywhere on his donation. Held, that
sea, a navigable river or other stream, when- "alone" signified that the grant was for the " sole"
ever the increase is so gradual that it cannot benefit of C*
be perceived in any one moment of time.^ ALONG. Over against in length; length-
See Alluvio. wise of. Compare By, 1 ; Parallel.
An addition to riparian land, gradually and " By the length of, as distinguished from
imperceptibly made by the water to which across ; lengthwise of ; " as, a railway along a
the land is contiguous. It is different from highway.''' " -
A sidewalk " along the line " of land does not import
"reliction" and the opposite of "avulsion."* that the sidewalk must at all points touch or be
See Avulsion; Dbkeliction, 1.
The test as to what is gradual and imperceptible is, parallel to such line."*
" Along a line " means up to, extending to, reaching
that, though the witnesses may see from time to time
that progress has been made, they could not perceive to, that line.^
In the expression " on, over, and along " an alley, is
it while going on. Whether it is the effect of natural synonymous with on or over, not by the side of .^
or artificial causes makes no difference. The right to An insurable interest on property of a railroad
future alluvion is a vested right. It is an inherent and " p.long its route " means property in proximity to the
essentia;! attribute of the original property. The title rails upon which the engines run : which may be outside
to the increment rests in the law of nature. It is the the lines of the roadway or lawfully within those lines. ^
same with that of the owner of a tree to its fruits, " Along the bank " of the Chattahoochee is definite
and the owner of flocljs and herds to their natural enough to exclude the idea that any part of the river
increase. The maxim qui sentit onus debet sentire or its bed was not to be witliin the State of Georgia —
commodum lies at its foundation. The owner talies by the cession of her unsettled territory to the United
the chances of injury and of benefit arising from the States in 1802. The call excludes the idea that a line
situation of the property. If there be a gradual loss was to be traced at the edge of the water as tliat may
he must bear it; if a gradual gain, it is his. The prin- beat onetime or another; — itisfor"the bank," the
ciple applies alike to streams that do, and to those fast land which confines the water of the river in its
that do not, overflow their banks, and where dykes channel or bed in its whole width. Wherever the bed
and other defenses are, and where they are not, nec- may be it belongs to Georgia, and not to Alabama.
essary to keep the water within its proper limits.* The line Is to be determined, in each trial, by the jury. '°
It is generally conceded that the riparian title at-
taches to subsequent accretions to the land affected 1 Barney v. City of Keokuk, 94 U. S. 337 (1876), Brad-
by the gradual and imperceptible operation of natural ley, J. See also New Orleans v. United States, 10 Pet.
causes. But whether it attaches to land reclaimed by 717 (1836); 16 F. E. 816.
artificial means from the bed of the river, or to sud- = Saulet V. Shepherd, 4 Wall. 508 (1866).
den accretions produced by unusual floods, is a ques- 3 People ex rel. Swiss Society v. Commissioners of
tion which each State decides for itself. By the Taxes, 36 Hun, 311 (1885): Webster.
1 Salem Capital Hour Mills Co. v. Stayton Water-
' Taylor v. Staples, 8 E. L 179 (1866). See also Bacon Ditch* Ca,nal Co., 33 F. E. 164 (1887).
V. Bacon, 43 Wis. 203 (1877). ' County of Cook v. Great Western E. Co., 119 lU. 225
n United States v. Landers, 93 U. S. 79, 80 (1875), (1886): Webster.
Field, J.; 13 Op. Att.-Gen. 198. • Commonwealth v. Franklin, 133 Mass. 570 (1882).
3 Lovlngston v. St. Clair Gouniy, 64 111. 58, 60 (1873), 'Benton v. Horsley, 71 Ga. 626 (1883;.
cases, Thornton, J. "Heath v. Des Moines, &c. E. Co., 61 Iowa, 14- (1883).
« County of St. Clajr v. Lovingston, S3 Wall. 68 (1874), » Grand Trunk E. Co. v. Eichardson, 91 U. S. 472
Swayne, J. See 18 La. An. 122; 2 Bl. Com. 262; 3 Kent, (1875). See also 13 Meto. 99 ; 42 Me..585-86 ; 27 Alb. L. J..385.
188; 2 Washb. E. P. 58, 452. >» Howard v. Ingei'SoU, 13 How. 416-17 (1851).
 ALS 53 ALTER

AIiS. See Altos, Alios. ment had been illegally tampered with; or
AIjSO. In wills, most frequently points such apparent change in the language as
out the beginning of a new devise or be- would deter such person from accepting the
quest. Imports no more than "item," and instrument as reliable evidence of indebted-
ness or of an oblfgation.
may mean the same as " moreover," but not
the same as "in like manner."! Compare That is a "material alteration'' which
Likewise. causes the instrument to speak a language
AIiTEE.2 To make a thing diflerent from different in legal effect from what it orig-
what it was; as, by cutting out a brand- inally spoke ; i or which gives the instrument
mark.' a different legal effect.^
The word implies "another." A thing which ceased A material alteration made without consent after
to exist can in no proper sense be said to be " altered. " execution avoids the instrument; but not so as to
If altei'ed it has merely changed its form or nature, words which the law would supply. The question of
but still has an existence. Thus, in forgery making materiality is for the coiu't. If attested as made
may be by an original fabrication or by merely chang- before execution does not detract from credit; nor,
ing a thing already made into another thing. An if it is against the interest of the holder. If suspicious
altered note is still a note.* upon its face, the law presumes nothing, but leaves
To " alter judicial districts " means to change them. questions of time, person, and intent, to the decision of
It is not a violation of usage to speak of the increasing a jury. If immaterial, presumed to have been made
or diminishing of a given number as an alteration or before execution. But some authorities require ex-
change in the number.' planation before any altered instrument can be ad-
Alteration. 1. A change or substitution mitted in evidencp.^
It will not be presumed that a party would sign a,
of one thing for another : as, the alteration document with material clauses interlined or in the
of a way.6 See Addition, 1. margin. The rule is strict as to negotiables. The
2. An act done upon an instrument by burden of explaining alterations in ancient writings is
which its meaning or language is changed. not imposed when they are taken from their proper
If what is written or erased has no tend- repository. Formal blanks may always be filled.*
The material alteration of a written contract by a
ency to produce this result or to mislead it party to it discharges a party who does not authorize
is not an "alteration." The term applies to or consent to the alteration, becaiise it destroys the
the act of the party entitled under the in- identity of the contract and substitutes a different
strument and imports some fraud or im- agreement. Any change which alters the contract,
proper design to change its effect. The act whether increasing or diminishing liability, is " mate-

of a stranger is a mere "spoliation" or mu- Some authorities hold that where there are no par-
tilation of the instrument, and does not ticular circumstances of suspicion the presumption
rial." '
change its legal operation as long as the of law is that the alteration was made contempora-
neously with the execution, giving as a reason that a
original writing remains legible, and, if it be deed cannot be altered after its execution without
a deed, any trace of the seal remains.' fraud, which is never assumed without proof; other
Material alteration. Such alteration as authorities hold the presumption to be the other way,
and require an explanation of the alteration before
changes the language or meaning of the con-
tract in a material particular. Immaterial the deed can be admitted in evidence.'
In the absence of proof the presumption is that a
alteration. Such merely verbal change as correction by erasure in a deed (a patent to land) was
does hot vary the contract in an essential made before execution. This doctrine rests upon
principle. " A deed cannot be altered after it is exe-
particular.8 cuted without fraud or wrong; and the presumption
Suspicioiis -alteration. Such change, ap-
parent upon inspection, as would lead a man is against fraud or wrong.'' The cases are not uniform
in this country, but the most stringent ones leave the
of ordinary caution to infer that the instru-
question to the jury.'
> Evans v. Knorr, 4 Rawle, 68-70 (1883), cases; 22 ni. 1 1 Greenl. Ev. § 505; 0 Baxt. 402.
366., 2Eckert v. Piokel, 59 Iowa, 547-48 (1882); 51 id. 675;
= L. L. alterare; L. alter, other, another. 30 Minn. 154; 76 Va. 545, 544; 18 Ot. 01. 565,
' Smith V. Brown, 1 Wend. 236 (1838). 3 1 Greenl. Ev. §§ 564-08; 01 Ala. 269; 2 Bl. Com. 303.
» Haynes v. State, 15 Ohio St. 467 (1804). « 1 Whart. Ev. §§ 621-33, ?32, cases.
'Mersraan v. Werges, 112 U. S. 141 (1884), cases,
6 People V. Sassovich, 29 Cal. 4S4 (186G).
» Johnson v. Wyman, 9 Gray, 189 (1837), Shaw, C. J. Gray, J. ; Angle v. Northwestern Mut. Life Ins. Co., 92
^[1 Greenl. Ev. §566. id. 342(1875).
• Malarin v. United States, 1 Wall. 388 (1863), Field, J.
8 See Woodworth v. Bank of America, 19 Johns.
' Little V. Herndon, 10 Wall. 81 (1869), cases, Nel
891 (1821): 10 Am. Deo. 267-73 (1879), cases.
 54
ALTERNATIVE AMBIGUITY

A voluntary alteration of any instrument under

la doubt arises as to the applicability ■of the
seal, in a material part, to the prejudice of the obligor
or maker, avoids it — Unless done with the assent of the language to a particular person or thing.i
parties affected. Such act differs from spoliation by AmMguitas patens is that which appears
a stranger, or accidental alfteration by mistake, in to be ambiguous upon the instrument. Am-
which case the instrument retains its effect. In re- Mguitas tatens is that which seems certain
spect to commercial paper the rule is more stringenjb, and without ambiguity for anything that
the la'W casting on the holder the burden of disproving
any apparent material alteration on the face of the appears upon the instrument, but there is
some collateral matter out of the deed that
paper. The ground of the rule is public policy to in-
sure the protection of the instrument from fraud and breeds the ambiguity. ^
substitution. The purpose is to take away the motive
A " latent ambiguity " is where you show
for alteration by forfeiting the instrument on discovery
that words apply equally to two different
of the fraud. 1
See Forge, 2; Note, 2, Raised; Katifioation. things or subject-matters. 3
Evidence is then admissible to show which thing or
AIiTEENATIVE.2 Offering a choice
between two acts, courses, or things : as, an subject was intended.^
Difficulty in applying the descriptive portion of a
alternative— covenant, obligation, judgment. deed to the external object usually arises from a latent
An alternative writ commands the respondent to ambiguity, which, having its origin in, is to be solved
do a certain, thing or show cause why he should not do
by, parol evidence.* '
it: as, an altei-native TnandamiLS,^ q. v. A "patent ambiguity" means an inherent
Alternative pleadings are ill; and alternative judg- ambiguity which cannot be removed either
ments, decrees, and sentences are, as a rule, invalid.
See Or, 2; Relief, 3. by the ordinary i-ules of legal construction
ALWAYS. See Provided. or by the application of extrinsic and explan-
AM, Amended, amendment; American. atory evidence, showing that impressions
AMALGAMATE. See Consolidate, pHma /acie unintelligible are yet capable of
Associations. conveying a certain, definite meaning.^
The court has to do with cases of patent ambiguity;
AMBASSADOR. See Minister, 3.
the jury with a case of latent ambiguity. When the
AMBIGUITAS. See Ambiguity. intention cannot be ascertained the defect is incurable.
AMBIGUITY.^ The eflfeot of words that Ambiguitas verborum latens verificatione supple- .
have either no definite sense or a double twr; nam guod ex facto oritur ambiguum verifica-
sense.^ tione facti tollitur. A latent ambiguity of words is
supplied by evidence; for whatever arises ambiguous
Ambiguity or duplicity are predlcable' only of lan- from a fact [extrinsic] may be removed by evidence
guage as to which it is needful to make a choice of
readings; while "indistinctness," "obscurity," and of the fact.'
Quotles in verbis nulla est ambiguitas, ibi nulla
" uncei'tainty " incliide these, and also cases of lan- expositio contra verba flenda est. As long as in the
guage devoid of sense or which does not present any
words there is no ambiguity, then no interpretation
meaning with clearness or precision. The case of a
contrary to the words is to be made.'
blank left for a name should be deemed an uncer-
A cardinal canon of interpretation, both of deeds
tainty." and of statutes. The words, the context, an^ the sub-
Patent amtaigmty. Such ambiguity as jeotmatter, are to be considered equally with the
appears upon the face of the writing itself. effect and consequences or the spirit and reason. If
Latent ambiguity. Where a writing is not before them."
perfect and intelligible upon its face, but, 1 Stokeley v. Gordon, 8 Md. 505-9 (1855).
from some circumstance admitted in proof, .2 [Lord Bacon, Max. Eeg. 28 (26), Law Tracts, 99-100.
Approved, Lathrop v. Blake, 23 N. H. 60 (1851); Ly-
sou, J., quoting Campbell, C. J., in Doe v. Catomore, coming Mut. Ins. Co. V. Sailer, 67 Pa. 112 (1870); Deery
71 E. C, L. 746 (ISai). V. Cray, 10 Wall. 270 (1869); Hawkins v. Garland, 76
I Neft V. Homer, 63 Pa. 330-^1 (1869), cases. See also Va. 152 (1882). ' See 1 Greeul. Ev. §§ 297-300; 1 Whart
Batchelder v. White, 80 Va. 108 (1885), cases; Fuller v. Ev. §§ 966-57, 961, 1008.
Grfeen, 64 Wis. 165 (1885), cases; State v. Churchill, 48 » Smith V. Jeff ryes, 15 M. & W. •662 (1846), Alderson, B. ;
Ark. 437-40 (1880), cases; 3 Daniel, Neg. Inst. K 1373-75, Webster v. Paul, 10 Ohio St. 534 (1860); 40 Ark. 241.'
cases; 30 Alb. Law J. 245-49 (1884), cases; Bishop, Contr. *Eeed v. Proprietors of Locks, 8 How. 290 (1850)-
§§ 745-76, cases. Moran v. Pi-ather, 23 Wall, 601 (1874).
^ L. alt&r, other. 6 Brown v. Guioe, 46 Miss. 302 (1872), Peyton, C. J.
= [3 Bl. Com. 373, 111. « Bacon, Max. 23; Broom, Max. 608; 2 Kent, 557;
Pet. 97; 100 Mass. 60; 8 Johns. 90; 67 Pa. 112. 13
*L. ambiguus, doubtful.
' [Ellmaker v. Bllmaker, 4 Watts, 90 (1835), Gibson, ' Broom, Max. 617; 2 Bl. C(jm. 379; 8 Mass. 201.
C. J. 8 Dame's Appeal,, 62 Pa. 420 (1869), Sharswood J • 66
' Abbott's Law DictT id. 136, 251; 84 La. An. 227, 957.
 AMBULATORY 55 AMENDMENT

A latent ambiguity in a will, which may be removed

place, for attacking by surprise. ' See Dis-
by extrinsic evidence, may arise: (1) When the will guise.
names a pereon as the object ot a gift, or a thing as
AMENDMENT.2 1. Correction of a
the subject of it, and there are two pei*sons or things
that answer such name or description ; or (3) when the fault ; the curing of a defect ; alteration for
will contains a misdescription of the object or subject, tory.better ; improvement. Whence amenda-
the
as where there is no such person or thing in existence ;
or, if in existence, the peraon is not the one intended,
or the thing does not belong to the testator. When a " Amend," in its most comprehensive sense, means
to better. . . When a defendant is allowed to
careful study of the testator's language, applied to withdraw one plea or answer and to substitute another
the circumstances by which he was surrounded, dis- which rightly sets out his defense, it is a change for
closes an inadvertency or mistake in a description of
the better — an " amendment." ^
a person or thing which can be corrected without add-
Also, the writing or instrument made or
ing to his language — thus making a different will, —
the correction should be made.i proposed, which embodies the improvement.
One Gilmer, after making bequests to two Presby- Used of the correction, proposed or actu-
terian churches in Illinois, and other bequests, left the ally made : of an error in the pleadings or
rest of his estate " to be divided equally between the proceedings in a pending cause ; of changes
board of foreign missions and the board of home
missions." Held, that there was a latent ambiguity in bills, statutes, and ordinances, by law-
respecting the object of the residuary gift, but that makers; of altei'ations in charters and by-
the ambiguity could be removed by extrinsic evidence ; laws : of changes in constitutions.
that the evidence introduced, taken in connection with Material amendment. In pleading,
the bequests to the Presbyterian churches, showed
that the testator meant the Board of Foreign Missions such change in the substance of a party's
and the Board of Home Missions of the Presbyterian case as destroys its former identity and oc-
Church of tlie United States ot America, of which he casions surprise {q. v.) in his adversary.
was a member and an ofSoer, and not any board of At common law, proceedings being in fieri till judg-
missions controlled by the Baptist, Methodist, Episco- ment, the coin'ts allow amendments up to that point.
palian, or other denomination.' After judgment enrolled, no amendment is permitted
AMBUIiATOB.T.3 1. Moving about at a subsequent term; for only during the first term is
from one place to another ; not held in any the record in the breast of the court.* See further
Record, 2.
one place ; not stationary.
The court of common pleas while it followed the An indictment, being a finding upon the- oaths of
the grand jury, can be amended only by their consent.
king's household was said to be ambulatory. See Indictment.
3. Not fixed in legal character; not yet Allowipg amendments is incidental to the exercise
settled past alteration ; revocable. of all judicial power, and indispensable to the ends of
In this category is a sheriff's return until filed; and justice. Usually to permit or refuse any particular
a will, to the last moment of testamentary ration- amendment rests in the discretion of the court; the
ality.
result is not assignable for error.'
Voluntas testatoris est ambulatoria usque ad mor- An appellate court wUl regard as made such amend-
tem. The will of a testator is ambulatory (alterable, ment to a verdict as should have been made in the
revocable) up to his death.*
court below."
AMBUSH. The act of attacking an A bill in equity may be amended, when found de-
enemy unexpectedly from a concealed sta- fective inparties, in prayers for relief, or in the omis-
tion. A concealed station where troops or sion or mistake ot some fact or circumstance con-
nected with the substance of the case, but yet not
enemies lie in wait to attack by surprise ; an forming the substance itself, or for putting in new
ambuscade. Troops posted in a concealed matter to meet the allegations m the answer. That
is to say, by amendment the plaintiff may not make
> Patch V. White, 117 U. S. 217-19 (1888), cases, Brad- a new bill.'
" Dale County v. Gunter, 46 Ala. 142 (1871), Peck, C. J.
ley, J. See also Senger v. Senger's Executor, 81 Va.
694-97 (1886), cases; Webster v. Morris, 66 Wis. .397 (1886), 2 F. amender: L. emendare, to free from fault.
cases ; 64 id. 355. ' [Diamond v. Williamsburg Ins. Co., 4 Daly, 500
a Gilmer v. Stone, 120 U. S. 586, 588-90 (1887), cases, (1873), Daly, C. J.
■1 3 31. Com. 407-8.
Harlan, J. In Hannen v. Moulton, 23 F. R. 6-11 (1886),
a devise of 1,500 acres of land was held defective on »Tilton V. Cofield, 93 U. S. 166 (1876); International
accotmt of a latent ambiguity. See generally 5 Am. Bank-u. Sherman, 101 id. 406 (1879); Tiernan v. Wood-
Law Reg. 140-43 (1866), cases. ruff, 5 McLean, 138 (1860), cases; 11 F. R. 781; 13 id.
s Am'bulatory. L. ambulare, to walk or move 663-55, cases; 132 Mass. 194.
about. » Shaw V. North Penn. R. Co., 101 U. S. 567 (1879).
4 Coke, Litt. 112 6; 2 Bl. Com. 603; 4 Ves. 210; 10 id. ' Shields v. Barrow, 17 How. 144 (1854); Story, Eq.
379; "148 ISJass. 221; 1 Story, Eq. § 606 a. PI. I 884.
 AMENDMENT 56 AMENDS

In reference to amendments of equity pleadings tend to show that in the judgment of those wl
generally, the courts have found it impracticable to adopted the Constitution there were powers creatf
lay down a rule for all cases. Their allowance, at by it which grew out of the aggregate of powers co
every stage, must rest in discretion — a discretion ferred upon the government, or out of the sovereignl
depending largely upon the special circumstances of instituted. '
each case. But the ends of justice should never be They left ,the authority of the States where the
sacrificed to mere form, nor by a too rigid adherence found it, and added noticing to the already existk
to technical rules of practice. Where the application powei-s of the United States.^
comes after the litigation has continued some time, The feeling that the Constitution as proposed fc
or when granting it would cause serious inconvenience ratification contained no formal Bill of Rights led 1
or expense to the opposite side, great caution should the adoption of the ten amendments. All are designe
be exercised. Where it would materially change the to operate as restraints upon the general Governmen
very substance of the case made by the bill, and to most of them are for the protection of the prival
which the parties have directed their proofs, an rights of persons and property. Notwithstanding th
amendment should rarely, if ever,be"permitted.^ -See reproach, however, there are many provisions in th
JEOFAIL.
original instrument of this latter character.*
3. Amendments to constitutions are made The provisions of the fifteen amendments will t
in pursuance of directions contained in the found quoted and commented upon under the follov
instruments themselves. ^ ing titles:
1 — Assembly; Liberty, 1, Of speech. Of the presi
What here follows relates, as will be seen, to the Religion.
Constitution of the United States.
II, m — Militia.
" The Congress, whenever two thirds of both Houses rv — Search, Warrant.
shall deem it necessary, shall propose Amendments to
V — Criminate; Indictment; Jeopardy; Process, :
this Constitution, or, on the Application of the Legis- Due, etc.; Take, 8.
latures of two thirds of the several States, shall call a VI — Crime.
Convention for proposing ^.mendments, which, in VII — Jury, Trial by. .
either Case, shall be vahd to all Intents and Purposes,
Vin — Bail, 2; Fine, 8; Punishment, Cruel, etc.
as Part of this Constitution, when ratified by the Leg- IX, X — CoNSTrruTioN, p. 238; Power, 3.
islatures of three fourths of the several States, or by XI --Suit, p. 990,
Conventions in three fourths thereof, as the one or the
XII — Electors, Pi-esidential.
other Mode of Eatiflcation may be proposed by the
XIH, XIV, XV — Citizen.
Congress; Provided . that no State, without its And see generally Constitdtiok; Expressio; Got
Consent, shall be deprived of its equal Suffrage in the ernment; State, 3 (2).
Senate." ' AMBIIDS. Reparation ; compensation f o
The President's approval of a proposed amendment
is not necessary.* wrong done ; satisfaction.
The amendments themselves thus far made (May, By 84 Geo. H (1751), c. 24, re-enacted in severs
States, a tender of amends to the party injured by
1888) are designated as " Articles in Addition to, and
Amendment of the Constitution," etc., and are num- mistake made by a magistrate, acting as such, is a ba
bered "Articles I, II," etc., up to XVt to a contemplated action.*
Upward of one himdred amendments were pro- Any sum may be tendered, because, in torts, th
posed by the minorities In the several conventions that standard of damages is uncertain and the party is a
adopted the Constitution. The First Congress referred likely to recover at trial less than more than the sui
them to a committee of one member from each State. tendered. 5
Twelve articles were agreed to for submission to the In some States a like tender may be made by a mil
States. The first two, relating to the number and the ister or a magistrate who marries a minor without th
consent of the parent or guardian; also, forinvolui
pay of the members of the lower House, were re-
jected, and the remaining ten ratified, December IB, tary trespasses committed by constables, revenu
officers, and perhaps some other ministerial ofiacers.
1791.0 See Compensation, 2-4; Distress; Tender, 2.
Most of these ten amendments are denials of power
which had not been expressly granted, and which
cannot be said to have been " necessary and proper did not need a BiU of Bights— the Government bein
for carrying into Execution" other powers. . . They " limited," having only such powers as were speciall
granted to it — " satisfied not one State." 2 Bancrof
1 Hardin v. Boyd, 113 U. S. 761 (1885), Harlan, J. Ap- Const. 241-42, et seq.
proved, Richmond v. Irons, 181 id. 47, 46 (1887); Cou- ' Legal Tender Cases, 12 Wall. 535 (1870), Strong, ;
brough V. Adams, 70 Cal. 378 (1886); 17 id. 235. s United States v. Cruikshank, 92 U. S. 528 (1875
2 See Prohibitory Amendment Cases, 24 Kan. 709-12 Twitchell v. Pennsylvania, 7 Wall. 325-37 (1868), casei
(1881); Be Constitutional Convention, 14 K.I. 651(1883). s Kring v. Missouri, 107 U. S. 286 (1882), Miller, J. Se
3 Constitution, Art. V also Spies v. Illinois (Anarchists' Case), 123 id. IE
*Hollingsworth v. Virginia, 3 Dall. 378 (1798). (1887), Com. 816.Saw. 262.
■> 3 Bl.cases; '
» See 1 Story, Const. |§ 301-5; 1 McMaster, Hist. Peop.
U. S. 501, 555. While the proposed Constitution was » 3 Shars. Bl. Com. 16; 3 Watts, 317; 5 S. & E. 209, 51
before the people for adoption, the explanation that it » See Arch. Pract. 1378, 1174, 1273^
 57
AMERCE AMOTION

AMEBCE.i To be amerced, or d mercie, danger of going wrong. It is not his function to take
upon himself the management of a cause. >
is to be at the king's mercy with respect to a AMNESTY. Has no technical meaning
fine to be imposed. Later, simply to be fined.
Whence amercement. in the common law : is merely the synonym
Before the jury deliver their verdict the plaintiff is of " oblivion," which, in English law, is the
to appear in court, by himself or attorney, to answer synonym of "pardon." The literal meaning
the amercement to which he is liable in case he fails
is " removal from memory." 2
in his suit, as a punishment for his false claim. The Properly belongs to international law, applying to
amercement is disused, but the form remains. It was rebellions which by their magnitude are brought
an arbitrary amount, unliquidated; u "fine" was a within that law."
fixed sum imposed upon one not a party for some
" Pardon " i$ remission of guilt; " amnesty " an act
fault or misconduct." of oblivion or forgetfulness.'
Now used of a mulct or penalty imposed By act of May 22, 1872, the political disabilities im-
by a court upon its owh ofiicers for neglect posed by the third section of the XlVth Amendment
were removed from all persons except members of
of duty. In several States, also, amerce-
the thirty-sixth and thirty -seventh Congresses, officers
ment is the remedy against a sheriff for fail- in the judicial, military, and naval service, heads of
ing to levy an execution or make return of departments, and foreign ministers, of the United
proceeds of a sale according to statute.' States.* See Oath, Of office; Pardon.
AMERICA. See Discovery, 1 ; State, 3 AMONG. Intermingled with.
Commerce among the States cannot stop at the ex-
(3), p. 966. ternal line of each State, but may be introduced into
American. In the general mind now de-
the interior. . . Comprehensive as "among "is it
scribes adescendant of Europeans, born in may properly be restricted to that commerce which
America, and is especially applied to an in- concerns more States than one. . . Commerce
habitant ofthe United States.* among the States must of necessity be commerce
with the States." See Commerce.
AMI. F. A friend. Also spelled amy.
Each child has a share where a power is distrib-
Compare Amicus. uted "amongst " children.' See Between.
Alien ami. An alien friend. See Alien, 1. AMORTISE. See Mortmain.
Prochein ami. Next friend.
AMOTION.^ Turning out; removal.
One admitted by a court to prosecute for an infant,
because otherwise the infant might be prejudiced by
1. Turning out the legal proprietor of an
the refusal or neglect of his guardian. He is a species estate in realty before the termination of
of attorney; and the court controls his actions." See the estate; 8 an eviction. See Eviction;
Fbiend, Next; GtrAKDLAN, Ad litem. Duster.
AMICABIiE. Friendly ; agreed to ; pros- 3. Removal of a corporate officer from of-
ecuted by consent of all parties ; opposed to fice, as distinguished from depriving a mem-
adverse, adversary: as, an amicable action, ber of his privilege of membership 9— expul-
an amicable saire facias to revive a judg- sion, disfranchisement.
ment, mortgage, or other lien. This right, for just cause, is a common-law incident
An amicable lawsuit is a suit instituted seriously to all corporations. Where the appointment is during
but in a friendly spirit, that some matter in contro- good behavior, or the removal is for a specified
versy, by judicial decree, may be settled definitely, cause, an opportunity to be heard should be afforded.'
as cheaply and with as little delay as possible.' Among the various causes are — firsts such as have
AMICUS. L. A friend. Compare Ami. no immediate relation to the office yet are in them-
Amicus CTirise. A friend of the court.
>Taft V. Northern Transp. Co., 66 N. H. 416 (1876),
Imports friendly intervention of counsel to remind
the court of some matter of law which has escaped Gushing, C. J. See also 11 Pitts. Leg. J. 321-28 (1864);
its notice and in regard to which it appears to be in 109 U. S. 68; 2 Mass. 215; 11 Tex. 608; 11 Gratt. 666.
2 Knote V. United States, 10 Ct. CI. 407 (1874).
'Exp. Law, 35 Ga. 896 (1865): Pardoning Power, 11
' F. ainercier^ to fine: L. merces^ wages, detriment, Op. Att.-Gen, 228 (1865).
* 17 St. L. 142. See, as to President granting a gen
pains.
2 3 Bl. Com. 376, 275; 4 id. 379-80. eral amnesty, 8 Am. Law Reg. 513-32, 577-89 (1869),
' Abbott, Bouvier, Law Diets.
» [Beardsley v. Bridgeport, 53 Conn. 493 (1885), Par- 'Gibbons v. Ogden, 9 Wheat. 194, 196, 227 (1821),
dee, J., where the word is used in a charitable bequest. Marshall, C. J.; 14 How. 573; 8 Wall. 783; 9 id. 43.
•4 Kent, 343:
' Tidd, Pract. 100, n ; Tucker v. Dabbs, 12 Heisk. 19-20
(1883); 10 Abb. Pr. 40. ' L. a-movere, to move from, remove.
'Thompson v. Moulton, 8 La. An. 537 (1868); Lord v. » [3 Bl. Com. 198-99.
Teazle, 8 How. 855 (1850), Taney, C. J. » See 3 Kent, 397; Bouvier, cases.
 AMOUNT 58
ANCIENT

selves of so infamous a nature as to render the of-

After the rule was adopted that inheritances might
fender unfit to execute any public franchise — but
ascend, tbe ancestor was the person from whom the
indictment and conviction must then precede ; second, inheritance devolved upon the heir, and a child might,
such as are only against his oath and the duty of his
oiHce as a corporator and amount to a breach of the therefore, be the ancestor of his parent.' '
tacit condition annexed to his office; third, such as Common ancestor. The parent from
are offenses not only against the duty of his ofiflce, but whom designated persons have sprung.
In the Ohio statute of descents the ancestor is any
are indictable at common law, ^ See T^enijre, Of office.
one from whom the estate is inherited. The ancestor
AMOtrifT. See Description, 1, 4; Dis-
from whom it must " have come to the intestate "is
pute; Exceeding; More or Less; Sum. he from whom it was immediately inherited. Such
AMPLIARE. See Judex, 3, Boni, etc. ancestor takes the place of the first purchaser under
AMTTSEMENT. See Entertainment; the English canons of descent. . No remote an-
Game, 3 ; Eight, 3 (3), Civil rights ; Theater ; cestor has any favorable estimation here. Neither
Ticket. the primary definition nor the legal sense of the word
agrees with the most popular and obvious significa-
AN. See A, 4; Ad; Ante; Ant. tion. He from whom the estate was immediately in-
ANALOGY. See Argumbntum, A simile. herited is the ancestor, the propositus, from whom
ANAECHY.2 The absence of govern- the estate came.^
Embraces collaterals as well as lineals through
ment ;a state of society in which there is no
whom an inheritance is derived, and refers to the im-
law or supreme power. 3 mediate ancestor.''
" K the conspiracy had for its object the Hestruetion Uncles, aunts, and other collateral " antecessors "
of the law and government, it had for its object the who are not in fact "ancestors " are sometimes desig-
bringing about of practical anarchy. And when mur- nated as " collateral ancestors." In its ordinary import
der has resulted from the conspiracy and the perpe- " ancestors " includes only those from whom the per-
trators are on trial for the crime, whether or not they
son spoken of is lineally descended on the father's or
were anarchists may be a proper circumstance to be the mother's side. When used in a sense different
considered in coimection with other circumstances, from its ordinary import of lineal antecessors, so as
with a view,of showing what connection, if any, they to embrace all the blood relatives preceding the per-
had with the conspiracy and what were their purposes son referred to, it is qualified or enlarged by some
in joining it." 3 other t6rm.* ancestor " in the Massachusetts statute
See further as to case cited, Accessary; Chal- " Maternal
lenge, 4;Character; Charge, 3 (2, c); Conspiracy; of 1851, u. 311 (relating to illegitimate children), is
Courts, United States; Criminate; Doubt, Reason- limited to progenitors in the direct ascending line, ac-
able; Jury; Malice; Opinion, 2. cording to the common meaning and the only sense in
Alf CESTOR.4 The last person actually which "ancestor" is used throughout the statute of
seized of an inheritance.^ descents and distributions.^
See further Consanguinity; Descent; Heir;- In-
In the law of descents the prepossessor of herit.
an estate. 6 AWCHOE. See A, 3, A 1; Appurte-
The ascendant of an intestate in the right nance Furniture,
; Of ship.
line, as father, mother, grandfather, grand- A vessel fastened to a pier is not "lying at an-
chor;"'' nor is a vessel purposely beached, though
mother.''
The person from whom an estate descends ; having an anchor out for caution.'
not a progenitor, in the popular acceptation. 8 ANCIENT.8 1. Created, made, con-
It is the immediate, and not the remote, ancestor ceded, or established at a day now long past ;
from whom the estate descends.* beginning with a period indefinitely early;
1 Eex V. Richardson, 1 Burr. B3B (1758), Mansfield, dating from a time so remote as to acquire
C. J.; 1 B. & Ad. 936; L. E., 5 H. L. 636. See gener- or have attached some right or privilege ac-
ally 34 Cent. Law J. 99 (1887), cases. accorded in view of long continuance: as,
^ Gk. anarchi'a, lack of government: an'archos,
without a chief. ' Lavery v. Egan, 143 Mass. 391 (1887), Field, J.
' [Spies et al. v. People, 122 HI. 253 (Sept. 14, 1887), 'Lessees of Prickett v. Parker, 3 Ohio St. 396-97
Magruder, J., — " Anarchists' Case." . [Webster's Diet. (1854). See also Gardner v. Collins, 2 Pet. 91 (1839).
Same case, 9 Cr. Law Mag. 839, 926-35, cases; 12 N. E. 'Wheeler v. Clutterbuck, 53 N. Y. 71 (1873).
Eep. No. 16; 18 Chic. Leg. News, 809, 411. < Banks u. Walker, 3 Barb. Ch. 446-47 (1848), Wal-
*F. cmcessour, a fore-goer: L. antecessor: ante ce- worth, Ch.
dere, to go before. s Pratt w. Atwood, 108 Mass. 42 (1«71), Gray, J.
= 3 Bl. Com. 209, 443; 2 Kent, 404, 419. • Walsh V. n'. Y. Floating Dry-Dock Co., 7? N. T. 453
« [McCarthy v. Marsh, 5 N. T. 375 (1851). (1879).
' [Valentine v. Wetherill, 31 Barb. 659 'Eeid V. Lancaster Fire Ins. Co., 19 Hun, 386 (1879).
s Bailey v. Bailey, 25 Mich. 188 (1872). " F. ancien. L. antianuLS, of a former time, old.
« Murphy v. Hemy, 35 lud. 450 (1871). Formerly, aniient,— 3,B1. Com. 99; 3 id. 374; 4 id. 380.
 59
ANCILLARY ANIMAL

ancient — demesne, house, lights, wall, writ- While the use in a particular context or
ings, qq. V. statute may be limited by the general mean-
3. A corruption or misprint of enceinte, ing and purpose, the term, in jurisprudence,
j)regnant — infirm : as, an ancient witness. may include any living creature not human
See Deposition. or rational.!
ANCILLAHY.i Auxniary;-subordinate; In a statute against cruelty to animals includes wild
incidental; additional. and noxious animals, unless -the purpose of -the statute
or the context indicates a limited meaning."
The king's court is not ancillary to any other.^
Thus also are or may be related — one constitutional Animals are distinguished as domitce na-
po^ifer to another; ^ implied powers in a corporation; * turce, of a tame disposition ; and feroe naturce,
a writ ot certiorari to a writ of habeas corpus; a capias^ of a wild disposition — wild by nature.
originally, to a summons, judgment or decree, to se- Animals of a ".base" nature are such as
cure obedience or enforcement; a sequesti'ation to
preserve from waste movables on mortgaged prop-
are not fit for food, but are kept for pleasure,
erty; *a commission to aid the court by hearing and curiosity or whim.
report; ' one bill in equity to another bill; ^ an attach- In such animals as are of a tame nature, a man
ment to another proceeding; ^ an action in aid of an may have as absolute a property as in any inanimate
execution at law to the original suit; ^ an act toward being; because they continue pei-petuaily in his occu-
the performance of an agreement; i° an administra- pation, and will not stray from his house or person
tion (q. V.) subordinate to another; " parol testimony unless by accident or fraudulent enticement, in which
in some relations; ^"^ an outbuilding, to a dwelling- cases the owner does not lose his property. The steal-
house; a statute, to a constitutional amendment. ^^ ing or forcible abduction of such property is also
AlfCIPITIS. See Usus, Ancipitis. felony: for these are things of intrinsic value, serving
for the food of man or for the uses of husbandry. But
AHU. Compai'e Et. in animals /erce naturce a man can have no absolute,
Construed to mean " or " (and " or " to mean " and ")
merely a qualified, prop6];ty — per industriam^ by re-
when necessary to give effect to the intention — of par-
claiming and making them tame by art, industry, train-
ties to contracts, of testators, of law-makers ; but not so
ing, or by so confining them within his own immediate
when the evident intent would thereby be defeated.'* power that they cannot escape and use their natural
See further Or, 2.
Uberty \— propter impotentiam or ratione impotentiaz^
AH'GEB. See Assault ; Malice. on account of their own inability, as, in yoxmg ani-
A'MTM'AT.. Any irrational being, as dis- mals, imtil they can fly or run away; — propter privi-
tinguished from man. legium, by virtue of privilege, as of game within a
In a common sense, a quadruped; not, a liberty. While these creatures, reclaimed from the
wildness of their nature, thus continue qualified or
bird or a fowl. '^
In discussions in the cases as to what is included by defeasible property they are as much under the pro-
tection of the law as if the owner's absolutely and
" animals " in the law of property and of larceny, in indefeasibly. It is also as much a felony to steal such
duty laws, in statutes punishing malicious mischief, of them as are fit for food as to. steal tame animals;
and the like, the term is limited by notions of prop- but not so if they are kept only for pleasure, curiosity
erty. . . Steadyprogresshasbeenmade toward the
or whim, as dogs, bears, cats, parrots, singing-bii'ds:.
recognition of all sentient life as deserving legal pro- because their value is then not intrinsic, but depends
tection, irrespective of the property aspect. >» purely upon the caprice of the owner, though the
' An'-cil-la-ry, L. ancillaris, ancilla, a handmaid. taking is such an invasion of property as may amoimt
»3B1. Com. 98. to a civil injmy and be redressed by a civil action.'
At common law larceny may be committed of a
= Legal Tehder Cases, 12 WaU. 535 (1870).
* 1 Pars. Contr. 141. collar or chain attached to an animal not itself the
'Dupasseur v. Eochereau, 21 Wall. 136 (1874).
•Forbes Street, 70 Pa. 138 (1871).
subject
7" — /
of propertl.'
A property in dpgs (g. v.) is now recognized under
' Christmas v. Eusaell, 14 Wall. 83 (1871). laws providing torjtheir registration and taxation."
8 Cooper V. Reynolds, 10 Wall. 314 (1870).
' Claflin V. MoDermott, 12 P. E. 375 (1882). ' [Abbott's Lay Diet.]
■"IStory, Eq. §762. 2 Conlmonweal'th v. Turner, 145 Mass. 300 (Nov. 23,
" 1 Story, Eq. § S83. 1887): f ub. Sts. ch. 207, § 53.
12 Wall V. Dovey, 60 Pa. 213 (1869). ' 2 Bl. Com. 390-94. See also 3 Kent, 349-60; Buster
" 109 V. S. 20; 111 id. 522. So also an attachment V. Newkirk, 20 Johns. *75 (1822) — as to a deer wounded
may be, 48 Ark. 200; and one section in a charter to by one and captured by another person; State v.
another section, 31 F. E. 318. Ki-idJr, 78 N. C. 482 (1878) — as to fish (in a pond?);
>« Litchfield v. Cudworth, 15 Pick. 27 (1833); 14 id. 453; Swift u Giflord, 2 Low. 112-15 (187J), cases,— as to a
United States v. Fisk, 3 Wall. 447 (1865); Dumont v.
harpooned whale; Ghen v. Rich, 8 F. R. 159 (1881),
United States, 98 U. S. 143 (1878); 65 Vt. 470. oases,— as to a dead whale found floating.
"Eeiche v. Smythe, 13 Wall. 165 (1871). 7i Bl. Com. 235.
" [Abbott's Law Diet. /'« See Morewood v. Wakefield, 133 Mass. 241 (1882);
 ANIMAL ANNEX
60
The owner of an animal or the person who has the
AIMTMns. L. Mind; disposition; in-
xclusive control of it is liable for injuries which he tention, win.
egligently suffers it to commit. This liability stands
pon the ground of actual or presumed negligence. Animo. With, from, or in, mind or in-
E the injury is committed while trespassing upon tention: as, in eo animo, ex animo, malo
md the owner is responsible for damage directly re- animo, quo animo, qq. v.
alting as a natural consequence. In other cases he
lay be liable although there is no trespass and the Auimus, animuin (objective form), mind
nim^l-is rightfully in its place; as where the injury or intention, animo, with intention or de-
omes from the vicious disposition or mischievous sign— caneellandi, of canceling; oapiendi,
abits of the animal of which the owner had previous of seizing or taking; dedicandi, of dedicate
ctual notice; or where, without • actual notice, the. ing or donating; defamandi, of defaming;
Isposition and habits are so universal among the
pecies that notice is presumed, as in the case of wild donandi, of giving; ferandi, of stealing;
nd savage beasts. The owner or keeper of such lucrandi, of gaining; manendi, of remain-
nimals, without actual or implied notice of their ing ; movandi, of staying, remaining ; pos-
haracter, is bound at his peril to keep them at all
sidendi, of possessing, appropriating; re-
imes and in all places properly secured, and is re- cipiendi, of receiving; republicandi, of
ponsible to any one who without fault in himself is
ajured/by them.^ republishing; revertendi, of returning; rev-
ocandi, of revoking : testandi, of making a
Animals fer(z w'otwrce, as a class, are known to be
lischievous; and the rule is well settled that whoever
will.
ndertakes to keep any such animal in a place of
niblic resort is or may be liable for injuries inflicted
ANNEX.i To put in permanent connec-
tion with ; to attach.
y it on a party who is without fault. It is not neces-
ary to aver negligence in the keeper, as the burden is As, to annex — a fixture to a freehold; a condition to
an estate; a covenant to land; one writing to another,
■pon the defendant to disprove that implied imputa- as, an exhibit to a petition or affidavit of claim; one
ion; it is enough to aver ferocity in the animal and
town to another town.^
ihowledge of that fact in the defendant. Cei'tain ani- Figuratively, a penalty or punishment is said to be
nals /ercE yiaturai may doubtless be domesticated to
uch an extent they may be classed with tame ani- annexed to an act.^
aals; but as they are prone to relapse into their Annex incidents. To show what things
rild habits and to become mischievous, the rule is are customarily treated as incidental and
hat if they do so, and the owner becomes notified, accessorial to the principal thing.*
hey will thereafter be viewed as not having been Actual annexation. Such annexation
horoughly and safely domesticated. ^ as exists in point of fact ; as, that of a fixture
See Accession; Agist; Alive; At Large; Bait, 2;
Uttle; Cruelty, 3; Damage, Feasant; Distress; to a freehold. Constructive annexation.
2stray; Fence; Game, 1; Implements; Levant; Exists in inference of law; as, that of a
Iaim, 2; Nuisance; Oyster; Partus; Pound, 2; deed to land, that of a key to a house.
iouND, 8 (2); Stock; 1; Team; Trespass; Vicious;
Vakton; Waiiranty, 2; Warren; Worry; Wound. A fixture is " annexed^ to the freehold " when fast-
ened to or connected with it. Mere juxtaposition, or
the laying of an object, however heai-y, on the free-
larrington v. Miles, 11 Kan. 483^84 (1873), oases; 15 Am. hold, does not amount to an annexation.*
lep. 356, cases; State v. Doe, 79 Ind. 9 (1881), cases; A deposition taken under a commission is. suffi-
Temison v. Southwestern E. Co., 75 Ga. 445 (1885).
1 Lyons v. Merrick, 105 Mass. 76 (1870), Colt, J. ; Hewes the northern district of New York and by the United
\ McNamara, 106 id. 281 (1871); Mann v. Weiand, 81* States Supreme Court. See also Twigg v. Eyland, 62
>a. 258-55 (1875), cases; Marble v. Ross, 124 Mass. 47-49 Md. 385-88 (1884), cases: 24 Am. Law Eeg. 191, 196-97,
1878), cases; Linnehan v. Sampson, 126 id. 510-11 oases; Meracle v. Down, 64 Wis. 323 (1885); Laherty v.
1879), cases ; Muller v. McKeeson, 73 N. Y. 198-204 (1878), Hogan, 18 Daly, 533 (1886); State v. Donahue. N. J. L.
lases; Lynch v. McNaUy, ih. 349 (1878); State u. Har- (1887), cases: 10 Atl. Eep. 150; 26 Am. Law Eeg. 773-78
Iman, 75 Me. 662 (1884); 56 Ala. 402; 49 Conn. 113; 69
(1887),
"If cases.
an ox gore a manor a woman that they die
}a. 447; 75 111. 141; 88 id. 132; 35 Ind. 178; 34 Mich. 283;
17 Pa. 331; 15 id,. 188; 51 Vt. 18; 38 Wis. 307; 2 Alb. L. . . and if the ox were wont to push with his horn
r. 101; 20 id,. 6, 104; 46 Am. E. 425. in time past, and it hath been testified to his owner
As to animals trespassing on a railroad track, see and he hath not kept him in, but that he hath killed
Cansas City, &c. E. Co. v. Kirksey, 48 Ark. 376 (1886), a man or a woman, the ox shall be stoned, and his
;ases. owner also shall be put to death." Exodus xxi
2 Congress & Empire Spring Co. v. Edgar, 99 U. S. 28,' 29.
■ F. annexer: L. annectere, to knit, tie, bind to;
31-66 (1878), Clifford, J., citing many cases. The plaint-
£f below, one Mrs. Edgar, while visiting Congress 2 100 U.S. 630; 74 Me. 180.
Spring park, Saratoga, N. Y., was, injured by a deer. s 1 Bl. Com. 415.
The jury awarded her $6,600 damages, and the judg- < 1 (Jreenl. Ev. § 894.
nent therefor was affirmed by the circuit court for = Merritt v. Judd, 14 CaJ. 64 (1859): 8 Sm. L. C. 296.
 ANNI 61 ANSWER

ciently annexed or connected to the commission by Since an annuity may be regarded as a legacy pay-
the envelope and official seal.' able by a yearly instalment, the word " legacy," as
Will annexed to letters. See Administer, 4. used in a will, may comprise the word annuity."
AM"NI; ANNO. See Annus. ANNUL. See Nuix; Repkal; Rescis-
ANNOYANCE. See Nuisance; Usrs,
sionVacate.
;
Sio utere, etc. ; Wahton. ANNUS. L. A year. ,
ANNITALLT. Applied to the payment Anni nubiles. Marriageable years.
of interest imports, not an undertaking to Infra annos ntlbiles. Within marriageable years —
pay at the end of a year, but at the end of at common law the age of twelve in girls."
every year during the period of time, fixed Anno Domini. In the year of our Lord.
Abbreviated A. D. See Abbreviations; Tear.
or contingent. 2
Annus luctus. The year of mourning.
A note payable in five years from date " with inter- Infra annum luctus. Within the year of mourn-
est annually" implies that the interest begins to run
from the making of the note.' See Annds; Year. ing— sometimes called the "widow's year."
Roman and early Saxon law ordained that a widow
ANNUITY.'' A yeai-ly sum stipulated should not remarry within a year after her husband's
to be paid to another in fee or for life or death: an inhibition which seems to have had refer-
years, and chargeable only on the person of ence to ascertaining the paternity of children.^
the grantor. 5 Supposed to be the origin also of a custom of wear-
ing mourning dress.
A yearly sum chargeable upon the person
Annus utilis. A serviceable year.
of the grantor. 6 Anni utiles. The years during which a right may
A " rent-charge " is a burden imposed upon lands.* be asserted; as, the period during which one is not
An annuity is a stated sum payable annually, unless
prevented by disability from availing himself of a
otherwise directed. It is neither "income" nor statute of limitations.
"profits," nor does it vary with them, though a cer-
tain fund may be provided out of which the smn is ANONYMOUS. Designates a case re-
payable.' See Ihdian. ported with the names of the parties omitted.
Anntdtant. One who is entitled to an Abbreviated Anon.
annuity. ANOTHER. One other ; any other
Altmiity table. A table exhibiting the Larceny of the "personal goods of the United
probable longevity of a person at any par- States" is within the words "personal goods of an-
ticular age. other "in the act of April 30, 1790.<
In the sense of another person, a co-party, is used
Based upon statistics, and of use in matters of life
Insurance and dower. See further Table, 4. in the titles of cases: as "A. B. u. C. I), and another."
Compare Alios, Alios.
Iiife annuity. An annuity limited upon ANSWER. Response, reply; defense.
another's life — the engagement or the sum
Compare Responderb.
of money promised.' 1. In the sense of a response to a written or
An annuity payable to the annuitant and his heirs
oral communication, see Letter, % ; Silence.
is a personal fee; neither curtesy nor dower are inci-
dents thereto. It is assignable, and bequeathable; and 3. A statement made in response to a
may be an asset in case of Insolvency. Kemedies for question or interrogation propounded to a
its non-payment are: debt, covenant, action of annuity suitor, witness, or garnishee, in the course
at common law.* It is also apportionable; and may
be paid to a widow in lieu of dower.'" of a judicial inquiry. See further Ques-
tion, 1.
' Savage v. Bircldiead, 20 Picli. 167 (1838); Shaw v. 3. The formal written statement made by
MoGregory, 105 Mass. 100 (1870). a defendant — to charges in a bill in equity,
' Sparhawk v. Wills, 6 Gray, 164 (1856); Westfleld v.
to a libel in admiralty or in divorce.
Westfleld. 19 S. C. 89-90 (1883). An answer is the most usual defense made to a bill
5 JNTinchell v. Coney, 54 Conn. 26, 30 (1886).
< L. L. annuitas: L. annuSy a year. inequity. It is given in upon oath; but where thei-e
are amicable defendants their answer may be taken
"Coke, Litt. 144 6; 3 Kent, 460; 24 N. J. E. 358; 33
Barb. 316. without oath by consent of the plaintiff. This method
«2B1. Com. 40; 10 Watts, 137; 33 Barb. 318. 10 id. 34 (1848); Lackawanna Iron, &c. Co.'s Case, 87
' Booth 1). Ammerman, 4 Bradf. 133-35 (1856), cases; N. J. E. 27 (1883).
Pearson v. Chace, 10 R. I. 456-57 (1873), cases; Bartlett 'Rudolph's Appeal, ante; Exp. M'Comb, 4 Bradf.
V. Slater, 53 Conn. 107 (1885), cases. 153 (1856); 12 N. Y. Leg. Obs. 182.
8 See 3 Bl. Com. 461. 2 1 Bl. Com. 436; 2 Kent, 78.
•3 Kent, 460,471; Coke, Litt. 385; 4 Ves. 763; 5 id. 8 1 Bl. Com. 467.
708. < United States v. Maxon, 6 Blatch. 363 (1866); 1 St. L.
'» Blight V. Blight, 51 Pa. 420 (1866); Rudolph's Appeal, 116.
 ANSAVER 63
ANY

of proceeding was borrowed from the ecclesiastical

AlfTAGOinSM. See Repeal; Repug-
courts.^ nant.
The parts of an answer are: the KiZe, which tells
whose answer it is and to whose bill; a reservation of ANTE. L. Before; hereinbefore.
advantages from any defects in the bill; the substance, Older form, anti, against. In compound words,
whether the facts be of personal knowledge or rest ante, anti, ant, an. Anglo-Saxon, <i«d-. Opposed,
upon Information and belief; and a general traverse post. Compare Anti; Supra.
to the whole bill. dftjite litem. See Lis, Ante, etc.
An answer must be responsive to all the material Ante natus. See Natds, Ante, etc.
allegations in the bill.' Antea. Formerly.
Unless the complainant have two witnesses, or one
witness and corroborative circumstances, he will not ANTECEDENT. See Said; Secukity.
be entitled to relief. The reason is, by calling upon the ANTE-DATE. See Date.
respondent to answer his allegations, the complainant ANTENUPTIAL. See Nuptial.
admits that the answer will be evidence — equal to the
testimony of any other witness ; so that he cannot pre-
ANTI. L. Against ; in opposition. Com-
vail unless the balance of proof is in his favor; to turn pare Ante.
As used in compounds illustrated by such words as
the scales, he must at least have circumstances which
corroborate such single adverse witness.^ anti-license, anti-liquor, anti-monopoly, anti-oleomar-
The answer must be responsive to the bill, and be garine, anti-prohibition (-ists), antirsaloon, anti-slavery,
sustained by the testimony of two witnesses, or of one ANTICIPATION.! Taking beforehand,
witness corroborated by circiunstances equivalent in or before a time.
weight to the testimony of another witness.* 1. Use in the present of what is to accrue
If the alleged facts are not known to the defendant
he should give his belief, if he has any; if none, he or to becomes one's own as income or profit ;
should say so and call for proof; otherwise he waives dealing with income before it is due.
that branch of the controversy. A mere statement More specifically, alienation by a married
that he is without loiowledge is not such admission as woman, who has a separate estate by gift, of
waives full proof. ^ income not yet accrued. 2 Compare Advance-
The answer of one defendant cannot be received
against another, except where one so succeeds the
ment; Trust, 1.
other that his right devolves on the latter, maldng 3. Objection to issuing a patent, or to a
theih privies in estate.^ patent granted, upon the ground that its
An answer in eqtdty must be signed by counsel. It subject-matter is identical with what is or
must also deny or confess the material parts of the was already known, whether patented or not.
bill; it may confess and avoid (g. v.) the facts. If one
Cases of anticipation are distinguished from cases
of these things is not done the answer may be ex- of patentability or ingenuity, and from cases of new
cepted to for insufficiency, and the defendant be com-
use, of substitution, and of combination. ^ See Pat-
pelled to put in a sufficient answer. A defendant ent, 2.
cannot pray anything but to be dismissed the comi;;
ANTIENT. See Ancient, 1.
if he has any relief to ask he must do it by a cross-bill.
After an answer is put in the plaintiff may amend his ANTIQUATED. See Stale.
biU; and the defendant must then answer afresh. If ANY. Compare A, 4 ; Either.
"the plaintiff finds sufficient confessed in the answer In the expression, whether the county will con-
upon which to ground a decree he may proceed to a struct "any road or bridge," extends to an indefinite
hearing upon the bill and answer; and in that case he
number.*
May mean every; thus, in a statute of descents,
takes the answer as true. Otherwise he replies gen-'
erally, averring his bill to be true, certain, and suffi- "any father or mother" may embrace as well the
cient, and the answer the reverse, as he is ready to case where all of a class have died in the life-time of
prove: to which the defendant rejoins, averring the the intestate as where only some one or more may
like on his side.'
See Admiraltt; Admission", 2; Allegation; Amend- have"For
died.'
the foregoing pui-poses or any of them"
ment, 1;Equity, Bill; Master, 4; Plea, 2; Sham. means, in effect, "for the foregoing pm-poses and
> 3 Bl. Com. 446-47. every of them."
" Any railroad* " may be taken dlsfcributively, in-
"Eoach V. Summers, 20 Wall. 170 (1873).
STobey v. Leonards, 2 Wall. 430 (1864): Moore v. tUl- 1 L. ante-capere, to take beforehand.
man, 80 Va. 310-11 (1885), oases; 9 Cranch, 160; 6 Wheat. = See 133 Mass. 174,175; 3 Gray, 405; 12 Gratt. 435;
468; 4 Cliff. 266-67, 458-69, cases; 107 U. S. 233; 13 Pa. 70.
9 Ga. '201 ; 1 Ld. Cas. Eq. 520; 11 Ves. 221 ; Lewin, Trusts'
<"Vigel V. Hopp, 104 U. S. 441 (1881); Morrison v. Dttrr, '
123 id. 518 (1887); 109 id. 103; 3 Story, Eq. § 1538. = Merwln, Pat. Invent.
12 3. S2.
5 Brown v. Pierce, 7 Wall. 211-13 (1868); 1 Johns. (3h. 'Dubuque County v. Dubuque, &c. E. Co., 4 Iowa 4
«107; 5 id. *248.
« Osborn v. United States Bank, 9 Wheat. 833 (IBM). " McComas 85
v. Amos, 273)Md. 141 (1868). '
(1 .
»3B1. Com. 447^9. « Davidson v. Dallas, 8 Cal. 2^9,(1857).
 APAET 63 APPARERE

eluding all railroads taken severally; as, in the ex- of providing for himself and family at that time, and
pres ion,any
" county may subscribe to the stoclc of keeping on hand for his and their reasonable wants,
any railroad in this State." i In view of their means, habits, and station in life, even
" Any former deceased husband " in § 4103, Rev. St. though such articles have not been actually worn.'
Ohio, refers to any husband who has died; the ex- See Bagqaoe; Exemption; Pabaphebnalia; Pin-
money.
pres ion isnot confined to the case where a widow has
had two or more husbands.'^ APPARENT. 1. Readily seen; evident,
APART. See AcKNOWLEDaMENT, 3 ; Sep- self-evident; manifest: as, error apparent
arate, 3.
upon the face of a record. See Apparere,
APARTMEWT. See Burglary ; House. De non, etc. ; Constat, 1 ; Error, 3 (3).
APEX. See Jus, Apex, etc. ; Vein. 3. Existing in looks or appearance, and,
APOSTLE.3 In English admiralty prac- perhaps, of tener not real than true and real ;
tice the copy of the record in an appealed opposed to actual: as, apparent — authority,
case which is sent to the appellate tribunal. right or title; also opposed to non-appar-
APOTHECARY. See Druggist; Mer- ent: as, an apparent or non-apparent ease-
chant. ment, q, V.
Any person who keeps a shop or building where
An apparent right of possession is defeated
medicines are compounded or prepared according to
the prescriptions of physicians, or where medicines by proof of a better, i. e., an actual, right.2
When the owner of property clothes another with
are sold.*
the apparent power of disposition a third party who
APPARATUS. See Appendage; Pro-
is thereby induced to deal with that other will be pro-
cess, 2.
tected as against the owner.*
APPAREL. In exemption and duties A principal is held for the act of his agent clothed
laws "apparel," "wearing apparel," and with apparent authority.*
The holder of mercantile paper is the apparent
"necessary wearing apparel" have their owner thereof.
popular import.'
Cloth actually appropriated thereto may be re- Apparent danger. In the law of justi-
fiable homicide such overt, actual demon-
garded as apparel.*
In September, 1878, William Astor and family ar- stration, byconduct and acts, of a design to
rived home from Europe, bringing with them wearing
take life or to do gi-eat personal injury as
apparel bought there for their use, to be worn during
makes killing apparently necessary.^
the season then approaching, and in quantity not ex-
cessive for persons of their means, habits*, and station Apparent good order. Shipped "in apparent
In life. A portion of the articles not having been good order," in a bill of lading, does not change the
legal effect of the bill. If a loss occurs the carrier is
worn duties were exacted on them, and the circuit
not precluded from showing that it proceeded from a
court confirmed the action of the collector. The Su-
preme Court, reversing the lower court, held that latent defect in the package."
APPARERE. L, To come into sight:
under § 2505, Rev. St., exempting from duty " wearing
apparel in actual use and other personal effects not to appear. Compare Constat, 1.
merchandise," such articles as fidfiU the following De non apparentibus et non exLstent-
conditions are not subject to duty, viz.: 1, wearing ap- ibus, eadem est ratio. Concerning things
parel owned by the passenger and in condition to be
worn at once without further manufacture ; 2, apparel not appearing and things not existing, the
brotight with Tiim as passenger and intended for use rule (reason, conclusion) is the same. Quod
by himself or his family who accompany him, not in- non apparet, non est. What does not ap-
tended for sale, and not imported for other persons
or to be given away; 3, apparel suitable for the season pear does not exist.
of the year immediately approaching at the time of A thing which is not made to appear is re-
arrival; 4, apparel not exceeding in quantity, quality, garded as if it could not be made to appear
or value what the passenger is in the habit ordinarily and did not therefore exist.
The record of a court of limited or inferior jurisdic-
1 County of Chicot v. Lewis, 103 U. S. 167 tion must show jurisdiction rightfully exercised; ' but
2 Anderson v. Gilchrist, 44 Ohio St. 440 (1886). See
also 41 N. J. E. 659; 9 S. C. 117. 1 Astor V. Merritt, 111 U. S. 803 (1884), Blatchtord, J.
= Gk. apostolein', to send away. 2 2 Bl. Com. 196.
* Revenue Act, 13 July, 1866, § 9: 14 St. L. 119. 3 46 N. Y. 335; 101 U. S. 575.
sMaillard v. Lawrence, 16 How. 261 (1853); Greenleaf * 96 U. S. 86.
V. Goodrich, 101 U. S. 285 (1879); Be Steele, 8 Flip.
' [Evans v. State, 44 Miss. 773 (1870), SimraU, J. ; Wes-
325-26 (1879), cases.
ley V. State, 37 id. 349 (1859).
•Richardson v. Buswell, 10 Mete. '507 (1845); 33 Me. • The Oriflamme, 1 Saw. 178 (1870).
535; 55 Barb. 389. '2How. 341; 13 id. 253.
 APPEAL 64 APPEA

in courts of record of general jurisdietlon all things

subordinate officials exercise " supervisory " ra
are presumed to have been rightly done.i
than appellate power in the sense in which " a]
A fact essential to the exercise, by a court of gen- late " is employed in defining the powers of cour
eral iurisdiction, of a special power conferred upon
it, must appear upon the face of the record.^ See
further Pr^sumere, Omnia, etc. Appeal {appellatio in civil law) is defi
justice.^
ab inferioris judicis sententia ad superio
An affidavit is good for what it shows upon it-s face.^
A deed irregularly transcribed is not a record.* provocare: the removal of a cause from
An objection not of record will be disregarded. sentence of an inferior to a superior juc
The contents of a doctmient in dispute must be or, as Blackstone expresses it, a compli
proved.* to a superior court of an injustice done
APPEAL.6 1. To apply to, as for relief; an inferior court. ^
also, the application or action itself. Whence The remedy as known in England ife in a g
appealable; as, an appealable order. measure confined to causes in equity, ecclesiast
May denote an application for relief to be and admiralty jurisdiction: as to each of whicl
obtained by a consideration or review of jury intervenes. In courts proceeding accordin
the civil law an appeal removes the whole of
previous action : as, an appeal from listers to proceedings and usually, though not invariably, O]
the selectmen of a town upon an alleged the facts as well as the law to re-examination. 2
grievous assessment.^ A process of civil law origin. Removes a ci
3. To remove a cause to a higher court for entirely, subjecting the fact and the law to review
review and retrial; also, the proceeding in retrial. A " writ of error, ' ' which is of common-law
gin, removes nothing for re-examination but the li
itself considered. Whfie perhaps in most States an appeal fro:
Appeals are allowed in suits in equity, proceedings court of general jurisdiction is in the nature of a
in courts of probate, orphans' or surrogate's courts, of error, — whereby the appellate court passes v
and in admiralty; from awards of arbitrators and the record as to facts and law, does not hear a
referees; from municipal and tax assessments; on tional evidence, but confines its adjudication to er
summary proceediugs in criminal matters determined appearmg upon the record, — in Ohio the appeal 11
by committing magistrates; and in numerous other vacates without revisal all proceedings, and the t
matters of code or statutory regulation. is heard upon the same or other pleadings and u
Appeal lies to a final decree or judgment; in a few such testimony as may be offered in that court,
cases, also, upon an interlocutory order: as, in review subject is taken up de novo, as if the cause had n(
of a comnaitment when authority in the lower court
to act is disputed. 3 A £nal
been tried.-*decree in chancery is taken to a higher ct
Appellant. He who takes an appeal. for review by appeal.*
Appellee. The defendant in an appealed The object of removing a cause from a justic(
case. the peace by an appeal is to obtain a new trial, u
the same issue, in the higher court."
Appellate. Having cognizance of ap- In States which have adopted the name " appe
pealed cases ; accessible by appeal ; concern- for the review allowed of judgments governed by C(
ing the judicial review of decisions: as, of procedure, the' proceeding is subject to so m
statutory regulation, and in effect is so assimilate
appellate — court, jurisdiction, power.
"writ of error," that it seems no longer possibl
Appellate jurisdiction, q. v. Power to re- give a descriptive definition which shall be correct
vise the decisions Of the courts only, not the the various States and distinguish the two mode
determinations of all inferior ofBcers and
review.'
If a party to a suit is in no manner affected by v
boards.'
The secretary of the interior and the commissioner is decided he cannot be said to be a party to the
of the general land ofRce in revising the acts of cree, and, therefore, cannot appeal the case.'
1 Hestres v. Brennan, 50 Cal. 217 (1875); E. S. §§
> 11 Wall. 899-301. 453, 2478.
a Chesterfield County v. Hall, 80 Va. SZi (188S). " United States v. Wonson, 1 Gall. 13 (1812), Stoi-;
s Lord V. Ocean Bank, 20 Pa. 384 (1863). s Wisoart v. Dauchy, 3 Ball. 327 (1796), Elswo
••McNitt V. Turner, 16 Wall. 361 (1873). C. J. See also United States v. Goodwin, 7 Oranch
"See generally Broom, Max. 163, 166; 103 TJ. S. 802, (1812); 22 How. 138; 103 U. S. 611. As to reviev
42t; 104 id. 439; 4 Mass. 685; 8 id. 401; 5S Pa. 57; 76 Va. facts in actions at lalw, see 22 Am. Law Eev. 26
301.
(1888), cases.
* L. appellare, to call upon, address. * Mason v. Alexander, 44 Ohio St. 328 (1886), Spea
' Leach v. Blalcely, 34 Vt. 136 (1861). ' McCollum V. Eager, 2 How. 61 (1844); 21 id. 445
'Exp. Virginia, 100 U. S. 342 (1879). ' Bawson v. Adams, 17 Johns. *13l (1819).
» See Hubbell u MoCourt, 44 Wis. 587 (1878), cases; ' [Abbott's Law Diet. See 13 Mo. Ap. 186; 30 Minn.
Auditor v. Atkinson, &c. E. Co., 6 Kan. 505 (1870); ' Farmers' Loan, &o. Co. u Waterman, 106 U S
Piqua Bank v. Knoup, ftOhio St. 391 (1856). (1883); 108 id. 168.
 65
APPEAR APPEAR

Appeal bond. An obligation, with sure- thereabout, — so far, at least, as the party is
ties, given by an appellant in order to remove interested.!
a cause by appeal, and conditioned for the Appearance. 1. Being apparent, q. v.
payment of damages and costs if he fails to 2. Having the form or semblance of. See
Color, 3 ; Facies.
" prosecute the appeal with effect," q. v.
If the judgment is afBrmed the sureties, propria 3. Coming into court as a party to a suit ;
vigore, become liable to the same extent as the prin-
cipal for the damages and costs. In an appeal to a
presence in court as a suitor. Used, particu-
still higher court new sureties are, required.^ larly, of a defendant's presence, in person or
An appeal bond, or a bond in error, is a formal in- by, attorney.2 Opposed, non-appearance.
strument required and governed by the law, and, by An entry of appearance upon the record of a cause
nearly a century's use, has become a formula in legal is to be interpreted by the practice of the particular
proceedings, with a fixed and definite meaning. As court. Whatever is held to be a submission to its au-
the important right of appeal is greatly affected by it, thority in the caxise, whether coerced or voluntary,
it is not allowable, in practice, by a change in phrase- will be deemed an appearance.'
ology, to give it an effect contrary to what the statutes Made by entering of record the name of the party
intend — as, in Federal practice, the acts of 1789 and or his counsel, and at the request of either; also, by
1803: R. S. §§ 1000, 1007, 1010, 1018. It would be against entering bail, answer, demurrer, or by any other act
the policy of the law to suffer such deviations and ir- admitting that the defendant is in court, submitting to
regularities. The rule followed in some States is a the jurisdiction. Originally, when pleadings were
sound one, that if the condition of the bond substan- oral, made by actual presence in court.
tially conforms to the requirements of the statutes it is An appearance may be general or common,
suificient, though it contain variations of language; or special or conditional, according as it is
and that if further conditions be superadded the bond unqualified or unrestricted, or made for a
is not therefore invalid, so far as it is supported by
the statute, but only as to the superadded condi- specific purpose — as, to make a motion, or ,
is coupled with a condition; de bene esse,
tions.'*
Court of appeals. Any court ordained when provisional on an event; voluntary,
to review the final decrees of another court ; compulsory, or optional, according as it is
in several States the tribunal of last resort. entered freely, is compelled by plaintiff's ac-
The highest court in Kentucky, Maryland, and New tion, or is made by one not obliged to appeal',
York. In Virginia and West Virginia it is known as but who applies to do so, to save a right ; in
ttie "supreme court of appeals;" in Delaware and person, by attorney, by next friend, by guard-
New Jersey, as the " court of errors and appeals " In ian, or by committee, according as the party
Texas the court is inferior to the supreme court. In
England designates one of the two subdivisions of the himself defends, or employs or is represented
supreme court of judicature as constituted by the acts by another ; pro hac vice, when in some spe-
of 1873 and 1875. cial relation; corporal, when by defendant
See Error, 2 (2, 3), Court of. Writ of; Finai., 3;
Paper, 5; Supersedeas. in person.
Corporal appearance is generally required in a
3. In old English law an accusation by a criminal trial. In modern practice In civil actions
private subject against another of a heinous appearing may be constructive or figurative.
crime, demanding punishment on account of An appearance is to be entered by a cer-
the particular injury suffered, rather than tain day, called the appearance day; to
for the offense against the public. which day writs are made returnable. It is
Appellor: the accuser; appellee: the "general" when it is the stated day ordi-
accused.
Originated, probably, when a private pecuniary narily observed; and " special " when some
other day, as, the day appointed in a par-
satisfaction, called toeregild, was paid to the party in-
ticular case.
jured or to his relatives to expiate enormous crimes.' On every return day in the term the person, at
Abolished in 1819, after the case of Ashfard v. Thorn-
ton. See Battel. common law, had three days of grace beyond the day
named in the writ in which to appear, and if he ap-
APPEAR. The right to ' ' appear " before peared on the fourth day inclusive, quarto die post, it
a tribunal engaged in the transaction of par-
ticular business implies the right to be heard
» Dundee Mortgage Trust Invest. Co. v. Charlton, 32
> Babbitt v. Finn, 101 U. S. 16, 13 (1879); BeaU v. New F. R. 194 (1887).
Mexico, 16 Wall. 539 (1872). a See Schroeder v. Lahrman, 26 Minn. 88 (1879); Lar-
= Kountze v. Omaha Hotel Co., 107 U. S. 395-96 (1882), rabee v. Larrabee, 33 Me. 102 (1851).
cases; 11 Lea, 72. 'Cooley V. Lawrence, 5 Duer, 610 (1855); Grigg v.
» 4 Bl. Com. 312-17; 110 U. S. 526. Gilman, 54 AJa. 430 (1875).
(5)
 APPENDAGE 60
APPLICATION

was sufficient. Therefore, usually the court did not

thing as its principal and passes as an inci
sit till the fourth or appearance day.^
dent to the latter, i
An appearance is also entered in a book
Or, of a thing used with, related to, or de
called the appearance docket, which exhibits,
pendent upon, another thing more worthy
in a brief abstract, all the proceedings had
in a cause. and agreeing in nature and quality with tha)
other. 2 See Appendage ; Appuetenancb.
For failure to appear after legal notice given, in
cases, judgment may be taken " in default " of an ap-
APPEETAIN. One thing may apper-
pearance. tain to another without adjoining or touch-
On cause shown, by petition to the court, an attor- ing it.
ney may be penjaitted to *' withdraw " his appear- "Proof that pieces of land adjoin would not be prod
ance, timely notice having first been given to the that one appertained to the other. As a descriptive
client.2 word in a deed "appertaining" imports use, occu-
An appearance by a person admitted to practice is
pancy; "adjoining " imports contiguity.^ See An-.
received as evidence of his authority; otherwise as to joining; Appubtehance.
an attorney in fact.^ APPLICATION. 1. A written request,
A general appearance waives all questions as to
the service of process, and is, moreover, equivalent to more or less formal, presented to- a private
a personal service. Its effect is not disturbed by the person or to an official for the favorable ex-
withdrawal of the attorney. The question of juris- ercise of his authority or discretion : as, an
diction alone is saved.*
But, ,under the privilege of a special appearance, a application for insurance* (g. v.), for 'an
order of court, for a pardon, for remission
person cannot avail himself of the advantage of a of a fine.
general appearance.^
See Abide* Venire. 2. Devoting, appropriating to an end or
APPEWDAGE. See Appendant; Inci- demand; also, the use or purpose itself to
dentRailroad.
; which a thing or fund has been set apart,
Where the question was whether a stereoscope, distributed, or paid.
with views, was a "necessary appendage " to a school- Misapplication. Improper or unlawful
house, the court said that the words quoted, as used in
disposition or application.
a statute, referred to things connected with the build-
It is not sufficient to aver simply that a defendant
ing or designed to render it suitable for use as a school-
"willfully misapplied" trust funds: there must be
house.^ averments to show how the application was made and
Under the same statute charts and maps to be hung
that it was an unlawful one.^
upon the walls may be called *' appendages " or " ap-
Application of payments. The appli-
paratus."'
Certainly a well would be a necessary appendage; ^ cation of a general payment of money to the
and, also, a fence aroimd the school building." discharge of one or more of several demands.
APPENDAITT.H' Annexed to another The right must be exercised within a reasonable
and superior thing; belonging to something time after the payment and by an act which indicates
as the principal thing ; also, the thing itself an intention to appropriate. Where neither party has
exercised the right the law presumes that the debtor
thus attached : as, an incorporeal inheritance intended to pay in the way which, at the time, was
to another inheritance, one powen to another most to his advantage. Where, however, the interest
of the debtor could not be promoted by any particular
.power. 11 appropriation there is no ground for a presumption of
Said of a thing which belongs to another
any intention on his part, and the law then presumes
1 3 Bl. Com. 278, 290. that the payment -ivas received in the way most ad-
J" United States v. Yates, 6 How. 608 (1848). vantageous tothe creditor."*
The rule settled by the Supreme Court of the United
•■' See Osbom v. United §tates Bank, 9 Wheat. 830
(1884); Hill v. Mendenhall, 21 Wall. 454 (1874), States is that the debtor, or the party paying the
<Eldred v. Michigan Ins. Bank, 17 Wall. 651 (1873): money, may, if he chooses, direct its appropriation; if
Creighton v. Kerr, 20 id. 12 (1873); 6 How. 608; 29 Kan! he fails so to do the right then devolves upon the cred-
683; 29 Minn. 46.
' National Furnace Co. -u. Moline Iron Works, 18 > [Meek v. Breckenridge, 89 Ohio St. 448 (1876).
F. R. 863 (1884). = Leonard v. White, 7 Mass. 8 (1810) ; Coke, Litt. 121 6,
« School District v. Perkins, 21 Kan. 537 (1879). 122 a; 3 N. H. 192.
' School District v. Swayze, 29 Kan. 216 (1883). ' Miller v. Mann, 65 Vt. 479 (1882), Veazey, J.
e Hemme v. School District, 30 Kan. 381 (1883). « See 85 Minn. 639; 133 Mass. 85.
» Creager v. Wright School District, Sup. Ct. Mich. ' United States v. Britton, 107 U. S. 669 (1838); R. S.
(1886).
^^ L. ad-pendere^ to hang to. » Harker v. Conrad, 12 S. & R. 304 (1884), Gibson, J. ;
" [4 Kent, 816, 404; 2 Bl. Com. 33.] Pierce «. Sweet, 33 Pa. 157 (1859).
 APPOINTMENT 67 APPORTIONMENT

itor; and it he fails in this respect the law will moke Where a person, having a general power of ap-
the application according to its own notions of justice. pointment, by deed or by will, executes it, the
Neither party can make it after a controversy upon property is deemed in equity a part of his assets,
the subjecthas arisen between them,^ subject to the demands of his creditors in prefer-
APPOINTMENT. Fixing, establishing : ence to the claims of voluntary appointees or of legar
limitation, selection, designation.
1. Selection for the duties of an office or niusory appointment. Allotment of a
tees.i
place of trust. nominal, not of a substantial, interest.^
The rule at common law was to require some allot-
Appointee. The person so designated, ment to each person where several appointees were
until qualified. intended. But the rule in equity requires a real, sub-
A commission, regularly issued, is conclusive evi- stantial portion in each appointee — a merely nominal
dence t)f an appointment." allotnlent being viewed not only as illusory but as
Where a common council voted to ballot for a mu- fraudulent.*
nicipal officer, in pursuance of a power conferred by A devise to a corporation for a charitable use is an
charter to " appoint " such officer, it was held that the appointment rather than a bequest.*
ballot taken was intended to be an election, that is, an The donee must be competent to dispose of an
appointment. 3 estate of his own In like manner. All donees, or their
Appointments to office are intrinsically executive survivors, must join in executing the power. The
acts, whether made by a court, a municipal council, donor's intention is to be strictly observed. A partial
an executive officer, or other person or body. A par- execution may be upheld. The estate vests in the ap-
ticular appointment is complete when the last act pointee as if conveyed immediately by the donor. ^
reauired of the appointing power is performed." See See further Power, 2; Use, 3.
Office, 1 ; Resignation. APPORTIONMENT. A division into
2. Exercise of the right to designate the
shares, portions or proportions; distribution
person who is to take the use of realty.'' into proportionate parts.
An authority given to another to be exer- Division of a fund, or property, or other
cised over property in a manner and to an
subject-matter, in shares proportioned to dif-
extent which he would not otherwise possess.^ ferent demands, or appropriate to satisfy
Also Qalled power of appointment.
rival claims.* Whence non-apportionable,
Appointor. He who executes the power ;
the donee. He who confers the power is the unapportionable.
Thus, we have the apportionment — of an annuity
donor. Appointee. He in whose favor the to a part of the year; of a contract, not entire, to the
power is executed.* part performed; of dividends, or money, in stocks;'
General appointment. Such appoint- of sums payable toward the support or removal
ment as enables the donee to name, as ap- of an incumbrance; of freight earned previoiisly to a
disaster to an abandoned ship;* of loss and damage
pointee, whom he pleases — even himself. caused by a collision of vessels, both parties being in
Special appointment. Such as restricts fault; » of rent, where the leasehold or reversion is
the donee to naming one or more appointees transferred, partitioned, levied on for debt, or setr
from among particular persons. off in dower, or where there are several assignees,
The latter dates from the creation of the power; or the premises become untenantable; i" of Repre-
the former from its exercise. sentatives, decennially, according to the increase of
population;" of corporate shares, when more have
been subscribed for than the charter allows to be
> Nat. Bank of the Commonwealth u. Mechanics'
Nat. Bank, 94 U. S. 439 (1876), cases; Nichols v.
Knowles, 17 F. B. 495-96 (1881), cases; Bank of Cali- issued."'
fornia V.Webb, 94 N. Y. 472 (1884), eases; McCurdy v. 1 Brandies v. Cochrane, 112 U. S. 352 (1884), cases;
Middleton, 82 Ala. 137 (1886), cases; Sanborn r. Stark, Sewale v. Wilmer, 132 Mass. 134-35 (1882), cases.
31 F; E. 18 (1887); 21 Cent. Law J. 473-79 (1885), cases. 2 See 3 Kent, 843; In^aham v. Meade, 3 Wall. Jr. 40
See also 9 Wheat. 720; 6 Cranch, 8; 1 Mass. 323; 88 Ind. (1855).
68-69, cases; 62 Miss. 8, 121, 500; 7 Oreg. 228; 59 Tex. » Sugden, Powers, 489; 4 Kent, 342.
< 2 Bl. Com. 376.
649; 55 Vt. 464, 543; 22 F. E. 570; 13 Am. Dec. 50.5.
cases; 14 id. 694, cases; 1 Story, Eq. S 459 6; 2 Pars. »4 Kent, 324; 2 Stoiy, Eq. §§ 1061-63; 2 Washb. B. P.
Contr. 629. 317-22, 298, 337.
2 United States v. Le Baron, 19 How. 79, 73 (1856); ' Abbott's Law Diet.
' 3 Kent, 470.
1 Cranch, 137; 10 Pet. 313; 10 Oreg. 520. 8 3 Kent, 333.
» State ex rel. Coogan v. Barbour, 63 Conn. 83, 85-90
(1885), cases. » 93 U. S. 302; 10 Bened. 658.
« [2 Washb. Real Prop. 302. 1" 3 Kent, 469-71.
» [Blagge V. Miles, 1 Story, 442 (1841), Story, J. 11 1 Kent, 230; Act 25 Feb. 1882: 22 St. L. 5.
• [4 Kent, 316.] 121 Johns. Ch. 18; 1 Edw. 308.
 APPEAISE
APPROBARI

At common law periodical payments, due at set

3. in custody.'' f
times, were not apportionable.^ detaining 3, a3 person already
Arrest, ; Attach,
Guilt and negligence are unapportionable. See
Contribution. APPEENTICE.2 A learner: a spec
APPRAISE.2 To value; to estimate at of servant usually "bound" for a term
a price, by authority of law. years, by indenture, to serve his master a
Appraisement; appraisal; apprizal. be maintained and instructed by him.'
The worth of property as estimated by an One bound to service for a term of ye:
authorized person ; also the act or proceeding in order to learn a trade or art.* Wher
by which the estimate is made. apprenticeship.
in a verbal sense. "Apprentice" is aLso us
An " apprizal " of property signifies a valua-
tion of it, an estimation of its value, unless " A young person bound by indenture ti
tradesman or artificer who, upon certi
some other sense is plainly indica'ed.^
Appraisements are made — o£ the goods of a de- covenants, is to teach him his mystery
ceased; of articles set apart for the share or exemp- trade. " To constitutean apprenticeship son
tion of a widow; of the assets of an insolvent who has
assigned his property for the benefit of creditors or thing is to be learned: this is the charact
who claims exemption of his statutory amomit under istic mark of the service to be performed.'
proceedings in execution of a judgment; of property Ex vi termini implies service in some specific p
taken for public uses; of goods distrained for rent; fession, trade, or employment.* ,
of the goods of an importer. This form of binding is usually done to persons
trade in order to learn their art and mystery: bu
Appraiser. One authorized to determine
may be done to husbandmen and others. The child:
the value of an article or articles of property. of poor persons, till twenty-one years of age, may
See Indifferent, 1. apprenticed by the overseers of the poor to such
Mercantile appraiser. An officer whose are thought fitting; and these in turn maybe cc
duty it is to ascertain the amount of business
The to" teacher
pelled " is called the Tnaster. The contr
take them.''
done by persons in the different mercantile is signed by the immediate parties. The period c
pursuits and to regulate the tax or license tiniies till twenty-one in a male and eighteen ii
fees to be paid by them on their business. female, or longer by consent. The master takes
Government appraiser. The incumbent of place of the parent. He may discharge the apprent
for reasonable cause. Each party is supposed to wi
a permanent office, selected by a collector of
for the other's interest. At common law the contr
customs, and charged with the duty of valu- is not assignable.^
ing dutiable merchandise. Apprenticeship had its origin in days when the v!
Merchant appraiser. An appraiser se- ous trades were encompassed with restrictions as
the persons who might enter them. Modem custo]
lected by an importer to act with a govern-
which have so greatly relaxed the rules governing '
ment appraiser.* exercise of the arts and trades, have correspondini
Re-apprais,er. One chosen to make a sec- modified the strict characteristics of apprentlceshi
ond appraisement of dutiable goods. Local statutes and decisions should be consultec
The importer has a right to be present when re- APPRIZAL. See Appraise.
appraisers view his goods. The re-appraisement is an APPROACH. See BRmaE.
apprizal on view, and the re-appraisers may ascertain APPROBARE. L. To approve; lit
the value of the merchandise by reasonable means,
and determine what witnesses, if any, they will ex- ally, to test, try, prove good.
amine. The merchant appraiser who may be called Qtil approbat, non reprobat. He w
in is not an " ofttcer " within the meaning of Art. n of approves cannot reject.
the Constitution; and the exaction of a fee for his One cannot both accept and reject the same thi
compensation is not authorized. ^ One may not both affirm and deny.
APPKEHENSIOW.e Strictly, seizing
and taking hold of a man, but may apply to ' Begina v. Weil, 47 L. T. B. 633 (1883); s. c. 15 Eep. ■
'F. apprendre, to learn: L. apprehendere, to
' 3 Kent, 469. hold of, grasp.
^F. apreiser, to value: L. pretium^ price. = [1 Bl. Com. 436; 3 id. 26.
» Cocheco Manuf . Company v. Strafford, 51 N. H, 483 ' [2 Kent, 361.
(1871), Doe, J. « Hopewell v. Amwell, 3 N. J. L. •425 (1808). See i
* Belcher v. Linn, 34 How. 532 (1860): E. S. |§ 3609-10, State ex reV. v. Jones, 16 Fla. 316-18 (1878).
2946. See also Oelbermann v. Merritt, 19 F. B. 409 « Be Goodenough, 19 Wis. 317 (1865), Dixon, C. J.
(1884); Oelbermann v. Merritt, 12.3 U. S. 356 (1887). ' 1 Bl. Com. 426.
' AufE Mordt v. Hedden, 30 ¥. E. 360 (1886), Wheeler, J. 8 2 Kent, 261 ; 1 Bl. Com. 460.
" L. adrprehendere, to lay hold of. ' Abbott's Law Diet.
 APPROBATE 69 APPEOVE

APPROBATE. See Allegaee, AUe- APPROPRIATE. 2, adj. Adapted to the

gans conti-aria, etc. purpose : proper, fit, suitable, q. v. : as, the ap-
APPROPRIATE.! 1, V. (1) To take to propriate departments of the government ; i
one's self ; to take as one's own — for one's appropriate legislation ; 2 an appropriate rem-
self : 2 as, to appropriate running water ; to edy "or decree.-'
appropriate the personalty of another is a con- APPROVE. 1. To accept as good or suffi-
version, an embezzlement, or larceny, qq. v. cient for the purpose intended. Opposed,
Whence appropriation, appropriator, appro- disapprove. See Approbarb.
priable. Compare Aoqtjire ; Occupy. Public sales are made on "approved, indorsed
To appropriate another's goods against his will is to notes " when the purchaser gives his promissoiy note
take them from him to one's self with or without vio- for the amount of a purchase. Indorsed by another
lence.' See Conversion, 3. and approved by the seller. The approval of the
note ratifies the sale."
(3) To adopt as distinctively one's own : as, See Sale, On approval; Ratification.
to appropriate a design or symbol for a trade- 2. To deem of sufficient security: as, to
mark,* q. V.
(3) To reserve for a distinct purpose; to approve a bond.
" Approved " indorsed on a bond by the judge of a
destine to a particular end : as, to appropriate court does not necessarily import more than that the
property to an exclusive use, or a fund to bond is deemed a sufficient, security to be accepted. It
the discharge of special demand. does not include a direction that the bond is to stand in
A space is not appropriated to the use of passengers lieu of another bond and that the other is discharged."
on board a vessel as long as one person is allowed an 3. To affirm as lawful and proper ; to give
individual use of it.^ ,iudicial sanction to : as, to approve the report
"Appropriated lands," in a pre-emption law: land of an auditor, a master, or trjustee. See Con-
applied to some' specific use or piu:pose by virtue of firmation, 3.
law.*
4. To concur in the propriety or expediency,
In the expression " appropriate property of any in-
dividual to public uses," the term embraces every the legality or constitutionality of ; to give
mode by which property may be applied to the use of
executive sanction to : as, to approve an or-
the public. Whatever exists which public necessity
dinance proposed by the councils of a city,
demands may be thus appropriated.' See further
Domain, 1, Eminent. to approve an act of an Assembly or of Con-
A direction to an executor to " appropriate " funds gress. See Act, 3 ; Pass, 3 ; Veto.
is an implication that he is assumed to hold that which 5. To confess a felony or treason and ac-
he is directed to appropriate." cuse another as accomplice in order to obtain
'* Appropriations " in a will means a designation to
a particular exclusive use.* a pardon.
The " appropriation of public money " is the dispo- Approvement. The confession made in
sition of public moneys from the treasury by law ; » — such case, and the act of making it.
an authority from the legislatm-e, given at the proper Approver. He who makes such a con-
time and in legal form, to the proper officers, to apply
sums of mone.y out of that which may be in the treas-
fession.
ury in a given year to specified objects or demands The accused is the "appellee."
When a person indicted for treason or felony was
against the State.'" arraigned he might confess the charge before plea
While, as referring to funds, "appropriate" and
" apply " are often interchanged, " appropriate " may pleaded and appeal or accuse some other as his ac-
complice, in order to obtain a pardon. This, allowed
mean rather to decide that a certain fund shall be de-
in capital cases only, was equivalent to an indictment,
voted to a specific purpose, and " apply " to make the as the appellee was required to answer the charge. It
expenditure in fact. See further Application, 2.
proven guilty the judgment was against the appellee;
and the approver was entitled to a pardon ex debito
1 L. appropriare, to make one's own — proprius. justitioB; but if the appellee was acquitted the judg-
'See 8 Oreg. lOi; 9 id. 231. ment was that the approver be condemned.' See
3 [Waters v. United States, 4 Ct. CI. 393 (1868).
Accomplice.
<100U. S. 95; 101 id. 53.
'United States v. Nicholson, 8 Saw. 164 (1882); R. S. 1 101 U. S. 770.
a 100 U. S. 345.
^4253. 3 100 U. S. 311.
« McConneU v. Wilcox, 2 HI. 380, 359 (1837).
< 101 U. S. 338.
' Boston, SCO. B. Corporation v. Salem, &c. E. Com-
pany, 8Gray, 35 (1854), Shaw, C. J. •Mills V. Hunt, 80 Wend. 435 (18-33); Guier v. Page,
8 Blake v. Dexter, 12 Cush. 668 (1853), Shaw, C. J. 4 S. & R. 1 (1818).
• Whitehead v. Gibbons, 10 N. .). E. 235 (1854). 8 United States v. Haynes, 9 Bened. 25 (1877).
'" Ristine v. State, 80 Ind. 333 (1863), Perkins, J. ' 4 Bl. Com. 330; Rex v. Rudd, 1 Cowp. 335 (1775);
 APPURTENANCE
70 AQUA
APPUE.TElfANCE.1 A right connected lating its capacity, by superficial measurement, or 1
with the enjoyment or use of another thing a general description, as for a pond, a water-cours
etc. His action must be for so much land coven
as principal; also, the thing itself out of
With water. 1
which the right grows as an incident.
Aqua currit, et debet currere,ut cuj
App-ortenant. Connected with or per- rere solebat. Water runs and should ru
taining to a thing of superior nature. as it has been used to run : a running streai
In strict legal sense land can never be appurtenant is to be let flow in its channel as nature hi
to land. A thing to be appurtenant to another thing
must be of a different and congruous nature; such as provided.
an easement or servitude, or some collateral incident Running water must be used according 1
belonging to and for the benefit of the land. In Coke, the order of nature. Thus, rain-water an
Litt. ISl b, it is said that nothing can be appurtenant
unless the thing agrees in quality and nature to the drainage are to follow nature's channel — tl
thing whereunto it appurtaineth; as a thing corporeal course jn which the water, peaceably an
properly cannot be appurtenant to a thing corporeal, openly, has long been permitted to run.^
nor a thing incorporeal to a thing incorporeal. There By the common law all riparian owners on tl
are many other authorities to the same effect. In a same stream have an equality of right to the use t
case, therefore, where the words of a grant pass land the water as it naturally flows, in quality and withoi
" with its appurtenances " the law, in the absence of diminution in quantity except as created by a reaso:
controlling words, will deem "appurtenances " to he able use for proper purposes. Hence, one may m
used in its technical sense; and that construction will throw back, nor divert, nor unreasonably detain, n(
not be displaced untU it is made manifest from other deteriorate or poison the water. But exclusive use f<
parts of the grant that some other thing was actually twenty years may constitute a conclusive presumptio
intended.^
Something appertaining to another thing of Aright.
riparian
3 owner on a stream must so use his rigl
as not to injure the concomitant right of anothf
as principal, and passing as an incident to owner, and subject to statutory regulations. Whei
such principal. 3 he owns land on one side his use extends to the middJ
A right not connected with the enjoyment or use of thread of the stream. The right includes a right t
a parcel pf land cannot be annexed as an incident to erect mill dams and rights of fishery — both whic
that land so as to become appurtenant to it.* have their source in the ownership of the soil.*
The expression " appurtenances of a ship " is not A land owner has no better right to stop the flow c
to be construed with reference to the abstract naked
a water-course which has its' origin on his land than :
idea of a ship. The relation which the equipment it arose elsewhere.'
bears to the acttial service Is to be looked at. " Ap- No action can be maintained for changing th
purtenances 'is
^ a word of wider extent than " furni- course or obstructing the flow of mere surface- wate
ture "(g. V.) and may be applied to many things which by erections on adjoining land. A party cannot b
could not be so described with propriety in a contract his own act alone convert a flow of s\u:tace-water int
of insurance. The tackle, apparel, and furniture form a stream with the legal incidents of a natural watei
a part of every ship, but that is not a part which is course, but the right may be acquired by adverse use
only appurtenant as necessary for a special voyage. ^ for the proper period.*
Compare Appendant; Incident. The courts will enjoin as a public and a private nu
AQUA. L. Water. sance hydraulic mining which becomes injurious t
Aqua cedit solo. Water passes with navigation and destructive to the farms of riparia
land : a grant of land conveys water rights. A person operating a coal mine in the ordinary an
owners.^
One cannot bring an action to recover possession of
usual manner may, upon his own land, drain or pum
a piece of water by the name of water only, by calcu- the water which percolates into the mine into a strear
1 2 Bl. Com. 18.
Whiskey Cases (United States v. Ford), 99 U. S, 599
(1878); Oliver v. Commonwealth, 77 Va. S93 (1883). = Kauffman v. Griesemer, 25 Pa. 418-16 (I&56); Blancl
1 F. apartenir, to belong to: L. ad-per-tinere, to ex- ard V. Baker, 8 Me. *865 (1838): 2 Bl. Com. 395.
tend through to. 'Atchison v. Peterson, 20 Wall. 511 (1874), cases
2 United States v. Harris, 1 Sumn. 87-38 (1830), Story, J. Tyler
See also Whitney ■». Olney , 3 Mas. 281-83 (182.3), Story, J. ; Silver v.Spring
Wilkinso n, 4 Mas.
Bleachin 40O-8
g, &c. Co.(1827), cases, St'oiy, X
v. Wansku ck Co i
39 Ark. 135; 15 Cal. 186; S7 id. 14; 8 Allen, 291, 895; 23 R. I. 615 (1882); 3 Kent, 439.
Minn. 362; 53 N. H. 508; 15 Johns. 447; 93 N. T. 549; 29 ■> Holyoke Company v. Lyman, 15 Wall 506 (1878'
Clifford, J.
Ohio St. 648; 9 Oreg. 398; 10 S. & R. 63; 13 Pa. 495; 58
id. 253; 13 Am. Dec. 657-60, cases; 4 Kent. 467. ' Howe V. Norman, 13 R. I. 488 (1882).
' [Harris v. Elliott, 10 Pet. *54 (1836), Thompson, J. « Dickinson v. Worcester, 7 Allen, 28 (1863),
eascE
* Linthicum v. Eay, 9 Wall. 241 (1869), Field, J. Stanchfield v. Newton, 148 Mass. 110 (1886).
» Swift V. Brownell, 1 Holmes, 473-74 (1875), cases, ' Woodruff u. North Bloomfleld Gravel Mining
18 F. R. 753 (1884); 16 id. 35. See also 6 Col Co
Shepley, J.; The Witch Queen, 3 Saw. 802-3 (1874), 447 530
cases; 2 Low. 40. 92 N. Y. 480.
 AQUA ARBITRARY

which forms the natural drainage of the basin, al- Aquarium. See Entertainment.
though the quantity of water may thereby be in- AQUATIC. ; See Aqua ; Riparian.
creased and its quality rendered unlit for domestic
pm-poses by lower riparian owners. The use of the
ABBITRAEY.i Not governed by fixed
stream by such owners must ex necessitate give way rules; not defined by statute; discretionary:
to the interests of the community, in order to permit as, arbitrary punishment. See Discretion;
the development of the natural resources of the coun- Judge.
try and make possible the prosecution of the business
Without cause or reason shown; as, an
of mining coal.^
On the mineral lands of the public domain m the arbitrary challenge.^
Pacific States and Territories the doctrines of the Arbitrarily. In a covenant not " arbitrarily " to
common law are inapplicable, or applicable only in a withhold assent to an assignment of a lease means,
very limited extent, to the necessities of miners, and without fair, solid, and substantial cause, and without
reason given. A refusal grounded upon advice was
inadequate to their protection; there, prior appropri-
ation gives the better right to running waters to the held not arbitrary.' Compare Satisfactory.
extent in quantity and quality necessary for the uses ARBITRATION.'' Wlien the parties
to which the water is applied. What diminution of injuring and injured submit all matters in
quantity or deterioration in quality will constitute an dispute, concerning any personal chattel or
invasion of the rights of the first appropriator will
depend upon the special circumstances of each case; personal wrong, to the judgment of two or
and in controversies between him and parties subse- more arbitrators who are to decide the con-
quently claiming the water the question for determi- troversy.5
nation iswhether his use of the water to the extent of A like submission of any matter in dispute.
the original appropriation has been impaired by the
Although some jealousy is felt in allowing refer-
acts of the other parties. Whether a court of equity ences of questions regarding realty, yet references
will interfere to restrain acts of invasion upon the
have been had in cases of partition, disputed bound-
rights of the first appropriator will depend upon the aries, waste by tenant, title of devisees, and generally
character and extent of the injury alleged, whether it upon titles. But crimes and misdemeanors are not
be irremedial in its nature, whether an action at law
would afford adequate remedy, jvhether the parties
Arbitrator.
subjects.' A private extraordinary
are able to respond for the damages resulting from
the injury, and other considerations ordinarily gov- judge chosen by the parties who have a mat-
erning acourt of equity in the exercise of its preven- ter in dispute, and invested with power to
tive process of injunction.' decide the same.^
The civil law acts upon the maxim that water is de-
scendible bynature, that its usual flow should not be Compulsory arbitration. When assent
interfered with, and that its burden sho.uld be borne in one party is enforced by law, under a rule
by the land through or over which it naturally flows, to refer. Volimtary arbitration. A ref-
rather than by land through which it can be made to erence freely consented to by both parties.
flow only by artificial means. The common law does At common law, was in pais — by agree-
not recognize this principle as to surface-water, but ment out of court, with no compulsory
permits one to protect his premises against it, not re-
garding as injury any resulting inconvenience. The power over witnesses. In pursuance of 9
maxim of the civil law, aqiM currit, etc., applies gen- iind 10 Will. Ill (1698), c. 15, is by rule of
erally, in both systems, to running water, subject to court — by order of a court directing that a
such reasonable qualifications as the interests of agri- submission upon a matter not yet in court
culture require and the enjoyment of private prop-
erty will permit. As an owner has the right to protect
shall be made a rule of the court.
The statute enacts that all merchants and others
his lands from the violence of the current, or to im-
who desire to end any controversy, suit, or quarrel
prove the same by erecting embankments, and as this
cannot be done without increasing the flow upon the (for which there is no remedy but by personal action
opposite side, it follows that this must be permitted to or suit in equity) may agree that their submission of
some degree by all persons owning lands upon the the suit to arbitration or umpirage shall be made a
stream, else the right cannot be exercised by any one
cases, Minshall. J. See also Barklej v. Wilcox, 86 N. Y.
of them.'
See Alluvion; Ice; Mill, 1; Biparl*n; Spring; 143-48 (1881), cases.
1 L. arbitrarius, capricious.
Thkead; Water; WATER-conasE. a 4 Bl. Com. 333.
' Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, a Treloar v. Bigge, L. R., 9 Ex. 154 (1874).
14S-63 (1886), cases. < L. arbitrare, to act as umpire: arbiter, a witness,
"Atchison V. Peterson, 20 Wall. 507, 511-16 (1874), a judge.
» 3 Bl. Com. 16.
oases. Field, J.; Bosey v. Gallagher, ib. 681-85(1874),
cases; Tartar v. Spring Creek Water & Mining Co., 5 « Brown's Law Diet.
Cal .397 (1885); Sanford v. Felt, 71 id. 250 (1880), cases. ' [Gordon v. United States, 7 Wall. 194 (1868), Grier, J. :
s Crawford v. Eambo, 44 Ohio St. 384, 882-87 (1886), Bouvier; 17 How. 394; 53 Barb. 595.
 ARCHITECT 73
ARM!

rule of the klng^s courts of record, and may insert such Argument list. A calendar of cau
agreement in their submission or promise, or as the
for discussion and determination before
condition of the arbitration-bond; which agreement
being proved upon oath by a witness thereto, the court in banc, upon questions of law. {
court shall make a rule that such submission and
BEiEr, 3.
award shall be conclusive.'
Argumentative. By way of reasonii
A bond to abide the decision may be required.
The arbitrators are the judges of both the law and as, that a plea must not be argumentati^
the facts. They are not bound to disclose the grounds Re-argument. A second or additioi
of their finding. They cannot modify or go beyond argument.
the precise question submitted; nor can they do gen- Sometimes ordered by a court of review when
eral equity.^ court wishes to hear counsel upon a material qi
Irregularities in appointing arbitrators, or in their tion of law either not fully discussed in the first ar
proceedings, when apparent on the record, may be ment or passed by unnoticed and developed later
corrected by a writ of error; but those which are the deliberations of the coiu't.
made so by extrinsic proof can be corrected only by ARGUMENTUM. L. Argument: 1
the court below. Every presumption is made in favor erally, that which makes clear or prov
of the award, unless flagrant error appears on the
- record. While the proceedings remain in court (that Arguere, to argue.
is, unci! the arbitrators are appointed), it must appear Arguendo. In reasoning, arguing. A
by the record that everything is regiUar, but after breviated arg.
they are appointed the proceedings are out of court Applied to an observation made by a jud
and need not be reduced to writing.^ in rendering an opinion, incidental to t
The powers and duties of arbitrators are regulated
by statute, and explanatory decisions, in each State.
point under discussion and, therefore, r
Arbitrations are regarded favorably. If they settle authoritative.
the rights of the parties, and their award can be Argumentum a simile. Argume
rendered certain by reference to documentary evi- from a like case — from analogy.
dence, they will be sustained. An award which leaves
Argwmentum a simile, valet in lege, i
nothing to be done to dispose of the matter except a
ministerial act is sufficient.* argument from an analogous case has weig
See further Abide; Award, 2; Refer, 1; Umpire. in law. See SiMllJS.
Arbitration of exchange. See Ex- Argumentum ab ineonvenienti. I
CTHANQB, 3. gument from a hardship, q. v.
ARCHITECT. See Laborek. ARISE. See Judicial, Power.
Every person whose business it is to plan, design, ARIZONA. See Territory, 2.
or superintend the construction of buildings, ships, ARM OP THE LAW. See Injuncxic
roads, bridges, canals, or railroads, shall be regarded ARM OF THE SEA. See Sea.
as an architect and civil engineer: Provided, That liiis
shall not include a practical carpenter who labors on ARMA. L. Weapons; war, warfai
a building.** See Specification. See Arms, 3 ; Lex, Silent leges, etc. ; V
ABGrUENDO. See Argumentum.
Vi, etc.
ARGUMENT. Proof or the means of ARMED REBELLION. See War.
proving, or inducing belief ; a course or pro- ARMS. Weapons, offensive or defensi^
cess of reasoning ; an address to a jui'y, or a See Arma.
court. See Argumentum. 1. Aggressive weapons ; instruments of i
When a controverted question of fact is to be sub- tack.
mitted to a jury for its determination either party has At common law one may carry arms for def en
an absolute right to be heard in argument thereon. But going armed with dangerous or imusual weapo
The power of the court is limited to imposing reason- by terrifying the people, is a crime against the peac
able restrictions as to the time to be occupied.^ See See Defense, 1.
AITORNEY. Playfully or wantonly pointing fire-arms at anoth
which was an assault at common law, has been mi
■ 3 Bl. Com. 1". a statutory offense with increased punishment.
" 1 Morse, Arb. & Award, 181-83, cases. Discharging fire arms within the limits of incor
? Wilcox V. Payne, 88 Pa. 157 (1878); Tobey v. Covmty rated towns and cites is generally prohibited.
of Bristol, 3 Story, 800, 822 (1845); Corbin v. Adams, 76 " A well regulated Militia, being necessary to i
Va. 61 (1881); Gaylord v. Norton. 130 Mass. 74(1881). security of a free State, the right of the people to k(
* Cochran v. Bartle, 91 Mo. 646 (1887), cases.
and bear Ai-ms, shall not be infi-inged." '
» [Revenue Act, 13 July, 1866: 14 St. L. 121.
"Douglass V. Hill, 29 Kan. 529 (1883), cases; Foster v. ' 3 Bl. Com. 308.
MagiU, 119 m. 82 (1886); 18 Cent. Law J. 363-68 (1884), "IBl. Com. 143; 4 id. 149.
cases. ' Constitution, Amd. Art. II. Ratified Dec. 15. 17<
 ARMY 73
AREEAK

This right is preserved, also, by the Bill of Eights At common law the arraignment of a
of each State, and the exercise regulated by statute.
prisoner consists in calling him to the bar ;
The right to bear arms is not a right granted by the
Constitution; nor is it dependent upon that instrument in his holding up his hand — for identifica-
for its existence. The Second Amendment declares tion in
; reading the indictment to him —
tliat it shall not be infringed — by Congress.' See that he may understand the charge; in
Amendment, 2; Police, 2. delnanding, whether he is guilty or not
TWiile it is true that that Amendment is a limitation
upon the powers of Congress only, nevertheless, since guilty; and in inquiring how he will be
all citizens capable of bearing arms constitute the re- tried — the common answer being " By God
served military force of the National' government, a
and my country." l
State cannot prohibit the people from keeping and car- Constitutes no part of the trial, but is a prelimi-
rying arms so as to deprive the United States of their nary proceeding. Until the party has pleaded, it can-
rightful resource for maintaining the public safety.'^ not be known whether there will be any trial or not.^
The right to bear ai*ms for the common defense In a State in which the constitution provides that
does not mean the right to bear them ordinarily or the trial of crimes shall be by jury and the prisoner
commonly, for individual defense, but refers to the pleads " not guilty," it is mere mockery to ask him
right to bear them for the defense of the community how he will be tried, for the constitution has already
against invasion or oppression. In order that he may declared how that shall be. As soon as it judicially
be trained and efficient in their use, the citizen has the appears of record that the party has pleaded not
right to keep the arms of modern warfare and to use guilty there is an issue which the com't is bound to
them in such manner as they may be capable of being direct to be tried by a jury.'
used, without annoyance and hui't to others." Though a formal arraignment may be proper it is
By arms, in such connection, is meant such as are not essential to the power of the court to convict,
usually employed in civilized warfare and constitute when expressly waived by the accused; especially so
the ordinary military equipment.* See Treason; War; since there are no longer the same reasons for the for-
Weapon. malities of an arraignment that there were In ancient
2. Anything that may be used for defense practice when proceedings were in Latin, and the ac-
cused could not appear with counsel, and, after a plea
or attack : as, staves, Sticks, or ^other mis-
of not guilty, he was required to elect between trial
siles, as well as fire-arms. Whence " force by jury and ordeal or wager of battel.* See Battel.
and arms." See Force, 2; Violence. The ancient formality is disused. The statutory
ARMY. See Enlistment ; Martial Law ; requirement of furnishing the prisoner with a copy
Naturalizaiton (R. S. §2166); Reinstate; of the indictment takes the place of reading the
Station, 1 : War. indictment to him. The record should show that
what took place amounted to an arraignment — as.
AHPEN; AEPENT. A measure of land
the mention of the prisoner's presence in court, and
in use in this country, in the early French
that he was called upon to plead to the indictment.'
and Spanish times, nearly corresponding to ARRAY." Order; arrangement.
the English acre.5 The whole body of jurors as arranged upon
AERAIGN.* To call upon to account or
the panel. Whence challenge to the array.'
answer.' See Challenge, 4.
To call a prisoner to the bar of the court ARREAR.8 Back, remaining back : un-
to answer the matter charged upon him Jn
paid, though due.
the indictment. 8 Arrears. Money unpaid after it is due ;
Arraignmeiit. The act or proceeding of as, of interest, dividends, rent, taxes, wages,
arraigning.
pensions, alimony, dower.
1 United States v. Cruikshank, 92 U. S. 553 (1875), " In arrear" — overdue and unpaid. ^
Waite, C. J.
^ Presser v. Illinois, 116 U. S. 265 (1886), Woods, J. 1 4 Bl. Com. .32a-24. See 1 Steph. Hist. C. L. Eng. 297.
'Andrews!). State, 3 Heisk. 177-89 {Ky., 1871), Free- , » United States v. Curtis, 4 Mas. 236 (1820), Story, J.
man, J. 3 United States v. Gilbert, 2 Sumn. 69 (1834), Stoiy, J. ;
* Andrews v. State, 3 Heisk. 184, supra; 2 Humph.
State V. Weber, 23 Mo. 3S5-27 (1865).
158-53. See also State v. Eeid, 1 Ala. ai4-22 (1840), Col- * Goodwin v. State, 16 Ohio St. 346 (1863), Day, J.
lier, C. J.; Wright V. Commonwealth, 77 Pa. 470 (1875); » Fitzpatrick v. People, 98 111. 260 (1881), Sheldon, J.
SPhila.eiO; 2Litt.,Ky.,90; 1 Kelly, Ga., 247-61; 2 Story, See also Lynch v. Commonwealth, 88 Pa. 193 (1878);
Const. §§ 1889-90; 8 Am. Rep. 22; 14 id. 380. Ray V. People, 6 Col. 231 (1882).
6 See 12 How. 438; 0 Pet. 769; 4 Hall, L. J. 518. • F. arrai, preparation, order.
» L. ad rationem ponere, to call to account,— 2 Hale, '3 Bl. Com. 369; 4tU352.
P. C. 216. F. aranier, to speak to, cite: raison, reason.
8 Old Eng. arere, rare, in the rear: F. rtej-e; L. retio,
' State V. Weber, 22 Mo. 325 (1855).
baclrward.
»4B1. Com. 322. » Hollingsworth v. Willis, 64 Miss. 1B7 (1886).
 ARREST ARREST
74,
Said of money unpaid at the time it is due, Restraint of the person — restriction of the
that is, past due.i right of locomotion,!
"Arrear" impliesthat no part has been paid; "ar- The causes are mainly torts— as, frauds upon cred-
rears" and "arrearage," that some part has been itors, breaches of promise to marry, non payment of
paid." See Eies. taxes, non-compliance with the order of a court, pro-
fes ional or official misconduct.
AREEST.s 1, V. To delay, detain, stay,
stop, withhold. May be made upon original, mesne, or final process.
Arrest of judgment. If, while an issue (3) In criminal practice apprehending or
of fact is regularly decided, it appears that detaining one's person in order to be forth-
coming to answer an alleged or suspected
the complaint was either not actionable or
was not made with sufficient precision, the
crime.2
defeated party may supersede it by arresting "Apprehension" (q. v.) is sometimes used
distinctively for this species of arrest.
or staying the judgment.*
Arrests of judgment arise trom intrinsic Taking, seizing, or detaining the person of
another, touching or putting hands upon him
causes appearing upon the face of the record.
As, where the declaration varies totally from in the execution of process, or any act indi-
cating an intention to arrest, constitutes an
the original writ ; where the verdict materi-
ally varies from the pleadings and issue arrest.3 Usually effected by means of a —
Warrant of arrest. A written judicial
thereon ; or, when the case laid in the decla-
order for the arrest of a person accused or
ration is not sufficient in law upon which to
found an action.* suspected of having committed a crime.
An invariable rule is that whatever matter of law This must be in writing, under the hand and seal of
is alleged in arrest of judgment must be such matter the magistrate, a.nd state the cause of commitment,
that it may be examined lnto,| if necessary, upon ii
IS, upon demurrer, would have been suf&cient to over-
writ of habeas corpus.*
ihrow the action or plea.* All processes for the arrest of a party are not in-
A defendant in a criminal prosecution, at any time
jefore sentence, may offer exceptions to the indict- cluded inthe word " warrant " as used in the constitu-
tional provision that no warrant shall issue for the
nent in arrest or si-ay of judgment; as, for want of
arrest of a person but upon probable cause supported
sufficient certainty in setting forth either the person,
by oath or affirmation, A capias, or writ of aiTest in
:he time, the place, or the offense." a civil action, is not a warrant in the sense intended,
The motion should be predicated upon some defect
and it is issued, at common law, as a matter of course,
which appears upon the face of the record,' vrithout oath. The warrant meant is an authority for
2, n. Taking a thing or a person into the the arrest of a person upon a criminal charge with a
3ustody of the law. view to his commitment and trial. The arrest of a
(1) In admiralty practice the technical term person upon a charge of insanity, tor the purpose of
his confinement, partakes more of the nature of a
tor an actual seizure of property. 8
After an order of discharge from arrest the marshal criminal than of a civil proceeding,*
s to restore the party to formal possession.* See At- Double arrest. Twice holding a defend-
tach, 2;Res, 2; Seizure. ant to bail for the same cause of action.
(2) In civil practice apprehension of a Not allowed except under very special circum-
person by virtue of lawful authority to stances. There cannot be an arrest in two places for
inswer the demand against him in a civil the same cause of action."
raise arrest. Any restraint upon the
iction.i" liberty of a person without lawful cause;
1 Wiggin V. Knights of Pythias, 31 F. E. 135 (1887), false imprisonment.
lammond, J. Malicious arrest. An arrest made with-
' Webster's Diet.
out probable cause.
^F. areater, to stay: L. re-stare, to stand bAck, to The malice necessary to sustain an action is not ex-
emain. press malice or the specific desire to vex or injure
< [3 m. Com. 387.
■3B1. Com. 893-94. 1 [Hart V. Flynn, 8 Dana, 192 (Ky., 1839), Ewing, J,
'4B1. Com. 375. See also Delaware Canal Co. v. 2 [4 Bl. Com. 289; Montgomery County v. Robinson
Joramonwealth, 60 Pa. 371 (1869). 85 111. 176 (1877).
'Rountree v. Lathrop, 69 Ga. £39 (1882); People v. ' United States v. Benner, Bald. 239 (1830), Baldwin J
Zelly, 94 N. Y. 526 (1884). «1B1. Com. 137; 4 id. 290-91; 71 N. T, 376; 93 id ^0-
spelham v. Rose, 9 Wall. 107 (1869), Field, J.; The 4 Cr, L, M, 193-99.
iOttawanna, 20 id. 221-28 (1873). » Sprigg V. Stump, 7 Saw, 289 (1881), Deady, J,
» The Marys, 10 Bened. 561-6:3 (1879). "See Hernandez v. Canobeli, 4 Duer,'642 (1855)- 14
11 [Gentry v. Griffith, 27 Tex. 462 (1864), Moore, J.
Johns, *347; 4 Yeates, 206. '
 ARREST 73 ARRIVAL

another, but the willful doing of an unlawful act to the May be made at night, and, for an indictable of-
prejudice or injury of another, i fense, on Sunday. Must be, made within the jurisdic-
All persons within the jurisdiction of the court are tion of the court or at least of the State. The officer
liable to ai-rest on civil process, except — an ambas- may use necessary force; but he may not kill one
sador and his servant; an attorney, suitor, or sub- charged with a misdemeanor, in the act of escaping,
poenaed witness as such attending a lawful tribunal ; and, rarely, one charged with a felony.'
a clergyman at divine service; an elector at a public One who is not a peace officer, de jure or de facto,
election; a married woman on her contract; a law- by assuming to exercise the duties of such officer does
maker in attendance upon the legislative body; a not acquire more authority to make an arrest than
soldier on military duty; sovereigns, governors of any other private individual. In resisting arrest by
the States; and other persons, as provided in local such a person one may use only force enough to pro-
statutes. tect himself from the assault,— unless it is necessary
In the case of persons attending a tribunal or a to save his own life, or his person from great harm, in
legislature the privilege protects them not only during which case he may take iife.^*
attendance, but also during the reasonable period re- See further Bail, 1 (2); Capere; Dokess; Escape, 3;
quired for going and returning,— citJido, morando, et House, 1; Imprison; Obstruct, 3; Pbosecutiok, Mali-
redeundo, going, remaining, and returning." cious; Eesist; Reward, 1; Sakctuary; Suspicion;
All persons in the public service are exempt, as a Warrant, 2.
matter ot public policy, from arrest upon civil pro- AIlRrVAIj.3 Under a law imposing a
cess while thus engaged. The rule is dKTerent when
the process is issued upon a charge of felony.'
forfeiture there may be an arrival of a Tes-
May not be made in the presence of a court; nor sel at a port without an actual entry or an
on Sunday; nor, generally, at night. attempt to enter the port.*
When made upon final process merely giving bail Perhaps an arrival " within " a port cannot be with-
does not authorize a discharge. out an entry into the port.*
An unauthorized arrest renders the ofldcer liable to In navigation and revenue laws is some-
trespass. This occurs when the process is materially times used in the common sense of coming
irregular or informal, or issued from a court which
has no jurisdiction, or when the wrong person is taken into port, and sometimes in the sense cf
imder legal process.* coming into a port of entry or destination
All persons are liable to arrest on criminal process — for a particular object connected with the
except ambassadors and their servants. It may be
made: 1. Under a warrant issued by a justice of the
voyage.5
Sometimes refers to a coming into a port for any
peace when he has jurisdiction; in a case of sus- cause or purpose. This may be the literal and general
picion he is the sole judge of the probability. 3. By meaning with the lexicographers, but, in several cases,
an oflacer without a warrant — v^hen the peace is the term denotes a coming in for certain special ob-
broken in his presence; and whenever he has prob- jects of business and remaining there long enough to
able cause to suspect that a felony has been commit- render an entry of the vessel proper, and a deposit of
ted and that the person he arrests is guilty; also, by her papers with a consul prudent and useful. Thus it
watchmen, who keep watch and ward in towns, of all is when the vessel enters a port or harbor to close an
offenders, particularly night-walkers. 3. By a private outward or inward voyage. It is usually a coming to
person without a warrant — when the peace is broken
in his presence ; and whenever a felony has actually the place of the vessel's destination for her business
been committed and he has probable cause to know and waiting to transact it."
A vessel arrives at a port of discharge when she
that the person he arrests was the perpetrator. 4. By comes or is brought to the place where it is intended
lue and cry,' q. v, to discharge her and where the customary place of
' Johnson v. Ebberts, 11 F. E. 129 (1880), cases.
discharge is.^
As to arrival at destination of goods bailed to a
2 See Bridges v. Sheldon, 18 Blatch. 516 (1880), cases;
Atchison v. Morris, 11 F. R. 582 (1882), cases; Lamed v. common carrier, see Carrier.
Griffin, 12 id. 590 (1882), cases: s. c. 14 Eep. 253; Nichols
V. Horton, 14 F. E. 327, 3i9 (1882), cases; Jones u. >'4B1. Com. 293; United States v. Rice, 1 Hughes,
Knauss, 31 N. J. E. 211-16 (18791, cases; Greer v. Young, 662-06 (1875), cases; Reneau v. State, 2 Lea, 720 (1879).
Sup. Ct. 111. (1887), cases: 26 Am. Law Reg. 372(1887); On federal arrests ot State prisoners, see 18 Cent. Law
ib. 377-82, cases; 11 N. E. Eep. 107; Palmer v. Eowan, J. 168-65 (1884), cases.
Sup. Ct. Neb. (1888): 22 Am. Law Eev. 278-80 (1888), » Creighton v. Commonwealth, 63 Ky. 142 (1885).
cases; 1 Greenl. Ev. §§ 318-17; 1 Whart. Ev. §§ 389-90. ' F. ai-river: L. L. ad-ripare, to land, come to shore.
s United States v. Kirby, 7 Wall. 486 (1868). * [United States v. Open Boat, 5 Mas. 132
' 3 Bl. Com. 288-89; 1 Bouv. 183, cases. Story, J. ; United States v. Shackford, ib. 447 (
'4B1. Com. 289-94: Mitchell v. Lemon, 34 Md. 181 0 Parsons v. Hunter, 2 Sumn. 422-23 (1836), Story, J.
(1870), cases: Fleetwood v. Commonwealth, 80 Ky. 5 •Harrison v. Vase, 9 How. 379-81 (1850), statutes,
(1882): Neal v. Joyner, 89 N. C. 383-90 (1883), cases; Woodbury, J.
Staples u. State, 14 Tex. Ap. 139-41 (1883), cases; Mor- ' Simpson v. Pacific Mut. Ins. Co., 1 Holmes, 137-13
ley V. Chase, 143 Mass. 398 (1887), cases; Cooley, Torts, (1872), cases, Shepley, J. See also Gronstadt v. Witt-
174-75, cases. hofl, 15 F. E. 269, 271 (1883).
AES 76
ART

AHS. L. Skill in fitting or joining : skill, so embodied, which the patent laws protect. In the
■ade, calling, art. English patent acts the word " art " is not used at all.
Cuique, or euilitaet, in sua arte perito, And in ours, as well as in the Constitution, the word
refers to a "useful art," or to a manufacture which is
redendum est. To one practiced in his beneficial, and which, by the same law, is required to be
rt, confidence sliould be given. described with exactness as to its mode of operation.'
The opmiOD of a person versed in a caUing is to be " Useful art " is the general term used in the patent
iceived as evidenGe. Every one, also, is presumed to laws. An art may require one or more processes or
assess the skill ordinarily requisite to the due dis- machines to produce a certain result or manufacture.
large o£ the demands or duties of his vocation, i See The arts of tanning, dyeing, making water-proof cloth,
irther Expert.
vulcanizing India-rubber, smelting ores, and numer-
ARSEWAL. See Land, Public. ous others, are usually carried on by processes, as
ABSOU .2 The malicious and willful burn- distinguished from machines.^
ig of the house or out-house of another.^ Without attempting to define the term " art " with
logical accuracy we take as examples of it something
The malicious burning of another's house.* which. In their concrete form, exhibit what all con-
Burning any building so situated as to en- cede to come within a correct definition, such as the
anger a dwelling-house was felonious arson art of printing, that of telegraphy, or that of photogra-
t common law.* phy. The art of tanning leather might also come
In some States statutes divide the offense into de- within the category because it requires various pro-
cesses and manipulations.^
:ees, punishing most severely burnings which involve Centuries ago discoveries were made in certain arts
le greater danger to life. Statutes also impose pun- the fruits of which have come down to us, but the
hments for the malicious burning of structures not means by which the work was accomplished are at this
le subject of arson at common law, without extend- day unlinown. It would hardly be doubted, if one dis-
ig that name to include them.
covered an art thus lost, and it was a useful improve-
At common law an offense against the right of habi- ment, that he would be entitled to a patent. He would
;tion. Actual destruction of some integral part of not literally be the original inventor; but he would
le wood-work, not personalty, is necessary. 'Die be the lirst to confer on the public the benefit of the
iming is " willful and malicious " when not acciden- invention.' See Design, 3; Patent, 2; Process, 2.
I nor for the public welfare. By " house " is meant 2. A description of the art of book-keeping,
dweUing-house or any out-building within the curti-
ge, q. V. Brief absence from the house is not re- though entitled to the benefit of copyright,
irded. If homicide results the act is also murder. lays no foundation for an exclusive claim to
The olTense may be committed by willfully setting the art itself.
:e to one's own house and thereby burning a neigh- The object of the one is explanation; of the other
>r's house. ^ use. The former may be secured by copyright; the
Burning ones own house to defraud insurers has latter, if at all, by letters-patent.*
;en made indictable.' See Belong; Burn. A copyright may be secured for models or designs
ART. 1. A principle put into practice by intended to be perfected as works of the fine arts —
leans of some art, machine, manufacture, painting and sculpture.^ See Copyright.
American works of fine arts are importable free of
r composition of matter. See Aks.
duty.' See Furniture.
" The Congress shall have Power . . To promote 3. Trade; business; calling.
le Progress of Science and Useful Arts, by securing
1 Inventors the excltisive Kight to their . . Words of art are imderstbod as in the art or sci-
ence other
; words, in their popular or received import "
iscoveries."^ When parties who are engaged in a particular busi-
In speaking of patenting an " art " the reference is
>t to an art in the abstract, without a specification of ness use terms which have acquired a well-defined
le manner in which it is to operate as a manufacture meaning in that business, the supposition is that they
intended the terms to have their ordinary technical
• otherwise, but to the art thus explained in the speci-
:ation, and illustrated, when of a character so to meaning.*
;, by a machine or model or by drawings. It is the A vessel was chartered to carry a cargo of oranges.
■t so represented or exemplified, like the principle 1 [Smith V. Downing, 1 Fish. P. C. 70-71 (1830), Wood-
bury, J.; French u Rogers, ib. 142 (1850).
1 1 Bl. Com. 75; 2 Kent, BSS; 21 How. 101; 9 Mass. 227. = Corning v. Burden, IB How. 267 (18S3), Grier, J.
2 F. arson, incendiarism: L. ardere, to bum. ' Jacobs V. Baker, 7 Wall. 397 (1868), Grier, J.
= 4 Bl. Com. 220; 40 Ala. 664; 20 Conn, *246. * Gayler v. Wilder, 10 How. 497 (1S60), Taney, C. J.
< 2 Bishop, Cr. L. §8. « Baker u Selden, 101 U. S. 105 (1879), Bradley, J
» R. S. § 4952.
"HiU V. Commonwealth, 98 Pa. 195 (1881); State v.
cGowan, 20 Conn. *246-47 (1850). ' Act 22 March, 1883: 22 St. L. 521.
n 4 Bl. Com. 220-23. e Maillard v. Lawrence, 16 How. 261 (1853); Moran v
'1 Whart. Cr. L. § 813; 32 Cal. 160; 51 N. H. 176; 19 Prather, 23 Wall. 499 (1874); Greenleaf v. Goodrich lOI
Y. 637. : U. S. 284 (1879).
° Constitution, Art. 1, sec. 8, cl. 8. " South Bend Iron Works v. Cottrell, 31 F. E. 256 (1887).
 ARTICLE 77
ASCERTAIN

the captain engaging to " take the nortliem passage." Articled clerk. In England a person
The cargo becoming damaged, the charterer hbeled
tlie vessel for the loss. The court below found that bound by indenture to a solicitor, that he
" northern passage " appeared to be a term of art, un-
may acquire the knowledge pertaining to
the business of a solicitor.
intelligible without the aid of testimony, that the evi-
dence concerning it was conflicting, but that it was Articulately. By separate or distinct
immaterial to decide What it meant as the claimant
was entitled to the least strict deflnitlon and the actual propositions : as, to articulately propound in
course of the vessel came within that definition. Held, a libel in admiralty. See Libel, 2.
that if the term was a term of art it should have been 3. Precise point of time ; the exact moment :
found by the court; and that if there was no passage as, to be in the article of death — in articulo
known as the ''northern," the vessel was bound to mortis.
take the one which would carry it in a northerly direc-
» tion through the coolest waters, and the court should ARTIFICE. See Communication, Priv-
have ascertained from the proof what passages vessels ileged, 1;Deceit; Fraud.
were accustomed to take and which passage the con- ARTIEICIAL. 1. Pertaining to an art,
tract permitted.^ trade, or profession ; technical. See Art, 2, 3.
See Abbeeviations; Expert; Science; Technioal;
Teem, 1. Artificially. AwUl is said to be "arti-
ARTICLE.^ 1. "A distinct portion or ficially" or " inartificially " drawn, accord-
ing as it employs or does not employ technical
part, a joint or a part of a member, one of
or legal words and phrases and a lawyer-
various things.'' like arrangement of the matter. See Con-
A word of separation to individualize and struction.
distinguish some particular thing from the 2. Made or devised by human law ; opposed
general thing or whole of which it forms a to natural — formed by the laws of God: as,
part : as, an article in a newspaper, an article
of merchandise. 3 an artificial body or person, q. v.; an arti-
The radical word in the Greek means to join or to ficial day, q. v. ■
3. Estabhshed by agreement between men ;
fit to as a part. It is only recently that it has been ap-
plied to goods or physical property, and then only in conventional; opposed to natural — ina.de hj
the sense of something that is separate and individual nature : as, an artificial boundary, q. v.
in itself, as salt is a necessary article, or a hammer is ARTS. See Art.
a useful article.'
When a carrier stipulates that he will not be liable AS. Compare Such.
in the carriage of baggage for an amount exceeding While the omission of this word is not conclusive
fifty dollars "upon any article," the reference is to when the body of a complaint discloses a representa-
tive capacity in the defendant as the ground of action,
any article coming under the denomination of bag-
gage. The limitation would apply to the articles in a where the scope and averments of the complaint har-
monize with the omission the action may be consid-
trunk, but not to the trunk as one article. " The article
forwarded,' in a similar special contract, may cover ered against the defendant as an individual.'
each of several articles so strapped together as to As near as may be. See Procedure.
form one package. ' As soon as. See Immediately ; Possible ;
2. In the sense of a distinct portion, one of Soon ; Whenever.
separate yet co-related parts, a clause in a As to. Compare Quoad.
contract, compact, or other formal docu- Eecurring at the commencement of several de-
ment, is used in the expressions : vises does not necessarily mdicate the commencement
An article or articles— of agreement, of of a complete devise, independent of other limita-
amendment, of ^sociation, of confederation, ASCERTAIN. 1. To render definite or
of impeachment, of partnership, of peace, of tions.'': as, to ascertain the relief due.'
war, of separation, of shipping, qq. v. fixed
" The use in pleading of an averment is to ascertain
In popular parlance "to article "< means that to the court which is generally or doubtfully ex-
to make and become bound by an article of
agreement, q. v. 1 Bennett v. Whitney, 94 N. Y. 305 (1884). See also
1 The John H. Pearson, 121 U. S. 469, 473 (1887), Waite, Cook V. Gray, 13.3 Mass. 110 (1882); 3 Cranch, C. C. 459.
C. J. Appeal from the Cir. Ct. for Mass. 2 Goi-don V. Gordon, 5 L. R., H. L. 264 (1871).
2F. article: L. articulus, a small Joint, a joint: = See 2 Bl. Com. 65, 465. Swift wrote " A Proposal for
Gk. arein', to fit to as part. correcting and ascertaining the English Tongue," and
3 Wetzellr. Dinsmore, 4 Daly, 193 (1871), Daly, C. J. South (Sermons, V, 286) says that " success is intended
See also 6 Blatch. 68; 8 id. 2,57. the wicked
for» Van man. to ascertain his destruction."
< Seel Story, Eq. 5 790. Vechten v. Hopkins, 5 Johns. 219 (1809).
 ASIDE 78
ASSEMBLY

To make sure or certain; to establish, de- An offer or attempt by force to do corporal

termine, settle.!
This would seem to de,inand the observance of the injury to another.'
As if one person strike at another with his hand or
usual mode of investigation, to determine the matter a stick, and miss him. If the other be stricken, it is a
in question. Hence, where rent is to be " ascer- battery. Or it he shake his flst at another, or present
tained "by persons selected by the parties, notice of a gun, or other weapon, within such a distance that a
the time and place of hearing, with an opportunity hurt might be given; or draw a sword and brandish it
for offering proofs, should first be given to the parties in a menacing manner. An intent to do some corporal
interested. 2
injury must be coupled with the act.'
3. To acquire information as to a fact ; to Any attempt or offer with force or violence
become possessed of knowledge respecting an ■to do a corporal hurt to another, whether
event or transaction ; to learn the truth as to from malice or wantonness, with such cir-
a matter capable of proof. See Inquiry, 1 ; cumstances asdenote at the time an intention
KNOWtEDGB, 1. to do it, coupled with a present ability to
ASIDE. See Set Aside; Stand Aside. carry the intention into effect. ^
ASPECT. A bill in equity may be framed An unlawful attempt, coupled with a pres-
with a "double aspect," embracing alterna- ent ability, to commit a violent injury upon
tive averments, provided that each aspect the person of another. '
entitles the complainant to substantially the Assailant and the assailed designate, re-
same relief, and that the same defenses are spectively, the person injuring and the person
applicable to each.3 See Relief, 2. injured.
ASPORTARE. L. To carry away. Abusive words cannot constitute the offense; nor
Cepit et asportavit. He took and car- can an act in defense of one's self, wife, child, servant,
or property; nor an act in obedience to legal process.
ried away. Words formerly used to charge Unlawful imprisonment, undue liberty taken by an
an unlawful removal of personalty. employer, teacher, physician, dentist, car conductor,
De bonis asportatis. For goods carried or other person in a like position, is, or includes, an
assault.
off. The name of an action of trespass for
An assault with intent to commit a felony is a higher
pex'sonalty unlawfully removed, withheld or offense than simple assault.*
converted. See Aspoetation.
Remedies: indictment for breach of the peace; ac-
ASPORTATIOlf. Carrying away or re- tion for damages.
moving athing — a chattel. Son assault demesne. F. His own as-
In larceny there must not only be a taking, but a sault his
; assault in the first instance.
carrying away. Cepit et asportavit was the old law- "If one strikes me first, I may strike in ray own de-
Latin expression. A bare removal from the place in fense; and, if sued for it, may plead son assault
which the goods are found is a sufficient asportation.*
See ASFORTARE. demesne: that it was the plaintiff's own' original as-
sault that occasioned it. " ' Compare Manus, MoUiter.
ASS. See Cattle; Hoese. See further Battekt; Defense, 1; Indecent; Provo-
cation.
ASSAULT.' An attempt or offer to beat
ASSAYER. See Coin.
another, without touching him.*
Any person or persons or corporation whose busi-
If one lifts up his cane or his fist, in a
ness or occupation it is to separate gold and silver
threatening manner at another, or strikes at from other metals or mineral substances with which
but misses him — this is an assauli, insultus, such gold or silver, or both, are alloyed, combined, or
which Finch describes to be "an unlawful united, or to ascertain or determine the quantity of
gold or silver in an alloy or combination with other
setting upon one's person." 6 metals, shall be deemed an assayer.'
It is also inchoate violence, which is considerably
higher than bare threats; and, therefore, though no ASSEMBLY. An intentional meeting,
actual suffering is proved, the party injured may have gathering, or concourse of people : of three or
redress by action of trespass vi et armis, wherein he
recovers damages as compensation for the injury. ^ > United States v. Hand, 3 Wash. 437 (1810), Washing-
ton, J. ; United States v. Ortega, 4 id. 534 (1825); Drew
V. Comstock, 57 Mich. 181 (1885).
f Worcester's Diet. ' Traver v. State, 43 Ala. 356 (1869), Peck, C. J. ; Hays
' Brown v. Luddy, 11 Hun, 466 (1877). V. People, 1 Hill, 353-53 (N. Y., 1841).
= Adams v. Say re, 70 AJa. 385 (1881) ; Fields v. Helmes,
ib. 460 (1881); 17 How. 130. 468»Cal.
(1886).Penal Code, § 340; People d. Gordon, 70 Cal '
* 4 Bl. Com. 232; Croom v. State, 71 Ala. 14 (1881). * People V. Devine, 59 Cal. 680 (1881).
* L. ad-aaltitSj a leap at: satire, to leap, spring. » 3 Bl. Com. 120-21 ; 4 Blaokf . 546 ; 4 Denio, 448.
•8 Bl. Com. 180; 9 Ala. 83; 89 Miss. 534; 30 Hun, 437. • Revenue Act, 18 July, 1866, § 9: 14 St. L. 131.
 ASSEMBLY ASSESS
79
more persons in one body ; — of any number doing it or making any motion toward it.i
of persons in one place. See Mob ; Riot ; Rout.
Assemblage. May be composed o( things as well ASSENT.^ Agreement; approval; com-
as persons.* — respects things only,^
pliance consent
; ; willingness declared. Op-
Lawful assembly. Any congregating of posed, dissent.
people or citizens directed or permitted by
Implies more than mere acceptance, — is
the law of the place.
Civil assembly. A meeting of persons for an act of the understanding; while "con-
purposes of trade, amusement, worship, or sent" is an act of the feelings and will.«
the like. "Assent" respects matters of judgment;
"consent" matters of conduct.*
Political assembly. Any meeting of per-
Acceptance, approval, consent, ratification,
sons required bs' the constitution and laws of and assent, are often interchanged.'
the place: as, that of law-makers — whence Express assent. Assent openly declared,
"Assembly" and "General Assembly" — in words spoken or written. Implied as-
also, that of the Federal electors, and that of sent. Assent inferred from conduct.
voters at "primary assemblies." Mutual assent. Assent given by all the
Assemblyman. A. member of the legislature of a
State — possibly, by restriction, of the lower house. parties to an act or contract; the meeting of
See Legislature. the minds of the parties to any transaction.
Popular assembly. Any meeting of the Unless dissent is shown acceptance of a thing done
people to deliberate over their rights and for a person's benefit will be presumed; as in the case
of a conveyance or a devise of land.
duties with respect to government ; also, the Assent must be ad idem — to the same thing, and in
House of Eepresentatives in Congress, and the same sense.*
the more numerous body in the legislature of *' Mutual assent," which is the meeting of the minds
a State. of both of the parties to a contract, is vital to the
existence of the contract. The obligation must be
" Congress shall make no law " prohibiting or correlative: if there is none on one side there can be
abridging " the right of the people peaceably to as- none on the other. Moreover, this requisite asseqt
semble, and to petition the Government for a redress
must be the work of the parties themselves: the law
of grievances." *
The right of the people peaceably to assemble for cannot supply it.'
lawful purposes existed long before the adoption of Mutual assent of the parties to a modification is as
the Constitution. It is and always has been one of the indispensable as to the original making of a contract.
attributes of citizenship under a free government. It Where there is a misunderstanding as to anything
was not therefore a right granted to the people by the material the requisite mutuality of assent is wanting,
Constitution. The government of the United States, the supposed contract does not exist, and neither party
is boimd. In the view of the law in such case there
when established, found it in existence with an obli-
gation on the part of the States to affprd it protection. has been merely a negotiation resulting in a failure
The First Amendment operates upon the National to agree. What has occurred is as if it were not.'
See Kkowledqe, 1 ; Ikquirt,!; Permit; Protest, 2;
government alone.* See Petition, Bight of.
In eveiy meeting assembled for a lawful purpose Eatification; Satisfy, 1; Silence; UuDERSTANnrNG.

"there must necessarily exist an inherent power to pre- ASSERTORY OATH. See Oath, Offi-
serve order and to remove by force any person who cial.
creates a disturbance. If it were not so, the guaranty
ASSESS.' 1. To rate or fix the propor-
of the constitution would be idle mockery. Beligious
meetings, tor example, would lose their solemnity and tion which each person is to pay of a tax ; to
usefulness if they could be turned into halls of dispu- » 4B1. Com. 14«: 3 Coke, Inst. 176.
tation at the will of any individual.' See Worship. ' L. assentire, to agree to.
Unlawful assembly. When three or ' Webster's Diet.
more do assemble themselves together to do * Crabbe's Syn.
an unlawful act, . . and part without » See Welch v. Sackett, 12 Wis. *257 (1860), Dixon, C. J.
"See 4 Wheat. 225; ISumn. 218; 12 Mass. 461,; UN. Y.
441; 1 Pars. Contr. 400; 2 Washb. E. P. 579.
' Webster's Diet. ' Mutual Life Ins. Co. v. Young, 23 Wall. 107 (1874),
' Crabbe's Syn. Swayne, J.
' Constitution, Amd. I. Eatifled Dec. 15, 1701. » Utley V. Donaldson, 94 U. S. 47-49 (1876), cases,
* United States v. Cruikshank, 93 U. S. 551-63 (1875), Swayne, J. ; First Nat. Bank of Quincy v. Hall, 101 id.
Waite, C. J. 49-60(1879); 109 id. 97.
» Wall V. Lee, 36 N. Y. 142-46 (1865), cases. See also • From L. assessor, an adjuster of taxes; originally
21 Wend. 149; 1 Gray, 183; 63 Pa. 474; 80 Alb. L. J. 124 a judge's assistant, one who sat by him: ctssidere, to
(1879), cases. sit near to. Compare Assize.
 ASSESS 80
ASSETS

tax. To adjust the shares of a contribution division thereof, for governmental purposes without
by several persons toward a common object reference to peculiar benefits to particular individuals
according to the benefit received. To fix or property. "Assessments" have reference to im-
the value or the amount of a thing.i positions for improvements which are specially bene-
ficial toindividuals or property and which are imposed
To detei-mine by rules of law a sum to be in proportion to the particular benefits supposed to be
paid; to rate the proportional contribution conferred. They are justified when the improvements
due to a fund ; to fix the amount payable by confer special benefits and are equitable only when
a person or persons in satisfaction of an es- divided ment;in Just, proportion to such benefits. ' See Install-
2; Tax, 2; Value.
tabhshed demand. 2 Used of a business corporation, a rating or
Assessor. (1) An adviser to a court ; an
expert. fixing, by the board of directors, of the pro-
portion of his subscription which every sub-
Nautical assessor. A person, possessing scriber is to pay, when notified of it and
special knowledge in matters of navigation called upon.2 See Call, 3 (1).
and of maritime affairs, who assists, a court Political assessment. See Obticek.
of admiralty.'^ Compare Alderman. 3. To decide the degree of; to determine
(2) One who makes assessments for pur- the extent of : as, to assess a punishment.
poses of taxation or contribution. A statute providing that issues of fact in criminal
' A person charged by law with the duty of cases shall be tried by a jury, " who shall assess the
ascertaining and determining the value of punishment in their verdict," refers to offenses as to
which the limits of pimishment are fixed by law and
property as the foundation of a public tax.-" within which a discretion may be exercised.'
Assessment. The act or proceeding by ASSETS.* Property sufficient to answer
which a sum due or payable is determined ; a demand — made by a creditor or a legatee
also, the sum itself as a payment or obligation. upon an executor or administrator, or by a
As^ an assessment — of the damages suf- creditor upon an insolvent or a bankrupt.
fered by a plaintiff ; of the value of property
Also, all the property of the estate of a de-
taken for public use ; of money as the equiv- qedent or of an insolvent.
alent of a benefit or burden caused by a mu- "All the assets" of an insolvent company, of
nicipal improvement ; of losses in insurance ; which a receiver takes possession in New York, means
of installments payable upon stock subscrip- all the property, real and personal, of the company.*
tions ;of a sum to be raised by taxation, and The property of a deceased person appro-
of the portions due from individuals. priable to the payment of his debts ; also, the
Strictly speaking, an assessment of taxes entire property of a mercantile firm or trad-
is an official estimate of the sums which are ing corporation.*
Whatever is recovered that is of a salable
to constitute the basis of an apportionment
of a tax between the individual subjects of nature and may be converted into • ready
taxation within a district. As more com- money is called " assets " in the hands of the
executor or administrator; that is "suffi-
monly employed, consists in listing the per-
sons, property, etc., to be taxed, and in cient" or "enough" (French assez) to make
him chargeable to a creditor or legatee, as
estimating the sums which are to be the
guide in an apportionment of the tax between far as such goods and chattels extend.''
Originally, that which is sufficient or
themi ; — valuation is a part of it.'''
In a broad sense taxes undoubtedly include assess- > Roosevelt Hospital v. Mayor of New York, 84 N. Y.
ments, and the right to impose assessments has its
foundation in the taking power of the government; 112-13 (1881), cases, Earle, J.; Palmer v. Stumph, 29
but there is also a broad distinction between them. Ind. 333-36 (1868), cases; Chamberlain v. Cleveland, 34
Ohio St. 661-65 (1878), cases; Stephani v. Bishop of
" Taxes " are public burdens imposed generally upon Chicago, 2 Bradw. 252-53 (1878); 1 Handy, 473; 3 Col.
the inhabitants of the whole State, or upon some civil 462; 6 id. 113; 1 Wash. T. 676; Cooley, Tax. 147.
' [Bouvler's Law Diet. = [Spangler v. Indiana, &c. R; Co., 21 ni. 278 (1859),
Breese, J.
^ [Abbott's Law Diet.
' See The Clement, 2 Curt. 369 (1865); The Empire, 19 'Territory v. Romine, 2 N. M. 128(1881); ib. 467.
F. E. 559 (1884), cases. * F. assez, sutScient: L. ad, to, for; satis, enough.
■• Savings, &o. Society v. Austin, 46 Cal. 509 (1873), 'Attorney-General t). Atlantic Mut. Life Ins. Co.,
Wallace, C. J. 100 N. Y. 283 (1885).
s [People V. Weaver, 100 U. S. 546-46 (1879), Miller, J. : » Vaiden v. Hawkins, 59 Miss. 419 (1882), Ohalmers,C. J.
Cooley, Tax. 868; Bur. Tax. 198, %M. ' 2 Bl. Com. 510, 244.
 ASSETS 81 ASSIGN

enough in the hands of the executor or ad- The property of a decedent available at common
ministrator to malie him chargeable to the law for satisfying creditors is called "iegal assets,"
creditors, legatees, and distributees of the and will be applied, at common law and in equity, in
the ordinary course of administration, which gives
deceased, so far as the personal property of the debts of a certain nature priority over others. Where,
deceased, which comes to the hands of the ex- however, the assets are available only in a court of
ecutor or administrator, extends for purposes equity they are termed " equitable assets," and, ac-
cording to the maxim, that equality is equity, will,
of administration. In an accurate legal after satisfying those who have liens upon any spe-
sense, all the personal property of the de- cific property, be distributed among the creditors of all
ceased which is of a salable nature and may grades pari possit, without regard to legal priority.'
be converted into money is deemed assets. "Equitable assets "are such as the debtor has
made subject to his debts generally, which would not
But the word is not confined to such prop- be thus subjected without his act, and which can be
erty ;for all other property of the deceased reached only by a court of equity. They are divisible
which is chargeable with, and applicable to, among the creditors in ratable proportions.^
his debts or legacies is, in a large sense, assets, i Personal assets. Assets to which the
Though generally used to denote things which come executor or administrator is entitled; per-
to the representatives of a deceased person, the word
includes anything, whether belonging to the estate of sonalty. Beal assets. Such assets as go to
a deceased person or not, which can be made available the heir by descent ; assets by descent ; ' also,
landed property.
for the payment of debts. Hence we speak of the as-
sets of a money corporation, of an insolvent debtor, of " Personal assets " are chattels, money, and
an individual, of a private partnership. The word is evidences of debt available for paying the
likewise used for the " means " which a party has as debts of a bankrupt, insolvent, or decedent.
■compared with liis liabilities.'*
In the bankrupt law " assets " included all property "Real assets" are such portion of the
chargeable with the" debts of the bankrupt that came property of any such individual as consists
into the hands or imder the control of the assignee.^ of realty.
IiOgal assets. That portion of the assets
Assets ai-e also immediate and future.*
of a deceased party which by law is directly At common law (originally for feudal reasons)
liable in the hands of his executor or admin- lands in the hands of the debtor himself were not as-
istrator tothe payment of debts and legacies. sets for the payment of debts; creditors could reach
only the personalty and the profits of realty. Upon
<3enerally speaking they are such as can be the death of the debtor, in case of intestacy, the land
reached by a suit at law against the executor descended to the heir and the personalty to the exec-
or administrator, either by a common judg- utor. A creditor by a simple contract debt for satis-
ment or by a judgment upon a devastavit. faction could look only to the personalty in the hands
of the executor; while a creditor by a specialty in
More accurately speaking they are such as which the heir was named could reach the land itself
come into the hands and power of an ex- in such heir's possession — his assets by descent. By
ecutor or administrator, or such as, virtute will, however, the debtor might charge land with the
officii, he is intrusted with by law to dispose prior
Forpayment of a debt.^
the purpose of founding administration all
of in the course of administration, — what-
simple contract debts are assets at the domicil of the
ever he takies as executor or administrator, or
in respect to his office. Equitable assets. debtor. A note given
See AcoiDERE, is merely
Quando; evidence
Accoubt, of the 'debt.'
1 ; Administeb, 4;
All assets, chargeable with the payment of Bankeuptot; Bona; Conpobmity; Cbeditob's Bill;
■debts or legacies in equity, and which do not Insolvency; Legacy; Marshal, 2.
ASSIGN.' To point out, specify, signify
fall under the description of legal assets.^
which of several things; to select, appoint,
Termed " equitable " because (1) to obtain payment
■out of them they can be reached only through the in- fix. Whence assignable, assignment.
strumentality ofa court of equity, and (2) the rules of
As, to assign — the particular in which a
distribution by which they are governed differ from
the rules for the distribution of legal assets. In gen-
eral they are either created such by the intent of the ' [Silk V. Prime, 2 L. Cas. Eq., 4 Am. ed., 358, 353, oases.
" Oatlin V. Eagle Ba,nk, 6 Conn. 243 (1826), Hosmer,
party or result from the nature of the estate made
■chargeable.* C. J. See also Freedman's Sav. & Trust Co. v. Earle,
llOU. S. 712-20 (1884); 2 Johns. Ch. 677.
1 [1 Story, Eq. § 531. » [2 Bl. Com. 244, 340, 510.]
s [Stanton v. Lewis, 36 Conn. 449 (1857); Hall v. Mar- * 4 Kent, 354.
tin, 46 N. H. 342 (1865). » Hall II. Martin, 46 N. H. 341 (1865).
3if« Taggert, 16 Bankr. Eeg. 353 (1877). » Wayman v. Halstead, 109 U. S. 656 (1884), cases.
■> [1 Story, Eq. §§ 651-62. ' F. oMigner: L. asaignwe, to mark out to,
(6)
 ASSIGN
ASSIGN

contract has been broken, that is, "the Assignee in law. A person made an as
breach ; " the matter in which alleged error signee by the act of the law ; as, an execu-
was committed by an auditor, master, ref- tor, an administrator, a trustee for creditors.-
eree, com-t; dower, or the third of the de- An executor, as taking by operation of law, maj
be deemed the assignee in law of the testator. But s
ceased husband's realty ; counsel for a pris-
oner on trial; a day for a hearing, trial, legatee or devisee occupies no such position. ^
argument. Provisional assignee. One to whom the
estate of a bankrupt is conveyed until th«
Assignment of errors. A pleading filed
permanent assignee can be appointed.
in an appellate court by a party who com-
plains of errors committed by the cdurt Assigns. Assignees — persons to whom
a grantee may potentially convey ; as, in the
below. 1 See Error, 2 (3). '
New or novel assignment. When a phrase in deeds "heirs, executors, adminis-
plaintiff in his replication, after an evasive trators, and assigns." '
plea, reduces a general wrong, as laid in his Comprehends a line or succession of persons.*
Those to whom rights have been trans-
declaration, to a more particular certainty mitted by a particular title, as by sale, gift,
,by assigning the injury afresh, with all its
specific circumstances, in such manner as legacy, or other transfer or cession. Tech-
nically, designated the grantees of real estate
clearly to ascertain and identify it , consist- in fee-simple ; for convenience, came to em-
ently with his general complaint. ^ brace in its spirit all who succeeded to the
Not an admission of the facts alleged in the plea;
merely an assertion that the plaintiff will not investi- title by any other means than by descent. 5
gate the subject-matter. ' Comprehends all those who take, immedi-
2. To set over something to another per- ately or remotely, from or under an assignor,
son ;to transfer, convey. whether by conveyance, devise, descent, or
Generally implies a writing. It is of all the right act of the law.6
one has in any particular piece or pieces of property.* In the phrase " lawful assigns or legal representa-
Compare Lease. tives," isused in a cognate sense with "legal repre-
The meanings vary with the subject-matter, but the sentatives." Thus construed it means not assignees
general one is to set over or to transfer. As applied in fact, but assigiiees in law — those upon whom the
to movables, satisfied by a delivery.^ right is devolved and vested by law, as, assignees in
Assignable. Subject to lawful transfer; bankruptcy.'
also, so transferable as to vest a right of ac- Neither the word " assigns " nor the words " assigns
forever " have any popular or technical meaning that
tion.* Opposed, non-assignable. could qualify a devise to a man and his " heirs." ^
Assignor. He who transfers property to Includes a mortgagee.' See Eeprbsentati-ve (1).
Not necessary in a deed as a word of limitation
another person. * indicating the quantity of the estate granted or to
Assignee. He to whom property is trans-
empower the grantee to dispose of the estate. ^^
fer ed ;more particularly he to whom an in-
Assignment. A transfer of property to
solvent or a bankrupt makes over his whole
estate for the benefit of his creditors. another for himself or creditors; also, the
writing containing the evidence thereof.
In patent law one who has transferred to
The idea is essentially that of a transfer
him in writing the whole interest of the orig-
1 See 3 Pars. Contr. 480.
inal patent or any undivided part of siich
2Hight V. Sackett, 34 N. T. 451 (1866); 3 Hun, 419; 46
whole interest, in every portion of the United Dl. 31; 23Wis. 29B.
States. Compare Grantee (2) ; Licensee, 2. s See Baily v. De Crespigny, L. R., 4 Q. B. *186(1869);
In strict legal parlance does not designate an "in- Grant v. Carpenter, 8 E. I. 38 (1864); 34 Ala. 349; 28
dorse "of paper.' Miss. 246; 19 N. Y. 844; 1 Curtis, 193.
Assignee in fact. A person made an as- * Ogden V. Price, 9 N. J. L. 169 (1827).
signee by the act of another. » [Watson V. Donnelly, 28 Barb. 668 (1859).
« Baily v. De Crespigny, L. E., 4 Q. B. *186 (1869),
I [Associates of the Jersey Company v. Davison, 29 Hannen, J. ; (1886).
Bro-wn v. Crookston Agricul. Association,
N. J. L. 418 (1860). 34 Minn. 547
«3 Bl. Com. 311. See also 20 Johns. 43; Steph. PI. 241. ' South Pass of Mississippi, 16 Op. Att.-Gen. 157 (1878).
s Norman v. Wescombe, 2 M. & W. 360 (1837). Compare United States v. Gillis, 95 U. S. 407 (1877).
12 Bl. Com; 327; 21 N. J. L. 889. ' Lawrence v, Lawrence, 105 Pa. 840 (1884).
' Watkinson v. Inglesby, B Johns. *591 (1810). » Brown v. Crookston Agr. Assoc, 34 Minn. 546 (1886).
• [Thacker v. Henderson, 63 Barb. 279 '» Salem Capital Flour Mills Co. v. Stay ton Water-
' Palmer v. CaU, 2 McCrary, 530 (1881). Ditch & Canal Co. , 33 F. E. 154 (1887), Deady, J.
 ASSIGN 83 ASSIGN

by one party to another of some species of admits of, and therefore it is held good in a court of
equity. As the assignee is generally entitled to all the
property or valuable mterest.i remedies of the assignor, so he is subject to all equities
When commercial paper, payable to bearer, is
between the assignor and his debtor. But, in order to
transferred by delivery, both the right of property and
perfect his title against the debtor, it is indispensable
the right to sue pass thereby to the transferee; and
that the assignee should immediately give notice of
this is frequently called an " assignment " of such the assignment to the debtor, for otherwise a priority
chose in action. But such use of the term, which has
of right may be obtained by a subsequent assignee or
grown up under the usages of commerce, is scarcely
the debt be discharged by a payment to the assigned
correct. Assignment proper is a transfer by writing." before such notice.^
See BsAREK.
An agreement to pay out of a particular fund, how-
Domestic assignment. An assignment for ever clear in terms, is not an equitable assignment; a
the benefit of creditors, made by a debtor covenant in the most solemn form has no greater
effect. Such intent and its execution are indispensable.
at the place of his domicil. Foreign assign-
ment. Such assignment made in another The assignor must not retain control over the fund —
an authority to collect, or power of revocation. The
State or county. * transfer must be of such a character that the fund-
Legal assignment. An assignment of an holder can safely pay, and is compellable to pay,
interest or of property, particularly of per- though forbidden by the assignor. Then the fund-
holder is bound from the time of notice. A bill of
sonal property, cognizable or enforceable
exchange or a check is not an equitable assignment
in a court of law. Equitable assignment.
pro tanto. But an order to pay out of a specified
A like transfer, and in a special sense refer- fund has always been held to be "■ valid assign-
ring to a chose in action or a thing not in esse, ment in equity and to fulfill all the requirements of
cognizable by a court of equity.
the May
law. be2 of part of a debt, without the consent of the
An "equitable assignment" is an agree- debtor.' See Deposit, 2; Gift, 1.
ment in the nature of a declaration of trust
Preferential assignment. An assignment
which a chancellor, though deaf to the prayer
with preferences : made to a trustee in favor
of a volunteer, never hesitates to execute
when it has been made on a valuable or even of the claim of a particular creditor or cred-
itors; as, that one or more creditors shall
good consideration.* be paid in full before others receive any-
To make an assignment valid at law the subject
must have actual or potential existence at the time of
the grant or assignment. But courts of equity will In the nature of a special, rather than of a
support assignments not only of choses in action and thing.''
general, assignment. But the latter is also
of contingent interests and expectancies, but of things
opposed to a particular assignment or a
which, having no present actual or potential existence,
rest in mere possibility ; not indeed as a present posi- transfer of part of the debtor's property.
tive transfer operative in prcBsenti, for that can only In the absence of prohibitory legislation preferential
be of a thing in esse, but as a present contract to take assignments are valid.^
effect and attach as soon as the thing comes in esse: Voluntary assignment. Made of a debtor's
as, an assignment of the oil to be obtained in a whaling own free will, for the benefit of creditors.
voyage noi? in progress.' Compulsory assignment. Made in pursuance
To constitute an assignment in equity of a debt or
other chose in action no particular form is necessary. of the mandate of law.^
A " voluntary assignment " means, presumably, an
Any order, writing, or act which makes an appropria-
tion of a fund amounts to an equitable assj^nment of assignment of all of the debtor's property in trust to
the fund. The reason is, the fund being a matter not pay debts; as contradistinguished from a sale to a
creditor in payment of his claim, and from a pledge
assignable at law, nor capable of manual possession,
an appropriation of it is all that the nature of the case 'Spain V. HamUton, 1 Wall. 6^4 (1863), Wayne, J. ;
Laclede Bank v. Schuler, 120 U. S. 516, 514 (1887), cases;
1 [Hight V. Sackett, 34 N. Y. 451 (1866). 2 Story, Eq. § 1047, cases.
2 Enloe V. Eeike, 56 Ala. 5M (1876), Stone, J. See also » Christmas v. Eussell, 14 WaU. 84 (1871), Swayne, J.
Andrews v. Carr, 36 Miss. 578 (1853). See also Wright v. Ellison, 1 id. 16 (1863); Trist v.
s As to effect of, see generally 36 Am. Law Eeg. 509- Child, 21 id. 447 (1874), cases; Ketohum v. St. Louis, 101
12 (1887), cases; May v. First Nat. Bank of Attleboro, U. S. 316-17 (1879), cases; Basket v. Hassell, 107 id. 614
806. (1882); Florence Mining Co. v. Brown, 124 id. 391 (1888);
Sup Ct.'lll. (1887), cases:W. 13& N.S. E.10 Bep.
(1844); Guthrie's Ap; Lewis V. Traders' Bank, 30 Minn. 134 (1883), cases;
* Nesmith v. Drum, 8
peal, 93 Pa. 273 (1879); 2 Story, Eq. § 1040. Goodsell V. Benson, 13 E. I. 230 (1881), cases.
«3 Story, Eq. §§ 1039-40; Mitchell v. Winslow, 2 s James v. Newton, 142 Mass. 370-78 (1886), cases.
t See 2 Kent, 532.
Story, E. 638-44 (1843); Butt v. EUett, 19 WaU. 544
' 1 Story, Eq. I 370; 2 id. § 1036.
(1873); Traeri;. Clews, 115 U. S. 540 (1885), cases; Hol- « See 2 Kent, 397, 632.
royd V. MarshaU, 10 H. L. 209-20 (1862); 2 Bl. Com. 442.
 ASSIGN 84 ASSIZE

or hypothecation as a security in the nature of a from the bankrupt with notice of all outstandii
mortgage.' rights and equities. Whatever the bankrupt could c
A voluntary assignment for the benefit of creditors to make the assigned property available for the ge:
is a contract — a transfer in trust for a nominal con- eral creditors he may do, and he may recover pro]
sideration and the further consideration of a distribu- erty conveyed in fraud of the rights of creditors ar
tion of the proceeds of the assigned property among set aside fraudulent conveyances.'
all the creditors.^ To place parties on equal terms, an assignor of
An assignment by a defendant, pendente lite, does chose in action cannot be a witness against his a
not necessarily defeat the suit, but his assignee is
signee unless both are living and the latter's testimon
bound by what is done against him. The assignee may can he obtained. Where there is entirety of interes
come in by appropriate application and make himself declarations of the assignor, made previous to tl
a party, or he may act in the name of his assignor. transfer, bind the assignee; but, otherwise, he cannc
Such assignment carries with it an implied license to disparage the title of an innocent assignee or vendee
use the assignor's name to protect the right assigned.^ Compare Conveyance, 2; Transpek. See Chosi
Every demand connected with a right of property, Bankruptcy; Damnosa, Hsereditas; Lis, Pendens
real or personal, is assignable. But not — an ofBcer's Novation; Pekishable; Prefer, 2; Trust, 1; Witnesi
pay; a Judge's salary; a soldier's pensiori; an action ASSISE. See Assize.
for fraud, negligence, or tort; a personal service or
trust; a naked power; a right of entry for a condition
ASSISTANCE. Help, aid ; furtherance.
broken; nor, without notice to the insurer, a policy of "Writ of assistance. A process issuer
insurance; nor, at common law, a chose in action, or from a court of equity to enforce a decree
any right pendente lite.* as; to place in possession a purchaser of mort
"Where there is no restriction in any statute, in the gaged premises sold for a mortgage debt
articles of association or the by-laws, as to the dispo- after he has received a deed.
sition ofproperty, the directors of a corporation may
make an assignment for the benefit of its creditors. ^ Power to issue the writ results from the principl
The assignee is bound by a covenant tliat inms with that jurisdiction to enforce a decree is co-extensiv
the land. See Covenant. with jurisdiction to hear and determine the rights o
An assignee for the benefit of creditors is a trustee the parties — that the court does complete justice b;
for the creditors mainly, but, in some respects, for all declaring the right and affording a remedy for its er
joyment. But, as the execution cannot exceed th
parties.* decree, the writ can issue only against a party boun
He is but the hand of the assignor in the distribu-
tion of his estate among his creditors. He enjoys by Athepurchaser
decree. •> under a decree for the foreclosure o
the rights of the assignor only; he is bound wher^the
assignor would be bound. He is not the representa- a mortgage has a right to the writ to obtain possessioi
tive of the creditors, and is not therefore clothed with as against parties and persons made tenants or trans
their powers; nor is he a bona fide purchaser for ferees after the suit was begun.s
value, but a mere volunteer only,' ASSIZE.6 Originally, an assembly me
After the trust has been executed the assignor's for the purpose of ascertaining somethitij
former interest revests in him, as if it had never been judicially: a jury, or court; a session or sit
out of him. 3
ting ; then the place where, as also the tim
The title which vests in an assignee in bankruptcy
by the assignment relates back to the date of filing ■when, the session was held, the writ unde
the petition.' Such assignee represents the general which it convened, the finding or resolution
or unsecured creditors, and his duties relate chiefly to and the proceedings as a whole. Hence — i
their interests. As to every thing, except fraudulent
regulation, an ordinance, a statute, — some
conveyances and preferences, he takes as a purchaser
thing determined and established ; a tax o
1 [Dias V. Bouchand, 10 Paige, Ch. 461 (1843), Wal- tribute of a definite amount ; also, the reduc
worth, Ch.
ing a thing to certainty — in number, quan
2 Blackbume's Appeal, 39 Pa. 165 (1861), Thompson, J.
tity, quality, weight, measure, time, place.
= jE»p. South & North Alabama E. Co., 95 U. S. 226
(1877), Waite, C. J. At first, the jury who tried a cause, " sitting tc
<1 Pars. Contr. 223; 3 id. 480. gether" for that purpose. Then, by a figure, th
» Hutchinson v. Green, 91 Mo. 375-76 (1886), cases. 1 Dudley v. Easton, 104 U. S. 103 (1881), Waite, C. J
«2 Bl. Com. 480; 3 Pars. Contr. 465, 489. ' 1 Greenl. Ev. §§ 190, 172.
'iJe Fulton's Estate, 51 Pa. 211-12 (1865), Agnew, J.; 3 L. assistere, to approach; ad-stare, to stand by.
Mellon's Appeal, 3 id. 129 (1858), Strong, J. < Terrell v. Allison, 21 Wall. 291 (1874), cases. Field, J.
» Jacoby v. Guier, 6 S. & E. 451 (1821). As to the ef- Howard v. Milwaukee, &c. E. Co., 101 U. S. 849 (18791
fect of assignor's fraud upon the assignment, see 21 Boyd V. United States, 116 id. 625 (1886).
Am. Law Eev. 901-35 (1887), cases; as to conflict of •2 Jones, Mort. § 1663; Watkins v. Jerman, 36 Ear
laws respecting assignments for creditors, 1 Harv. Law 467 (1887), cases.
Eev. 259-64 (1888). « P. assise, assembly— of judges; decree; impost
« Conner v. Long, 104 U. S. 230-44 (1881), cases; Inter- 0. P. asseoir, to sit near, assist a judge: L. assidert
national Bank v. Sherman, 101 id. 406 (1879). to sit near or together.
 ASSOCIATE 85 ASSOCIATE .

court or jurisdiction wMch summoned the jury by a sons named or those who may come in afterward: as,
commission of assize. Hence, the judicial assemblage in acts of incorporation."
held by the king's commission in the various counties Articles of association. The instrument
were (and still are) termed, in common speech, '^the which creates the union between the mem-
assizes." By still another figure, an action for recov-
ering possession of lands — because the sheriff sum- bers of an incorporation, specifies the object
mons a jui'y or assize.^ and form of organization, the amount and
Designates the court, thp place, or the time where shares of capital, the place of business, the
the judges of the superior courts of Westminster try corporators, etc. ; and is distinguishable from
questions of fact, issuing out of those comis, ready
the charter and the by-laws.
for trial by jury. "The assizes" are the sittings
of the judges at the various places they visit on Where individuals volimtarily associate together
and adopt a name or description intended to embrace
y
their circuits, four times a year in vacation. "As- all of its members, and under which its contracts are
size "also sometimes denotes a jury, and sometimes made and its business carried on, such company can
a writ.' neither sue nor be sued by the name adopted, but in
' ' Assizes "is the word most in use in modem books.
It often signifies a single court, the individual names as partners. =
To constitute a "partnership " there must be a com-
ASSOCIATE.' A person united with an- munity of interests for business purposes. Hence,
other in business, office, enterprise, or other voluntary associations or "clubs," for social and
interest. benevolent purposes and the like, are not proper part-
Associates are persons united, or acting nerships, nor have their members the powers and re-
sponsibilities ofpartners. Thus, for example, while
together by mutual consent or compact, in the members of a Masonic lodge may not be held as
the promotion of some common object.' partners for a debt incurred by the lodge, each mem-
Associate attorney or counsel. A law- ber who assented to or advised the outlay may be held
yer who assists another in a cause ; co-coun- liable as an individual. ^
sel ; a colleague. Associations for mutual benevolence among their
Associate in crime. A confederate in own members are not associations for purely " chari-
the commission of a criminal offense ; an ac- The tablemembers
uses." • of a committee, authorized to effect
complice, q.V. the incorporation of a voluhtary association, who neg-
Associate judge or justice. A judge lect to perfect the re-organization, may be held as
who serves with another on the same bench, partners as between themselves, and non-partici-
pating members of the association be relieved from
in distinction from the "chief" justice, the
liability.^
"president" or "presiding" judge, g. i'. See Bank, 2 (2); Building; By-Laws; Charter, 2;
Association. 1. The act or state of being Chohch; Clubs; Company, 3; Corporation; Partner-
joined in common interest. ship; Stock, 3(3).
2. An organization of persons without a 4. Association of words, see NosciTtJB.
charter, for business, humanity, charity, cult-
ure, or other purpose; any unincorporated ' [Lechmere Bank v. Boynton, 11 Cush. 330, ante.
society or body. ' Covington Drawbridge Co. v. Shepherd, 20 How. 233
3. A body of persons invested with some, (1857), Taney, C. J.; Beatty v. Kmtz, 2 Pet. *SS5 (1839),
Story, J.; 27 Alb. Law J. 336-29 (1883), cases.
yet not full, corporate rights and powers : as, s See Thomas v. Ellmaker, 1 Pars. Sel. Eq. Cas. 98,
a joint-stock association ; a buUding and loan 104, 111-12 (1844), cases; Laford v. Deems, 81 N. T. 614
association. (1880); Ash v. Uuie, 97 Pa. 490 (1881), cases; Be St.
When improvement of the members is the pre- James's Club, 13 Eng. L. & Eq. 689 (1852); 3 Kent, 23;
cases infra.
dominant idea, "society" seems to be the preferred
•B^ord; and "company" or "partnership," when the 4Babb V. Eeed, 5 Eawle, 160 (1835); Gorman v. Rus-
idea is the making of profits. sell, 14 Cal. *53."j-38 (1860), cases. But some cases hold
"Association" ex vi termini implies agreement, that Masonic lodges are "charities," — Duke v. Fuller,
compact, union of minds, purpose, and action. May 9 N. p. 536 (1838); Burdine v. Grand Lodge, 37 Ala. 478
apply to those who are already associated with per- (1861); Indianapolis v. Grand Master, 25 Ind. 518 (1865);
Savannah v. Solomon's Lodge, 63 Ga. 93 (1874). Contra,
Bangor v. Rising Virtue Lodge, 73 Me. 428, 4.34 (1882) —
1 3 Bl. Com. 186, 57, 60; 4 id. 369, 434; 3 id. 331; 1 id. the funds of a " public charity " are derived from gifts
148, 411. and devises, and it is open to the whole public,— Ap-
a 3 Bl. Com. 58-59.
' Til. associatus, joined to; ad, to; socius, a follower, pleton, C. J. v. Brigham, 127 Mass. 24 (1879) ; Volger v.
5 See Ward
companion. ■Ray, 131 id. 439 (1881) ; Ferris v. Thaw, 72 Mo. 446 (1880).
4 [Lechmere Bank v. Boynton, 11 Cush. 383, 379 (1853), As to unincorporated associations, see generally 17
Shaw, C. J. Cent. Law J. 343-46 (1883), cases.
 ASSUME
AStEEISK

ASSUME. To take to or upon one's self. spent for another at his request; a balance due on
See Assumpsit. account; damages for Injury fromfwant of integril
or of care or skill assumed to be possessed or exerte(
A person who *' assumes a lease " takes to himself See CouBT, 4 (1), Common.
or accepts the obligations and the benefits of the lessor
under the contract.^ Indebitatus assumpsit is founded on what the l£
"Assumed " may be used in the sense of claimed; terms an implied promise on the part of the defenda
as, in saying that assumed facts must be proved before to pay what in good conscience he is bound to pay
the main fact can be inferred." (Compare Presume. the plaintiff. . . The law never implies a promise
pay unless someduty creates the obligation; and nev
ASSUMPSIT.' He engaged or agreed a promise to do an act contrary to duty or to lav
to do a thing. Nunquam indebitatus, he never undertook, is t
Describes a contract, not under seal, made name of the general issue in the indebitatus specie
but has been used, like nil debet, in debt on simi
■witli another for his benefit^ also, the com- contract.
mon-law form of an action of trespass upon
Non assum.psit. He has not unde
the case for damages or failure to perform' taken, or did not undertake. The name i
such coiitract.*
" Debt " lies for an ascertained sum. the general denial in the foregoing actions.
originally lay for an unascertained-sum, but may now Non assumpsit infra sex annos. He d
be brought for a fixed sum. not undertake within six years. The plea <
Express assumpsit. An engagement the statute of limitations in these actions
in positive terms to do some particular thing ; Compare Actio, Nonaccrevit, etc.
a^, a!n obligation to pay a promissory note. See further Action, 3; Case, 3; Contract; Cc
Implied assxunpsit. An engagement enant; Debet; Debt; Promise.
which the law will infer from circumstances ; ASSUEAWCE.4 Certainty; warrant;
indemnity.
such obligation as reason and justice dictate,
1. Legal evidence of the transfer of titl
and as the law presumes a man has con-
tracted to perform ; as, to pay a judgment, a whereby eveiy man's estate is assured
him, and all controversies, doubts, and dif
forfeiture, or a penalty.*
The presumption in such case is that every man culties are prevented or removed. 5
engages to do what duty or justice requires him to do. " The com/mon assurances of the realm are by matt
in pais, by matter of record, by special custom, aj
Indebitatus assumpsit. He, being in-
debted, undei'took. The species of the action by Collateral
devise.' assurance. An assurance :
which charges a promise to pay from the
mere fact that an indebtedness exists. addition to, or over and above, some oth
assurance ; as, a bond, to the covenants in
Rests upon an implied promise to pay what mortgage.
in good conscience ought to be paid.^ Future assurance. Such transfer in tl
Called also common or general assuTnpsit
The promise, the consideration (the facts oiit of future as will cure a defect in a title, — a
which the obligation grows), and the breach, should by removing an incumbraiice, by procurii
be averred-* a quitclaim deed. Whence " covenant fi
Special assumpsit. The agreement, and
the form of action therefor, which rests upon future assurance." «
3. Insurance; in England, llfe-insuranc
an express undertaking. Whence assurer, the assured, re-assuranc
In declaring upon a special assumpsit, the under- See further Insurance.
taking should be set out in the precise terms used.
ASTERISK. Indicates the words
The action of assumpsit lies for — the worth of
work done; the value of goods bought and delivered; which the pages of the first edition of a tes
money received which shoidd not be retained; money book or volume of reports began ; enlarg(
■ Cincinnati, &c. E. Co. v. Indiana, &c. E. Co., 44 Ohio
13 Bl. Com. 162; Dermott v. Jones, 8 Wall, 9 (188
St.' Jenkins
314 (1886).
v. State, ,
63 Wis. 63 ■(1885).
V Nash V. Towne, 5 id. 702 (1866); Gaines ■«. MiUer, ]
s L. assumpsit, he has undertaken, he undertook: U. S. 397 (1884); National Trust Co. v. Gleason, 77 N.
400 (1877).
assumere, to take upon one's self.
< See 8B1. Com. 168-67; Carrol v. Green, 92 U. S. 513 = Bailey v. N. T. Central E. Co., 82 Wall. 63&
(1875); Hendrick ■!). Lindsay, 93 id. 143 (1876); Boston, (1874),
&c. Smelting Co. v. Smith, 13 E. 1. 36 (1880), cases. s See cases," Clifford,
3 Bl. Com. 305, J.308.
'3 Bl. Com. 158, 169, 162; Lloyd v. Hough, 1 How. * F. asseiXrer, to make secure: L. ad-sine-cura.
169 (1843); Wallis v. Shelly, 30 F. E. 748 (1887). = 2 Bl. Com. 294.
• 3 Bl. Com. 155, 168. « [4 Kent, 468.
 87
ASTUTE AT

or annotated editions being printed as ex- That see" atIn,a 1place

place, (1). " may not be equivalent to in the
plained under A, 1, par. 3.
Authority to construct a railroad from A to B, or
ASTUTE. When it is said that the courts
beginning at A and running to B, confers authority to
are "not astute" to do a thing, (as, to infer commence the road at some point within A, and to end
fraud from negligence), the meaning is that it at some point within B. "At," like "from" and
they are disinclined, not disposed, to do the 'to," is to be taken exclusively, according to the sub-
particular thing.
^ject-matter .i
The description of a survey as beginning " at " a
Thus, they are not only not predisposed but are re- tree does not necessarily fix the point at the center of
luctant or avei-se to accepting a conclusion involving the tree. The deed may be interpreted in conformity
intended wrong.
with the practical effect given it by the parties, as by
ASYIiUM.i Retreat, refuge ; protection, actual occupancy to a line beginning at the surface of
immunity.
the Compare
tree.'
1. A place of refuge and protection for By; In, 1; Into; Near; On; To: Upon, 1;
Within.
criminals, and debtors.
At interest. See Interest, 3.
** Asylum " includes not only place, but shelter, se-
cimty, protection. Thus, within the meaning of the At large. 1. In the full extent; infuU;
extradition treaty ot 1868 (15 St. L. 029), a fugitive at length ; in extenso: as, for a court to state
from justice in Italy " seeks asylum " in this country at large that a thing should not be done ; or
when he claims the use of a Territory as an asylum.^
See Extradition. for proceedings to be recorded at large, in-
2. Immunity from law ; as, the status of a stead of by memoranda.'
2. Representing a State or district in its
public minister.
3. An institution for the unfortunate. See ■whole extent : as, a delegate, elector, or Con-
Sectaman. gressman atlarge.
3. Applicable to all of a State, all the
AT. 1. The prefix at-, the Latin ad, q. v.
2. The English preposition, expressing the States, or the whole territory of the United
relation of presence, nearness in place or States; general: as, statutes at large, the
United States Statutes at Large.
time, direction toward. 3
The word is somewhat indefinite ; it may 4. In general ; general, as opposed to spe-
cial, particular, preferred, secured: as, the
mean "in," "within," or "near." Its pri-
mary idea is nearness, and it is less definite bearer at large, creditors at large.*
5. Unconfined; unrestrained; in the free
than in or on.*
" At the terminus " of a road may mean near the exercise of natural freedom or propensities:
terminus.* as, an animal suffered to run at large.
In ordinary speech, "at "more generally means " Eunning at large " means strolling about without
" within " than *' without." Thus, at a town or at a restraint or confinement, as, wandering, roving, or
county means at some .place within the town or rambling at will, unrestrained. The restraint need
county, rather than at a place without or even at the not be entirely physical; it may depend much upon
outermost verge of, but not in, such town or county. the training, habits, and instincts of the animal. The
In indictments, where the utmost precision is neces- sufficiency of the restraint is to be determined more
sary, the fact is generally stated to have been done at from its effect, its controlling and restraining influ-
the place; and, if it were not done in the place, the ence, than from the nature or kind of animal.'
venue would be wrong. " At," like "from," has not Whether, in a given case, physical or moral power
then, generally speaking, an exclusive signiflcation: over the animal is necessary, depends upon its nature,
as, in the expression that a canal shall begin "at the age, character, habits, discipline, use, and other cir-
District of Columbia." '
cumstances.*
1 Union Pacific E. Co. v. Hall, 91 U. S. 348 (1875),
" L. asylum, » place of refuge: Gk. a'aylos, imde-
spoiled, unharmed. Strong, J.; Mason v. Brooklyn City, &c. E. Co., 33
' Be De Giacomo, 12 Blatch. 395 (1874), Blatchf ord, J. N. Y. 377-78 (1861;. . . ^
» Webster's Diet. 2 Stewart v. Patrick, 68 N. Y. 454 (1877).
* State (West Jersey B. Co.) v. Receiver of Taxes, 38 s See 3 Bl. Com. 392; 95 U. S. 420.
N. J. L. 802 (1876), Dixon, J. ; State v. Bay, 50 Ala. 178 * See 2 BI. Com. 407.
(1873), Peters, C. J. 'Eussell V. Cone, 46 Vt. 004 (1874), Peck, J.; Bert-
'Chesapeake & Ohio Canal Co. v. Key, 3 Cranch, C. whistle V. Goodrich, 53 Mich. 459 (18S4). i,
C. 606, 604 (1829), Cranch, C. J. ; The Mohawk Bridge 'Jennings v. Wayne, 63 Me. 470 (1874), Dickerson, J.
Co. u. Utica, &c. E. Co., 6 Paige, 562 (1837); Mason v. See also 52 Cal. 653; 49 Conn. 113; 53 Iowa, 632; 70 id,
Brooklyn, &o. E. Co., 35 Barb. 377 (1861); Homer u. 403; 26 Kan. 868; 10 Mete. 382; 10 Allen, 151; 26 Minn.
Homer, L. E., 8 C. D. 764 (1878); 28 Alb. L. J. 44. 157; 21 Hun, 249; 50 Vt. 130.
 ATHEIST ATTACH

At law. 1. According to the course of the Attachment of the person. A writ in

common law; in law, as opposed to "in the nature of a capias, directed to the sher-
equity" or according to the principles and iff, and commanding him to attach or take
procedure in courts of equity or chancery. up the defendant, and bring him into court;'
3. For the practice of law : as, an attorney also, the summary proceeding itself.
or counselor-at-law. See Attorney. Employed to compel the appearance of a defend-
At least. Compare More oe Less. ant; to enforce! the attendance of a juror or a wit-
A publication sixteen months before a certain day ness;'' to bring before the court one charged with
■was held valid under a statute directing tliat the pub- contempt. 3
The ofScer makes caption of the person named in,
lication should- be made " at least six months " prior
to that day.i the same manner as upon an ordinary process for ar-
When a city charter requires that a resolution rest. Instead, however, of holding him to bail he brings
him corporally before the court, that he may do the
ordering work on a street shall lie over " at least four
thing required or show cause why he has not or should
"Weeks after its ^troduction," a resolution introduced not do it. Fines for disobedience are often imposed.
on a Monday may be acted upon on the fourth Mon- See Contempt.
day thereafter.*
At length.. See At Large, 1 ; Entry, II, 6. Attachment of property. An actual
At matuxity. See Maturity, 3. seizure of goods, that they may be held to
At once. At one and the same time.3 satisfy the judgment which the plaintiflE may
At par. Of nominal value ; worth the recover. <
face value. See Par, 3. The object is to take out of the defendant's
At sea. On the voyage. See Sea. possession and transfer into the custody of
At sight. On view ; on presentation. See the law, acting through its legal ofiicer, the
Sight. goods attached, that, if necessary, they may
ATHEIST. One who disbelieves in the be seized in execution and be disposed of and
existence of a God who is the rewarder of delivered to the purchaser. Hence, in this
sense, to attach is to take actual possession
truth ajid the avenger of falsehood.* See
Ihpidel; Oath; Religion. of the property. 5
Originally, a writ issued out of the court of common
ATIiANTIC. See Cable, Submarine.
pleas, grounded upon the non-appearance of the de-
The Gulf of Mexico is not the " Atlantic coast." * fendant atthe return of the original writ. The sheriff
ATMOSPHERE. See Air. was then commanded to attach him by taking gage,
ATS. At suit of; equivalent to ads — that is, certain of his property, which the defendant
ad sactam. forfeited if he did not appear; or by making him find
safe pledges or sureties for his appearance.*
ATTACH.6 1. To tie to, fasten to, aflBx, Also the first and immediate process, without previ-
annex, q. v. ous summons, upon actions of trespass vi et armis or
2. To lay hold upon by legal authority ; to for other injuries— trespasses against the peace, as,
seize, take, arrest. To take or touch, — a pre- deceit and conspiracy, where the violence of the wrong
cise expressioil of the thing actually done.' requires a speedy remedy. «
Upon execution of a bond to discharge the attach-
When used without qualification in a stat- ment the latter becomes discharged, the grounds
llte refers to the taking and holding of the per- thereof are no longer in controversy, and the obligors
son or property on mesne process, subject to become bound absolutely to pay such judgment as
the further order of the court or to the final may be recovered.^
Attachment of vessel. Allowed after
judgment in the case.s
libel fiJed for work done, materials or supplies
' HpfEman v. Clark Coufity, 61 Wis. 7 (1884); Ward ti.
Walters, 63 id. 43 (1885); ib. 314. 1 3 Bl. Com. 443.
''SBl. Com. 369.
'Wright V. Forrestal, 65 Wis. 348 (1886).
' Platter v. Green, 26 Kan. 868 (1881). 3 4 Bl. Com. 283.
'Commonwealth v. HiUs, 10 Cush. 533 (1862), » Dunklee v. Fales, 5 N. H. 528 (1S31), Richardson,
Dewey, J. C. J. ; Bryant ii. Warren, 51 id. 215 (1871).
5 New Haven Saw Mill Co. v. Security Ins. Co., 7 'HoUister v. Goodale, 8 Conn. 334 (1831), Hosmer^
F.E. 847(1881). C. J. See also Adler v. Roth, 2 McCrary, 447 (1881),
» F. attacher, to fasten, tack to: L. attingere, to cases; 5 Mass. 163; 12 id. 497; 3 Minn. 406; 51 Pa. 263-
touch,— 8 Conn. 334.
' HoUister v. Goodale, .8 Conn. 334 (1831), Hosmer, 55 "Vt.
3 Bl,423; 76 Va.
Com. 280; 318;
Bond21 v.W. Ward,
Va. 211. '
7 Mass. *128 (1810). '
C. J. ; Pennsylvania R. Co. v. Pennock, 51 Pa. 253 (1865). ' Ferguson .,. Glidewell, 48 Ark. 201-4 (1886), cases
" [Beardsley v. Beecher, 47 Conn. 414 (1879), Loomis, J. pro and con.
 ATTACH ATTAINDER

furnished, wharfage due, etc., and is upon count of the proceeding. The ground upon which the
writ may be obtained and the details of practice vary
the interest of the owner or part-owner. in the different States. Speaking generally, the rem-
Domestic attachment. Issues against a edy is allowed for an ascertainable amount due; the
resident of the State who is charged with plaintiff acquires such rights as the defendant had at
fraud in contracting a debt or with remain- the time of the levy; the levy itself constitutes a lien;
and attachments levied simultaneously share pro rata.
ing absent or absconding to defraud his In many States the defendant may substitute a bond
creditors. Foreign attachment. Issues with sureties, and thereupon resume possession of the
against a non-resident who evades service of property. An attachment is " dissolved " by final
process — in the view that a levy and sale of judgment entered for the defendant, or, on motion,
for a substantial defect apparent upon the face of the
his property will serve the purpose of an ap-
pearance byhim and meet the ends of justice. proceedings. 1
See Garnish; Oedbe, 2, Charging; Receiptor;
A "foreign attachment" is a suit against a per- Res, 2; Seizure.
sonal defendant by name; and, because of inability to
ATTACK. See Assault ; Collaterally.
serve process on him on account of non-residence, or
for other reason mentioned in a statute, the suit ATTAINT)ER.2 Staining; corrupting;
is commenced by a writ directing the proper officer to pollution of blood; extinguishment of in-
attach suflcient property of the defendant to answer heritable quality of blood.
any judgment that may be rendered against him. It When sentence of death is pronounced the
is lilce an admiralty proceeding m remA
The foundation of the proceeding is that the de- immediate, inseparable consequence at com-
fendant is beyond, while his property is within, the mon law is attainder: the condemned is
reach of process. ^ without the protection of the law, his estates
Attachment of property was introduced at an early
date in London, chiefly to operate upon debtors who are forfeited, his blood corrupted. 3
The word is derived from attiricta; the stain or
covdd not be arrested because not subject to jurisdic- corruption of a criminal capitally condemned. The
tion. As these persons were " foreigners " the process party attainted lost all inheritable quality — he could
was called /or-etpm attachment or attachment of for- neither receive nor transmit property or other rights-
eigners' goods. ^
Execution-attachment. An attachment of inheritance.*
Bill of attainder. A legislative act which
in execution of a judgment. A proceeding
inflicts punishment without a judicial trial.*'
in satisfaction of a judgment — by seizing If the punishment be less than death, the
property, rights, or credits in the hands of a act is termed a bill of pains and penalties.^
debtor or bailee of the defendant. Bills of attainder (or acts of attainder as
The proceeding of attachment of property was de- they were called when passed into statutes)
rived from the customary law of foreign attachment
in London, legislatures having modtfled the use of it, were laws which declared certain persons at-
from time to time, as seemed proper. At first it was tainted — their blood corrupted so that it lost
merely ancillary to other proceedings — in the nature
of a proceeding in equity intended to enjoin a person heritable equality.*
" No Bill of Attainder . . shall be passed." »
from parting with the property of an absent debtor in " No Attainder of Treason shall work Corruption of
order to compel the debtor's appearance, and being, Blood, or Forfeiture except during the Life of the
in default of an appearance, an adjudication of the Person attainted." ' "No State shaU . pass any
property toward the liquidation of the demand.^
Proceedings by attachment are not purely in rem; of Attainder."
BillWithin the meaning ' of the Constitution bills of at-
they are rather proceedings against the interest of the tainder include bills of pains and penalties. In these
defendant and those claiming under him.' cases the legislative body, in addition to its legitimate
In New England attachment of a defendant's prop- functions, exercises the powers and offices of a judge:
erty, rights, and credits is an incident to a summons it assumes judicial magistracy; it pronomices upon
in all actions based upon contract. Elsewhere, the
■ See Brandon; Drake; 1 Bouvier, 202-3. On attach-
writ seeoiB to issue only upon cause shown by affi-
davit, accompanied by a bond designed to secure the ing debts, see 18 Cent. Law J. 468 (1884), cases.
"F.ateindre, to convict,— Skeat. F. attaindre, to
defendant in such damage as he may sustain on ac-
stain, accuse: L. ad-ttngere, to reach to, touch,—
1 The Hine v. Trevor, 4 Wall. 571 (1866), Miller, J. Webster. L. attinctxis, stained, blackened,— 4 Bl.
"Pennsylvania E. Co. v. Pennock, 51 Pa. 2S0 (1865); Com. 380; 39 N. Y. 430; 4 Wall. 387.
Fiteh V. Boss, 4 S. & R. '564 (1818). 3 4 Bl. Com. 380-89; 2 id. 251-56.
» See Brandon, For. Att. 4. ' [Exp. Garland, 4 Wall. 387 (1866), Miller, J.
6 Cummings v. Missouri, 4 Wall. 323 (1866), Field, J.
*See Brandon, For. Att. 4; Drake, Att. |§ 4-5;
Waples, Att. §§ 3-4. « Constitution, Art. I, sec. 9, cl. 3.
sMegee v. Beime, 39 Pa. 62 (1861); Doe v. Oliver, 2 ' Ibid., Art. in, sec. 3, cl. 2.
Sm. L. C, 7 Am. ed., 809, cases. "Ibid., Art. I, sec. 10.
 ATTEMPT 90 ATTEMPT

the guilt of the party, without any of the forms or intent and act — an intent to commit a crime and an
safeguards of trial; it determines the sufSoiency of afct, done in pursuance thereof, which falls short of
the proofs produced, whether conformable to the rules the thing intended. While preliminary preparations,—
of evidence or otherwise; and it fixes the degree of conditions not causes, — may co-exist with a guilty in-
punishment in accordance with its own notions of the tent, they may not advance the conduct of the party
enormity of the offense. Such bills are generally di- beyond the sphere of mere intent. ^
rected against individuals by name, but they may be While "attempt" conveys the idea of physical ef-
against a whole class; and they may inflict punish-
fort to do an act, or to accomplish an end, " intent " ex-
ment absolutely or conditionally.! ' presses the quality of mind with which the act is done. ^
In England attainders of treason worked corrup- An "intent" implies purpose only; an "attempt"
tion of blood and perpetual forfeiture of the estate of both purpose and actual effort to carry the intent into
the person attainted to the disinherison of those who
execution.^
would otherwise be his heirs. Thereby innocent chil- "Intent" indicates the purpose existing in the
dren were made to suffer because of the offense of mind; "attempt" the act to be committed.*
their ancestor. When the Constitution was framed A statutory punishment for an attempt to poison
this was felt to be a hardship — rank injustice. The is not incurred by an unexecuted determination to
provision was intended for the benefit of the chil- poison, though preparation is made for the purpose;
dren and heirs alone,— a declaration that the children nor by the actual administration of a substance not
should not bear the iniquity of the fathers. In this poisonous, though believed to be so.'
light is to be construed the Confiscation Act of 1882.2 Merely delivering poison to a person and soliciting
Courts of justice were employed only to register him to place it in a spring is not " an attempt to ad-
the edict of Parliament and to carry the sentence into minister poison" — the act not approximating sufft-
execution. 8 ciently near to the commission of murder to establish
In England bills of this sort have been usually
an attempt to commit it, within' the Pennsylvania act
passed in times of rebellion, of gross subserviency to of March 31, 1860, § 82, which is a copy of 1 Vict. (1837),
the crown, or of violent political excitements.*
Shortly after the Eevolution, acts of attainder were c. 85, sec. 3.8
When the attempt to commit the principal or ulti-
passed in several of the States. In England, by 33 and mate offense is made, the distinct offense of attempt-
34 Vict. (1870), attainder upon conviction is abolished.
See Test, Oath, ing is complete.'
Every attempt to commit a felony not murder is a
ATTEMPT. 1, V. To perform an act misdemeanor; and, generally, an attempt to commit
toward accomplishing a purpose ; to do any- a misdemeanor is a misdemeanor 'of the same nattn:e.
But merely "soliciting " another to do an act is not an
thing byphysical exertion tending to produce
an unlawful result. attempt to do that act.s
It cannot be maintained as a universal principle
To make an efifort to effect an object; to that an attempt to commit a misdemeanor is, by the
common law, a misdemeanor. The law has declared
make a trial or experiment ; to endeavor ; to
many acts to be misdemeanors where the purpose of
use exertion to a purpose. 5 the offender was not consummated, although, if con-
3, n. In its largest signification, a trial or sum ated, itwould have been an offense only of this
physical effort to do a particular thing.c grade. In such cases there must be an unlawful pur-
pose and an act committed which would carry it into
■ Can only be made by an actual ineffectual
deed done in pursuance and in furtherance immediate execution, unless prevented by some coun-
teracting force or circumstance.' See Administer, 1.
of the design.^
Consists of an act of endeavor to commit a 1 United States v. Stephens, 12 F. E. 55 (1882); Dea(}y,
particular offense, and an intent by that act D. J.; 14 Cal. 160; 60 id. 71; 62 id. 297; 1 Whart. Cr. L.
alone, or in conjunction with other necessary §§178,181; 1 Bish. Cr. L. § 668.
= [State V. Marshall, 14 Ala. 414-15 (1848).
acts, to commit it.^ = Prince v. State, 35 Ala. 369 (1860); 14 Ga. 59.
Both these elements must be specifically charged.' * Stabler v. Commonwealth, 95 Pa. 321 (1880).
It is impossible to comprehfend all cases in a defini-
» State V. Clarissa, 11 Ala. 60 (1847).
tion that does not necessarily run into a mere enumer-
ation of instances. There must be a combination of ' Stabler's Case, supra. See also Eegina v. Williams,
47 B. C. L. 689 (1844); Eegina v. Lewis, 38 id. 207 (1840);
1 Cummings v. Missouri, 4 Wall. 323 (1866), Field, J. Eegina v. St. George, ib. 193 (1840). Compare People
' Wallach ii.Van Eiswick, 92 U. S. 210 (1875), Strong, J. V. Bush, 4 HiU, 133 "(1843). See 2 Steph. Hist. Cr. L.
See also 2 Bl. Com. 256.
» Drehman v. Stifie, 8 WaU. 601 (1869). Eng. 221-25.
' State V. Decker, 36 Kan. 720 (1887); Kan. Crim. Code,
* 2 Story, Const. § 1344.
s Commonwealth v. McDonald, 5 Cush. 367 (1850), §§ B4283,Bl.121.
Com. 221, 241; Stabler's Case, supra; Smith •«.
Fletcher, J. Commonwealth, 54 Pa. 211-13 (1867), cases; Kelly u
« Lewis V. State, 35 Ala. 387-^ (1860), cases. Stone, J. Commonwealth, 1 Grant, 484 (1858); Eex v. Butler, 25
' Uhl II. Commonwealth, 6 Gratt. 709 (1849). E. C. L. 441 (1834).
s State V. WeUs, 31 Conn. 212 (1863), Butler, J. ; Gray v. » Lamb v. State, Sup. Ct. Md. (1887), Bryan, J., decid-
State, 63 Ala. 73 (1879). ing that the solicitation of a woman to take drugs to pro-
 91
ATTEST ATTORNEY

ATTEST.i To bear witness to : to signify, intend an authentication by the clerk of the court so
as to make them receivable as evidence.'
by subscription of his name, that the person
ATTOB.N.^ To turn over: to transfer
has witnessed the execution of the particular
instrument. Compare Sign; Subsceibe, 1. service to a new lord ; to recognize as land-
In its strict sense to witness or bear wit- lord the ti-ansferee of a leasehold.
Attornment. The consent of a tenant to
ness to. The principal object in requiring
that an instrument shall be executed in the the grant of his landlord. 3
presence of witnesses is that they may see The acknowledgment by a tenant of a new
that the same is properly and fairly executed. landloi'd, and an agreement to become ten-
ant to the purchaser.*
But the ordinaiy use of the word, as applied As the feudal obligation between lord and vassal
to the execution of deeds, requires that ihe was reciprocal, the lord could not alien his seigniory
witnesses should attest in writing : the prin- without the consent of the vassal. This consent was
cipal end of which seems to be to preserve expressed by what was called " attorning " — profess-
evidence that the instrument was executed ing to become the tenant of the new lord: a doctrine
afterward extended to all leases for life or years. By
in the presence of the required witnesses.^ 4 and 5 Anne (1706), c. 16, no longer necessary to com-
To "attest" the publication of a paper as a last plete a grant or conveyance. *
will, and to " subscribe " to that paper the names of
the witnesses, are different things. Attestation is the ATTOENEY.6 One who is put in the
act of the senses; subscription, the act of the hand: place, stead, or "turn" of another to man-
the one is mental, the other mechanical. To " attest " age his affairs of law.' An attorney-at-Jaw ;
a will is to know that it was published as such, and to a lawyer.
certify the facts required to constitute an actual and
A person employed by another to act in his
legal publication; but to "subscribe" a paper pub- behalf; an agent.
lished as a wiU is only to write on the same paper the
names of the witnesses for the purpose of identifica- Formerly, one who in any manner acted in behalf
tion. There may be a perfect attestation in fact with- of another. 8
out subscription.3 Attorney-at-law. A person whose pro-
An " attesting " witness, under the Statute of Wills, fession isto represent litigants in the man-
is one who at the time of attestation would be compe- agement of their causes before the courts.
tent to testify in court to the matter.*
The last requisite to the validity of a deed is the Attorney-in-faot. One who serves an-
attestation or execution of it in the presence of wit- other as agent in the doing of a particular
nesses; necessary rather for preserving the evidence thing;, an agent for the transaction of an
than for constituting the essence of the deed,* act specified in a sealed instrument called a
The number of witnesses necessary to a valid will,
and whether there shall be any at all to a deed, and "letter" or "power" of attorney.
the particular facts to which they must certify, vary An attomey-at-law may act as an attorney-in-fact.
Any one who may serve another as agent may be
in the different States. •
See further Deed, 2; Presence; Will, 2; Witness. made an attorney-in-fact. Persons are often ai>-
pointed attorneys-in-fact to transfer certificates of
2. To certify to the verity of a copy of a stock, to acknowledge satisfaction of mortgages, to
public document. transfer realty, to collect rents, — to attend to all one's
Eeferring to judicial writings or copies thereof, as business generally in a particular place or country.
the copy of the record of a judicial process, seems to See Delegatus.

cure an abortion is not withm the act of 1868 of that

Persons acting professionally in legal for-
malities, negotiations, or proceedings by
State,^that the common-law rule was not altered by
the act. Same case, 26 Am. Law Reg. Ml (1887); ib. ' Gass, &c. Manuf. Co. v. People, 4 Bradw. 615 (1879),
645-54, cases. See generally 17 Cent. Law J. 26-88, cases, McAllister, J.
45-50 (1883)— Irish Law Times (1882). ' At-turn'. F. atorner, to prepare, direct, dispose.
■ L. attestari, to be a witness to. See Testis. 3 Soudei-s V. Vansickle, 6 N. J. L. 317 (1826).
» Wright V. 'Wakefield, 4 Taunt. *223 (1812), Mans- * I jndley v. Dakin, 13 Ind. 389 (1859). See also Willis
field, C. J. V. Moore, 59 Tex. 636 (1883); Lyon v. Washburn, 3 Col.
s [Swift V. Wiley, 1 B. Mon. 117 (Ky., 1840), Eobert- 204-6 (1877); 1 Washb. E. P. 28.
fion, C. J . See also Be Downie's WUl, 42 Wis. 76 (1877) ; » 2 Bl. Com. 288-89, 72.
49 Conn. 249: Webster. ' F. attorner, to attorn, g. v.
* [Jenkins v. Dawes, 115 Mass. 601 (1874), Gray, C. J.; ^
S Kok. 350. ' 3 Bl. Com. 85.
» ■■' Our only High Bishop, only attorney, mediator,"—
» 2 Bl. Com. 307. See also Ladd v. Ladd, 8 How. 31-39 A Short Catechism (1553). " Attomies are denied me,
(1860), cases.
and therefore personally I lay my claim,"— Shakes-
"See Lord v. Lord, 58 N. H. 7 (1876); Dyer v. Dyer,
S7Ind.l7(1882). peare, Rich. H (1595), Act ii, s. 3. " Baptism by an at-
torney, by a proxy,"— Donne, Sermons (1640), p. 794.
 ATTORNEY 93 ATTORNEY

warrant or authority of their clients, may be an ofHcer of the court, holding office during good be-
regarded as " attorneys-at-law " within the havior. ^
He is an agent to conduct a suit to judgment and
meaning of that designation in this country.! execution. The utmost good faith is exacted of him
An attorney may be an " attorney-in-fact " toward- the court and his client. The authority in the
or "private attorney," or an " attorney-at- court to remove him is intended to secure the exercise
law" or "public attorney." The former is of this degree of fidelity. =
He is liable in damages for the want of such skill
one who is given authority by his principal and care as members of the profession commonly
to do a particular act not of a legal char-
possess and exercise in like matters.*
acter. The latter is employed to appear for He is not answerable for anything said relative to
the parties to actions, dr other judicial pro- the cause in hand, although it should reflect upon the
reputation of another and even prove groundless; but
ceedings, and is an officer of the courts.^ otherwise if he goes out of the way of legitimate
The word " attorney " alone does not necessarily
import tliat the person is an oii&cer of a court; ^ but, comment and willfully asperses character. ^ See
Slander.
standing unqualified, ordinarily it refers to an attor- Wittiout consent he cannot buy, except as trustee,
ney-at-law.=
an adverse iuterest touching the thing to which his
In this country the distinction between " attorney "
or " solicitor " and " counsel " is practically abolished. employment relates.'
He has a lien on papers or on a fund in his hands,
The lawyer in charge of a case acts both as solicitor
and counsel. His services in the one capacity and in as well as a right of action, for the worth of his serv-
the other cannot be distinguished.^ His fee cannot be included in damages sustained.
In practice when a member of the bar signs a ices.'
The reasons are: there is no standard by which fees
common -law pleading it is as "attorney; "when he are measured, some attorneys charging more, and
signs an equity pleading it is as " solicitor." The dis- some clients being willing to pay more, than others;
tinction arises merely from the two modes of proceed-
ing. He is counsel and attorney of the court in either more counsel are sometimes employed than are neces-
sary; and, if the rule were otherwise, the amount
case.' In courts of admiralty his title is " proctor." charged by attorneys and allowed by successful
February 5, 1790, the Supreme Court " ordered that
counsellors shall not practice as attomies nor attor- clients would be abused.^
He is answerable to the court for any misconduct
nies as counsellors in this court." August 12, 1801, it calculated to bring discredit on the court and reproach
was " ordered that counsellors may be admitted as
upon the administration of justice.^
attornies " on taking the usual oath.^ The power in a court to remove an attorney is in-
Compare Advocate; Barrister; Counsel; Lawter;
cluded in the power to admit him to practice. This
Proctor; Sergeant.
power win be exercised where his continuance in
In Federal courts a party may manage his cause
personally, as prescribed by the rules of court. '' So,
also, in the courts of the States. ' Exp. Garland, 4 Wall. 378,(1866), Field, J. ,
The form of oath taken and subscribed by a per- 2 Rogers ti. The Marshal, 1 Wall. 651 (1863), cases;
son applying for admission to practice before the Randall v. Brigham, 7 id. 540 (1868), cases; Be Paschal,
Supreme Court is as follows: "I, , do solemnly 10 id. 491, 496 (1870), cases.
swear (or af&i'm) that I will demean myself, as an at- ' Savings Bank v. Ward, 100 U. S. 198, 195 (1879);
tomey and counsellor of this coui-t, uprightly and ac- Dundee Mortgage Co. v. Hughes, 20 P. R. 39 (1884): 34
cording tolaw, and that I will support the Constitution Am. Law Reg. 197, 202-7 (1885), cases; Shattuck v.
of the United States." Bill, 142 Mass., 63-64 (1886), cases; 21 Am. Law Rev.
The order admitting an attorney to practice is a 238-57 (1887), cases; 22 Cent. Law J. 60 (1886),— from
judgment of the court that a party possesses the req- Law Times (Eng.).
uisite qualifications and is entitled to appear and ■• 3 Bl. Com. 29; Munster v. Lamb, 49 L. T. R. 253
to conduct causes. By virtue of this order he becomes (1883): 28 Aib. Law J. 445; Stewart u Hall, 83 Ky.
380-81, 383 (1885), cases; Weeks, Att'ys, § 110, cases;
1 Savings Bank v. Ward, 100 U. a 199 (1879), Clif- Cooley, Const. Lim. 443.
ford, J. 'Baker v. Humphrey, 101 U. S. 501 (1879), cases,
2 [Hall V. Sawyer, 47 Barb. 119 (1866), Potter, J. Swayne, J.; Eodgers v. Marshall, 3 McCrary, 76, 82-85
8 Ingram v. Richardson, 2 La. An. 840 (1847); Clark (1881), cases.
u.- Morse, 16 La. •576 (1841); 6 La. An. 706; People v. • Re Paschal, 10 Wall. 483 (1870), cases; McPherson
May, 3 Mich. 605(1855). V. Cox, 96 U. S. 417 (1877); 2 Kent, 640. As to his lien
*iJe Paschal, 10 Wall. 493 (1870), Bradley, J. See 19 for services, see generally 18 Abb. New Cases, 23-40
Am. Law Eev. 677 (1885) — as to relation in England; (1886), cases ; as to his general or retaining lien, 20 Am.
also The Nation, No. 964, p. 503.
Law Rev. 727-40 (1886), cases; as to his speeial'lien on
" Stinsonu. Hiklrup, 8 Biss. 378 (1878), Drummond, J. judgments, ib. 821-47 (1886), cases; 21 id. 70-88 (1887),
See 8 Bl. Com. 25-29. cases ; acting for married women, 20 Cent. Law J. 365-
» Bules and Orders of the Supreme Court, 1 Cranch, 368 (1885), cases.
XV, xvii. ' Oelrichs v. Spain, 15 Wall. 231 (1873), Swayne, J.
'B. S. §747. 8iJe Paschal, 10 Wall. 491 (1870), cases.
 ATTORNEY 93
ATTOKNEY

practice is incompatible with a proper respect ot the

court for itself, and of regard for the dignity ot the
Attorney-general. 1. King's counsel.i
profession, and where reprimand, suspension, or fine
2. The head of the department of justice
will not accomplish the end. Gtenerally, opportunity in the government of the United States.
to explain his conduct will be afforded him: the pro- The chief law-officer in the government of
ceedings being quasi criminal ; but for an act done in each State.
the presence of the court no formal allegation is nec- The former has a deputy in each judicial
It is laid down in all the books that a court has district, known as the " United States district
power to exercise summary jurisdiction over its at- attorney ; " and the latter has a deputy in
torneys to compel them to act honestly toward their each county, known as the "district" or
clients, to punish them by fine and imprisonment for
" county attorney," the attoi-ney for the
misconduct and contempts, and, in cases of gross mis-
conduct, to strike their names from the roll. If reg-
people, Commonwealth, State, or govern-
ment. The attorney representing the United
ularly convicted of a felony, an attorney's name will
be struck oft the roll as of course; because he is States is also often referred to as the at-
rendered intamoiis. If convicted of a misdemeanor torney or counsel for the government. In
which imports fraud or dishonesty, the same course the capacity of accusing and trying alleged
will be taken; as also for gross malpractice or dis-
honesty in his profession, or for conduct gravely violators of the criminal law, they are sever-
Affectiag his character. Although it is not strictly ally spoken of as the "prosecuting attor-
regular not to grant a rule to show cause why he ney "2 or attorney for the prosecution.
should not be struck ofl, without an afSdavit making The attorney-general of either government may ap-
charges against him, yet, under the circumstances of pear by a special deputy attorney-general; and their
.a particular case, the want of an affidavit may not subordinates, in districts and counties, by assistant
render disbarment proceedings void as coram non district attorneys.
judice. Where an attorney commits an indictable of- The attorney-general of the United States is not
fense, not in his character of attorney, and does not authorized, by the law creating and defining his office,
admit the charge, the rule is not inflexible that the to give legal opinions at the call of Congress. His duty
court will not strike his name from the roU until he to render such opinions is limited to calls from the
has been regularly indicted and convicted: there may President and the heads ot departments,^ q. v.
be cases in which it is proper for the court to proceed He manages government suits before the Supreme
without such previous conviction, — as where an at- Court. His opinions are preserved in a series of re-
torney who had participated in " lynching " a pris- ports known as the Opinions of the Attorneys-General,
oner made an evasive denial of the charge and failed which include decisions rendered from 1791 to date.
to offer counter testimony to the evidence of his guilt, The attorney-general of a State advises the governor,
in itself clear. The proceeding is intended to protect and exhibits informations in the name of the State.
the court from the official ministration of persons unfit Attorney, letter of, or power of. The
to practice as attorneys therein. It is not a criminal instrument by which the authority of an at-
proceeding and does not therefore violate the right of
torney-in-fact iset
s forth.
trial by jury. The proceeding, furthermore, when in-
This is general, when the authority is to act
stituted in proper cases, is " due process ot law."
Special proceedings are provided for by statute in generally in the premises ; and special, when
some of the States, requiring a formal information limited to a particular act or acts. The for-
under oath to be filed, with regular proceedings and a
mer may be, in addition, limited or unlimited.
trial by a jury. In the Federal courts the circum- A power ot attorney which authorizes the agent to
stances ot each case must determine whether and
vote is called a " proxy," q. v.
when it is proper to dispense with a preliminary con- The authorization may be by parol or under seal:
viction.2 . the latter is the method when an act under seal is to
See further Admission, 2; Aobnt; Care; Cham-
perty; Communication, Privileged, 1; Compensation, be done. The expression "letter" or "power" im-
1; Compkomisb; Feb, 3; Contempt, 1; Knowledge, 1; ports a sealed instrument.
All powers are strictly construed; general terms, in
Maintenance; PETTipoGOEa; Stipulation, 2; Tbusteb;
Woman. subordination to the particular subject-matter.*
The intention of the parties, not the letter, should
control. The instrument should be construed to effect-
1 Bradley v. Fisher, 13 Wall. 354 (1871); Be Paschal, uate the object, if it can be ascertained.' See Seal, 1.
10 id. 491 (1870); Bandall v. Brigham, 7 id. 540 (1868); '3 Bl. Com. 27, 261; 4 id. 308; 1 Steph. Hist. Cr. L.
Exp. Garland, 4 id. 378 (1866); Exp. Steinman, 95 Pa.
Eng. 499. V. Hallett, 1 Col. 359 (1871).
2 People
230-39 (1880), cases, Sharswood, C. J.
2 Exp. WaU, 107 U. S. 265, 273, 280, 287 (1882), cases, sDuty of Attorney -General, 15 Op. Att.-Gen. 475
Bradley, J. ; s. c. 13 F. E. 814, 820-23, cases. See also (1878), cases; 1 Kent, 306; R. S. § 68.
People V. Appleton, 105 111. 474 (1883); Farlin v. Sook, «See Story, Agency, §§ 462, 600; 2 Kent, 643-46; 1
30 Kan. 409 (1883). See generally, Weeks, Attorneys; Pars. Contr. 94; 8 Pick. 493.
Forsyth, Hist. Lawyers. s Commonwealth i;. Hawkins, 83 Ky. 261 (1885).
 AUCTION 94 AUCTION

Attorney, warrant of. An instrument to dispose of the property to the highest bidder. The
authorizing an attorney-at-law to appear in practice originated with the Eomans, who gave it the
descriptive name of audio, an increase, because the
an action on behalf of the maker, or to con- property was sold to him who offered the most for it.
fess ajudgment against him. Military spoils were thus disposed of, the sales being
The universal rule is to permit gentlemen of tlie bar conducted sub hasta, under a spear — stuck in the
to appear in causes without first procuring a warrant
ground. (A modern popular phrase Is "under the
of attorney to appear.^ hammer.") Later came into use sale "by the can-
Frequently authorizes any attorney of a court of dle "— while a candle burned one inch; and still later
record to confess a judgment against the maker, in " Dutch auction " — an offer at a price above its value
favor of a person named. It is generally under seal; with a gradual lowering until some person purchased
and it must be for a sum certain. A common use is the article. In each method competition has been a
as a security in the hands of a creditor; it is then in
necessary element. '
some places popularly called a "judgment-note." There may be a sale to the lowest bidder, as when
May recite an accompanying bond, stating the terms land is sold for non-payment of taxes to any one who
upon which that was given; and be available only will take it for the shortest term,
upon a breach of the condition in the bond — as, upon A price may be set imder which no sale will be
a default in paying money, in which event the cred- permitted, provided public^ notice thereof be given
itor may procure a judgment at once without the beforehand.
delay of a suit, and, after that, have execution, etc. Parties may unite to purchase in good faith. =
The form in general use also provides for the payment The conditions of sale should state whether or not
of costs and an attorney's commission out of the the sale Is "without reserve " and whether a right to
maker's property; releases the right to claim advan- bid is also reserved. A material error in the descrip-
tage from errors made in the proceedings ; and waives tion of realty makes the sale voidable, g. v. A default-
stay of execution and exemption of property from
ing pm-chaser may be made to pay a deficiency on a
levy and sale. The entry of one judgment exhausts resale, subject to the former conditions." The auc-
the authority; after that the warrant is merged into tioneer may not bid for himself nor by an agent, even
the judgment — a higher species of security.^ See though he offer a fair price: the reason being, the law
Cognovit; Confession, 1, Judgment. will not permit a test to be made between interest and
AUCTION.s A public sale of property to duty. Till a sale has been made he acts for the vendor ;
the most favorable bidder. after the sale, for some purposes, as, to take the case
A sale by consecutive bidding, intended to out of the Statute of Frauds, he is agent for the buyer.*
To exempt a sale of realty from the operation of that
realize the highest price by competition for
statute he must write the buyer's name In the memo-
the article.* randum of sale.* He has a special property in goods,
When the law requires a sale of property and a lien for costs and commissions. If the vendor
is undisclosed, he is liable as vendor. He is also liable
to be made at public auction after due no- for the want of due care and skill.'
ticje, it is for the purpose of inviting compe- He has all the liabilities of an ordinary agent. If
tition among bidders, that the highest price he sells goods "as auctioneer," without naming the
may be obtained.' principal, he is liable as if selling for himself; and If
Auctioneer. A person who conducts an the title proves defective, independently of the doc-
auction. trine of Implied warranty, he may be sued by the pur-
chaser, asfor money had and received, on the ground
May refer to one who sells his own goods,
that the consideration has failed.''
as well as one who sells the goods of another, See further Bid; Commerce; Concern, For whom;
at public auction. 6 Jobber; Sale, Public; Vendue.
Every person shall be deemed to be an auctioneer
whose business it is to offer property at public sale to
the highest and best bidder — excepting judicial or ""CrandaU
burn, J. v. State, 88 Ohio St. 481-82 (1876), Ash-
executive officers., and executors, administrators, and
= See Smvdl v. Jones, 1 'W. & S. 136 (1841); Piatt v.
guardians, acting in their of&cial capacity.^ Oliver, 1 McLean, 801 (1837); Kearney v. Taylor, 15
An " auction " sale is a public competitive sale. The How. 519 (1833); Smith v. UUman, 58 Md. 189 (1883),
person who conducts it is an " auctioneer." It is part
of his engagement to invite and excite competition, and • Weast V. Derrick, 100 Pa. 509 (1882).
* Veazie u Williams, 8 How. 151-56 (1850), cases. As
1 Osborn v. United States Bant, 9 Wheat. 830 < to that statute, see 19 ■ Cent. Law J. 347-49 (1884),
= See 8 Bl. Com. 397. cases.
= L. audio, increase: augere, to Increase. = Doty V. Wilder, 15 III. 410 (1854), cases; 2 Kent, 540;
4 [Hibler v. Hoag, 1 W. & S. 653 (1841); CampbeU v. 13 Am. Deo. 398-400, cases.
Swan, 48 Barb. 113 (1865). » 3 Pars. Contr. 12.
6 Porter v. Graves, 104 U. S. 174 (1881), Miller, J. ' Seemuller v. Fuchs, 64 Md. 217 (1885), cases; Edger-
« City of Goshen v. Kern, 63 Ind. 473 (1878), Howk, 0. J. ton V. Michels, 66 Wis. 129 (1886), cases. Same cases,
' Bevenue Act, 13 July, 18(i6: 14 St. L. 119. 24 Am. Law Reg. 250, 260; ib. 263-1
 AUDIRE 95
AUDIT

AUDIEE. L. To hear. Compare Oyeb. lawful, or rejects as unlawful, the items of

Audi alteram partem. Hear the other an account or accounts.
side — the accused, the defendant. An officer of government whose duties are,
No man is to be condemned miheard.' See No- chiefly, to examine, verify, and approve or
tice, 1,Judicial. reject, the accounts of those who have dis-
Audita querela. The complaint having
been heard. bursed public moneys or furnished supplies. 1
Termed auditor-general, State auditor,
An audita querela lies where a defendant,
county auditor, >flrst auditor, etc. Corre-
against whom a judgment is recovered and sponding in duties is the comptroller (q. v.)
■ who is therefore in danger of execution, may of cities. States, and of the United States
be relieved upon good matter of discharge
which has happened since the judgment : as treasury. 2
The office of public auditor belongs to the adminis-
if the plaintiff has given him a general re- trative department of government. Even where he
lease, or if the defendant has paid the debt is empowered to act upon his official judgment his
functions are only quasi judicial.'
without procuring satisfaction to be entei-ed
on the record. In these and like cases, "To audit" an account is to hear, exam-
wherein the defendant has good matter to ine, adjust, pass upon and settle an account,
and then to aUow it.<
plead, but has had no opportunity of plead-
ing it, an audita querela lies, in the nature "To audit "is to examine and adjust an
account or accounts. An "auditor" is a
of a bill in equity, for relief against the op- person authorized to examine an account or
pression. The writ is directed to the court
accounts, compare the charges with the
below ; states that the complaint of the de-
vouchers, examine parties and witnesses, al-
fendant has been heard {audita querela de-
low or reject charges, and state a balance.'
fendentis) ; and, after setting out the matter Such is the meaning when it is directed that a board
of the complaint, directs the court to call the of supervisors shall " audit and allow " the costs and
parties before it, and, having heard their al- expenses of a hearing to remove a cotmty officer.^
legations and proofs, to cause justice to be In a statute providing that charges for making an
examination of an insurance company shall be pre-
done between them. 2 sented in an itemized bill, which shall he audited by
The writ was invented lest in any case there should
be an oppressive defect of justice, where a party who the comptroller, " audit " means hear and examine,
pass upon and adjust. In such case also the word
has a good defense can not make it in the ordinary
plainly refers to a judicial investigation and decision
forms of law. But the indulgence shown in granting
summary rehef upon motion has rendered the writ as to the merits of a claim. ^
almost useless. =^ An " auditor" is an agent or officer of the
It is a judicial writ, f oimded upon a record, and di- court vho examines and digests an account
rected to the comi; in which that record remains. It for the decision of the court. He prepares
has the usual incidents of a regular suit. It is not a the materials on which a decree may be
means for obtaining relief from negligence. The same
end is now very generally secured by a motion.^ S^e He is an officer, either at law or in equity, assigned
Motion, 2. made.'
to state the items of debt and credit between parties
AUDIT. Literally, he hears ; a hearing.
and exhibit the balance.'
See AtTDlEB. The term often designates an officer whose duties
1, V. To hear: to examine and adjust or are properly those of a master.'
certify. Originally, an auditor was an officer of the
2, n. The act or proceeding of officially king, whose duty it was, at stated periods, to
examining and allowing or certifying, or of
1 See E. S § 276.
rejecting, a charge or account.
Auditor. One who hears: one who of- = See K. S. S§ 268-73.
» State V. Brown, 10 Oreg. 223 (1883).
ficially examines and allows as proper and * Morris v. People, 3 Denio, 391 (1846); 68 Ga. 63.
1 1 Cush. 243; 46 N. T. 119; 41 N. J. E. 659; 16 C. B.416. " People ex rel. Benedict v. Supervisors, 31 N. T.
'3B1. Com. 405-6. Supr. 419 (1881), Talcott, P. J.; Laws of 1874, oh. 3S3.
sSee Avery v. United States, 13 WaU: 307(1870); 18 •Matter of Murphy, 31 N. Y. Supr. 594 (1881),
Ala. 778; 59 Cal. 139; 24 Me. 304; 20 Md. 820; 10 Mass. Learned, P. J.
' Field V. Holland, 6 Cranoh, 21 (1810), Marshall, C. J.
101; 12 id. 270; 144 id. 13; 9 Johns. 221; 17 id. 484; 21 8 Whltvvell V. Willard, 1 Mete. 218 (1840), Shaw, C. J.
Barb. 435; 34 id.42615; 2 Hill, S. C, 398;" 12 Yt. 56; 23 id. • Blain v. Patterson, 48 N. H. 153 (1868), Bellows, J.
324; 25 id. 168; id. 165; 18 Wis. 571; 15 Am. Dec. 695.
 AUDITA 06 AUTHOE

'examine the accounts of inferior officers and AULA. L. A hall, or palace.

certify to their correctness. Later, the term Aula regia or regis. The royal hall, or
designated an officer of the court of excheq- the king's hall.
uer whose duty it was to take the accounts A court established by the Conqueror, to
■of the receivers of the king's revenue and advise the king in matters of great moment.
" audit and perfect" them, without, however, It was composed of the king's great officers
putting in any charges; his office being meiely resident in his palace: the lords high con-
to audit the accounts, that is, to ascertain stable, steward, treasurer, the lord chancel-
their correctness. . . "To audit " is to ex- lor, and others. These were assisted by
amine, settle and adjust accounts — to verify persons learned in the laws — the king's jus-
the accuracy of the statements or items ticiars or justices, and by the greater barons
submitted. 1 of parliament. Over all whom presided the
Where the items are numerous, the testimony ques- chief justiciar.
tionable, and the accounts complicated, a court may Here will be noted the change in the meaning of the
make a general reference, with direction to state spe- word "court" from royal household to tribunal of
•ciflcally such matters as either party may require or
as the auditor may deem necessary.^ See at end of justice.
The court followed the king's household in all his
Account, 1. expeditions. That being burdensome to litigants it
Auditors are called in by the courts to hear matters was ordained by Magna Charta that the court should
•ot detail which a court has not time to hear, and to in- be held in some certain place — Westminster Hall.
form, the conscience of the com't as to facts which are In the reign of Edward I the court was subdivided
essential to be known before a particular decree or
into four distinct tribunals: chancery, king's bench,
judgment pan be pronounced.^ exchequer, and common pleas — the last being in a
They are appointed to audit the accounts of as" special sense the successor of the original aula regis.^
signees in insolvency, of trustees to sell realty, of See Chancellor, 1.
•executors, of administrators, of guardians, — when AUNT. See Ancestor; Consanguinitt.
excepted to, or where distribution is to be made of a AUTER. See Atjtke.
balance among rival claimants; also, to report upon
.the expediency of selling or mortgaging the realty of AUTHENTIC.2 In legal parlance, duly
decedents; as to incumbrances affecting the interests vested with all formalities and legally at-
of partitioners; sometimes, to report the facts, where
.a petition has been taken pi^o confesso but an account tested.'
Authentication. Official, legal attesta-
showing a balance against the respondent is essential;
jto examine the accounts of public officers; also, as to tion to a thing done ; as, of a copy made of
the satisfaction of judgments, as to the distribution of an act of legislation, or of the record in a
the proceeds of forfeited recognizances, of the pro- court or other public office.
ceeds of sales, etc. Or, a court may itself sit as a There does not appear to be any necessary or in-
** court of audit," as, an orphans' or surrogate's court, herent meaning in the word "authenticated" as used
in which at regular intervals large numbers of ac- in the act of June 19, 1876, amending Eev. St., § 5271,
counts are presented for approval. which relates to extraditions and requires the authen-
Where the claimants to a fund are numerous the tication tobe in writing. Authentication in regard to
auditor is required to give public notice of the time
<^riginal papers may be made by oral proof. A wit-
and place of holding hearings. His specific duties ness may swear to the verity and identity of the origi-
may be defined in the order of his appointment; but nal, and that it would be received in the tribunals of
statutes .provide for his issuing subpoenas, for admin- the foreign country as evidence of the criminality of
istering oaths and affirmations, and for prociu*ing the the accused. But when copies are offered they must
attachment of contumacious witnesses. He reports be authenticated according to the law of the foreign
the facts, not the testimony, and a schedule by which country— for which the certificate of the principal
,the fimd may be distributed according to law. His officer of the United States is absolute proof.* See
iruHngs and recommendations are reviewable by the Faith, Full, etc. ; Law, Foreign.
• court upon exception filed by any aggrieved party. AUTHOR.5 Within the meaning of the
He is called upon to admit or reject items of costs,
copyright law one who, by his own intellect-
' wages, rents, commissions, secured and unsecured
■Claims, etc. In every case the sta.tutes, decisions, ual labor applied to the materials of his com-
rules and practice of th« particular jurisdiction should 1 3 Bl. Com. 37-M; 3 Steph. Com. 397-400.
be consulted. Compare Master, 4. = L. authenticus, written with one's own hand-
AUDITA. See Audire, Audita, etc original.
s [Downing v. Brown, 3 Col. 590 (1877): Webster
' People V. Green, 5 Daly, 200 (1874), Daly, C. J. See *Re Fowler, 1.8 Blatch. 436 (1880), Blatoh
ford, J ;
-4 CJoke, Inst. 107.
s. o. 4 F. E. 811. See I Greenl. Ev. § 484^ i Wliart'
2 Keld V. Holland, supra.
» L. auctor, an originator: augere, to increase
'. ■
-s Miller's Appeal, 30 Pa. 490 (1858), Woodward, J. Ev. § 7 00.
 AUTHORITY 97 AVERAGE

position, produces an arrangeinent or compi- A government contract to be " authorized by law "
must be made in pursuance of express authority
lation new in itself.'
given by statute or of authority necessarily inferable
See generally Copyright; History; Letter, 3; Lit- from some duty imposed upon, or from some power
erary; Manhsoript; Photograph; Review, 8; Science.
given to, the person assuming the contract.'
AUTHORITY. 1. Power — delegated to AUTRE. F. Another. Also spelled aiifer.
an agent or exercised by virtue of an office,
Autre action pendant. Another action
trust, or privilege.
pending. See Pend.
Executive authority. Power vested in
the President of the United States, or in the Autre
ther Droit.droit. Another's right. See fur-
governor of a State; also, either of those
Autre vie. Another's life. See Vie.
officials himself considered in his political
merly.
AUTREFOIS. F. Another time; for-
capacity, as opposed to the judicial and leg-
islative branches of government. ^ Judicial Autrefois acquit. Formerly acquitted.
authority. Official power in a court or Autrefois convict. Formerly convicted.
judge. Legislative authority. Power Pleas in bar of a second indictment for an
conferred upon a legislative body. offense of which the accused has already
Express authority. Power stated in been acquitted or convicted. See further
terms more or less explicit. Implied au- Acquittal; Conviction, Former.
thority. Such authority as is or is to be in- AUXILIARY. See Ancillary ; Equity.
ferred from circumstances.
AVAIL.2 To be of use or advantage ; to
General authority. Power extending
answer the purpose ; to have strength, force,
to all acts of a certain nature. Special
or efficacy sufficient to the end:' as, in
authority. Authority confined to a single
act or transaction. saying that a defense, a plea, or evidence
will or will not avail the party.
Iiimited authority. Power restricted Available. Suitable to the purpose : as,
by instructions more or less precise. Unlim- an available defense or plea ; also, admitting
ited authority. Authority not defined by
of early conversion into ready money.
words or instructions. " Available means " are anything which can readily
Kaked authority. Power exercised by be converted into money; all that class of securities
known in the mercantile world as representatives of
an agent solely for the benefit of the princi-
value easily convertible into money; not necessarily,
pal. Authority coupled with an in-
terest. Power given for value to the agent, nor primarily, money itself.*
or as part of a security. Avails. Profits, proceeds, funds.5
AVER. See Averment.
See further Agent; Delegatus; Interest, 2; Coup-
AVERAGE.6 Proportional payment:
led, etc.; Partner; also. Apparent; Corporate; Law-
ful; Power, 1; Ratification. contribution to a loss or expense incurred at
3. The binding . force of a constitution, sea for the general benefit of several persons
treaty, statute, or ordinance. or several interests.
Constituted authorities. Officers of In its simple generic sense a loss, injury,
government appointed under a constitution. or deduction not amounting to a total loss.'
Constituting authorities. The persons General or gross average. That con-
who appoint the former as their servants or tribution to a loss or expense voluntarily in-
agents. curred for the preservation of the whole, in
3. Whatever Is relied upon as declaring
the law : (1) a constitution, treaty, statute, 1 Fifteen Per Cent. Contracts, 15 Op. A.-G. 236 (1877).
> F. avaloir, to be of use: L. valere, to be strong.
adjudication ; (2) a text-book or treatise ex- ' [Webster's Diet.
planatory of organic, statute, or case law. < Brigham v. Tillinghast, 13 N. Y. 218-19 (1855).
Compare Opinion, 3 ; Precedent. « See 100 Mass. 233; 12 F. E. 371 ; 2 Bl. Com. 60.
AUTHORIZE. To confer power upon ; «L. averagium: averia, cattle. Service u tenant
to invest with lawful authority, q. v. owes his lord by horse, ox, or carriage therewith,—
Blount's Law Diet. (1691). It meant use of horses, car-
1 [Atwill V. Ferrett, 2 Blatoh. 46 (1840), Betts, J. See riage, payment for carriage; hence, payment propor-
also 2 Kent, 3T3-74, 383; E. S. § 4953, cases. tional — to horses employed, goods lost at sea, etc.,—
a See Commonwealtli v. Hall, 9 Gray, 367-68 (1857), Skeat.
Bigelow, C. J. ' [Bargett v. Orient Ins. Co., 3 Bosw. 395 (1858).
 AVERMENT 98 AVOW

which all who are concerned in the ship, An averment in a declaration is a direct
freight, and cargo are to bear an equal part and positive allegation of fact, made in a
proportionable to their respective interests.^ inanner capable of being traversed. It in-
Particular average. The damage or loss, cludes the idea of an affirmation to be made
short of total, falling directly upon particular out by inference and induction, l
articles of property, i " The use in pleading of an averment is to ascertain
The liability or claim upon Buch articles from loss that to the coiut which is generally or doubtfully ex-
or damage to something else is "general" average.^ pressed; so that the court may not be perplexed of
The rule as to general average is derived from the whom, or of what, it ought to be understood; and
Bhodian law as adopted in the Roman jurisprudence. to add matter to the plea to make doubtful things
The Digest states the rule thus: If goods are thrown clear " — as, an averment in an action of slander."
overboard to lighten a ship, the loss incurred for the There is no particular form of words in use. The
sake of all shall be made good by the contribution of important matter is that each substantial fact be so
all. The case of jettison was used to illustrate the averred as to be susceptible of a simple admission or
general principle. Now, as then, ship and cargo must denial. See Vertfy.
have been placed in a common imminent peril; there AVOCATIOW. See Business; Employ-
must have been a voluntary sacrifice of property to ment; Trade.
avert that peril; and, by the sacrifice, the safety of the
AVOID.' 1. To cause to be or become
other property must have been successfully attained.'
The principle is that " what is given for the general
empty: to render useless or void; to make
benefit of all shall be made good by the contribution inoperative or of no effect; to nullify. Op-
of all." Greneral average is that contribution which is posed, affirm, confirm.
made by all who are parties to the same adventure Avoidance. Setting aside; nullifying;
toward a loss arising out of extraordinary sacrifices
made, or extraordinary expenses incurred, by some of rendering of no effect.* Compare Void.
them for the common benefit of ship and cargo. The Some authorities assert that an infant's deed cannot
loss must be of an extraordinary nature, advisedly in- be avoided except by an act equally solemn with
curred, under circumstances of imminent danger, for the deed itself; some that it cannot be done by any-
the common benefit of ship and cargo: and it must thing short of an entry; others that it maybe done
simply by another deed delivered to a difEerent
have aided in the accompUshment of'that purpose.* grantee. All agree, however, that acts which would
' Where the interests are temporarily separated, as
by unloading the cargo to repair the vessel, and the be insxifficient to avoid such a deed may amount tO'
expectation of resuming the voyage, from unforeseen an affirmance,^ q. v.
circumstances, is not realized, as, for example, inabil- 3. In pleading, to repel the consequence or
ity to make the vessel seaworthy, all the expense of inference which would logically follow a
protecting the difEerent interests meanwhilels charge- failure to deny the truth of an averment.
able to general average. <■
Passengers' baggage in daily use does not contribute More fully, to "confess and avoid."
to general average. •
Matter of avoidance. New matter
AVERMENT.' A positive statement of which adniits the declaration to be true, but
the truth of a fact; a formal allegation in shows, either that the defendant was never
pleading. liable to the recovery claimed against him or
Aver. To assert for the truth ; to state in that he has never been discharged from his
■ positive terms ; to allege formally. original hability by something supervenient, s
See further Confession, 1.
Averments are spoken of as "affirmative"
AVOIKDUPOIS. See Ton.
and "negative,'' as "general" and "particu-
lar" or "specific," as "material" and "im- AVOW.' 1. To declare openly: to ac-
knowledge and justify an act; opposed to
material," as " unnecessary," "impertinent,"
etc., with substantially the same meaning as disavow.
2. To make an avowry.
are "allegations." See Allegation.
Avowant. He who makes an avowry.
' Padelford v. Boardman, 4 Mass. 549 (1808). Avowry. Upon an action of replevin be-
» Bargett v. Orient Ins. Co., ante. ing brought and a declaration delivered, the
s Columbian Ins. Co. o. Ashby, 13 Pet. 337-38 (1839),
Stoiy, J. 1 Laughlin v. Flood, 3 Munf. 262 (1811).
< McAndrews u Tliatcher, 3 Wall. 370, 376 (1865), Clif- ' Van Vechten v. Hopkins, 5 Johns. 219 (1809).
ford, J. See also 3 Kent, 235. » M. Eng. avoiden, to make empty, put out of the way.
» The Joseph Farwell, 31 F. K. 841 (1887), Toulmin, J. « See 2 Bl. Com. 308.
= Heye v. North German Lloyd, 33 F. E. 65 (1887), 'Irvine v. Irvine, 9 Wall. 627-28 (1869), Strong, J.
cases, Brown, J. • Gould, Plead. 84, 13; 31 Conn. 177.
' F. averer, to affirm as true : L. ad, to ; verum, truth. ' L. ad-vovere, to vow to: ad-voca(re.
 99
AVULSION BAD

distrainor, as defendant, makes "avowry," Before a court of review every presumption will be
that is, he avows taking the distress in his made in favor of the validity of an award, unless fla-
grant error appears upon the face of the record itself.'
own right or in the right of his wife, and sets See further Abide; Aebitkation.
forth the reason for it, as for rent-arrear, AWAY. See Absent ; Caeet, 1.
damage done, or other cause.i Away-going. See Ceop.
If he justifies in another's right as his bailiff or
servant, he is said to males " cognizance." ' See
B.
Cognizance, 1.
AVULSION.s Alluvion or dereliction
of land which is sudden and considerable.
B. Referring to a page or note, see A, 1.
As, where the course of a river is changed by a In colonial times was imprinted with indelible ink
violent flood and thereby a man loses his ground; in
which case he has, as his recompense,_what the river upon the cheek of a person convicted of burglary.*
has left in another place.* See further Alluvion. As an abbreviation, usually denotes bach-
AWABD.i 1, V. (1) To allow by judicial elor, bail, bankruptcy, baron, bench, bill,
determination: as, for a court to award a bond, book:
writ of habeas corpus or other process. B. B. Bail bond. See C. 0. etB. B.
(3) To adjudge as due; to allow; to find: B. C. Bail court ; bankruptcy cases.
as, for a jury or viewers to award damages, B. E. Baron of the court of exchequer.
for arbitrators to award a claim. See Baron, 3.
2, n. The decision of a board of arbitrators ; B. P. Bonum factum, a proper thing.
Formerly was indorsed upon the paper containing
the finding of a referee; also, the writing
which embodies such determination. a decree, signifying that it was " approved."
B. R. Bancus regis, king's bench ; bank-
An award is the judgment of the arbitra- ruptcy reports ; Bill of Rights.
tor upon the matters submitted.' B. S. Bancus superior, upper bench.
M"o award. A plea to an action on an ar- BABY ACT. A term of reproach origi-
bitration bond, that no legal award was made.
nally applied to the disability of infancy
A valid award is equivalent to a judgment on a ver-
dict. Feudal law did not permit a right in realty to when pleaded by an adult in bar of recovery
pass by a mere award — lest an alienation should be upon a contract made while he was under
made coUusively without the consent of the superior. age, but extended to any plea of the statute
. . A party who disobeys an award is punishable as of limita.tions.
for contempt of court, unless the award be set aside BACHELOB OP LAWS. See Degeee.
for corruption or other misbehavior in the arbitrators. "
An award is an act of the parties performed through BACK. To indorse, sign: as, to back a
their agents, and assented to in advance.' process or writ.
It can be impeached only for corruption, partiality, The warrant of a justice of the peace in one county
or gross misbehavior in the arbitrators, or for some must be backed, that is, signed, by a justice in another
palpable mistake as to the law or the facts. If so county, before it can be executed there. This practice
uncertain that it cannot be enforced, it is void.^ prevailed for a long period prior to authorization by
At common law it must be not only certain but
final, disposing wholly of the controversy which prop- Under extradition treaties, an officer of govern-
statute.'
erly forms the subject of the reference; otherwise it ment, usually the secretary of state, may indorse or
cannot be enforced." back a. warrant of JEirrest.
BACK-GAMMON. See Game, 3,
' 3 Bl. Com. 150; 21 N. J. L. 49. BACK-WATER. See Mill, 1 ; Take, 8.
^ L. avulsio: avellere, to tear away.
" 2 Bl. Com. 262; 3 Washb. E. P. 452. BAD. 1. When applied to "character,"
*Mid. Eng. awarden: F. eswardier, to examine, the jury must say whether want of chastity
judge: warder, to take heed, keep. A thing for the or of honesty was imputed.*
parties to observe, — Skeat; Spel. Gloss. The charge of incontinency involved in the words
s Halnon v. Halnon, 55 Vt. 322 (1883), Royce, C. J. " she is a bad, a loose, character," may be sufficiently
• 3 Bl. Com. 16-18. averred by an innuendo without a colloquium. Such
' Babb V. Stromberg, 14 Pa. 399 (1850), Gibson, 0. J. words of themselves impute incontinency. Whether
» Herrick v. Blair, 1 Johns. Ch. 101 (1814), Kent, J.; 2
id. 551; Fairchild v. Adams, 11 Cush. 550 (1863); Per- 1 Wilcox V. Payne, 88 Pa. 157 (1878).
kins V. Giles, 53 Barb. 346 (1869); Eussell v. Smith, 87 ' Jones u Bobbins, 8 Gray, 348 (1857), Shaw, C. J.
Ind. 466, 468 (1882). » 4 Bl. Com. 291.
' Connor v. Simpson, 104 Pa. 443 (1883); Morse, Arb., <Eiddell v. Thayer, 127 Mass. 490 (1879); Kedroli-
&c. 486. vansky v. Niebaum, 70 Cal. 218-19 (1886), cases.
 BADGE 100 BAGGAGE

or not the charge is true the jury must decide,' See BAGATELLE. See Game, 2.
Character; Slander.
BAGGAGE. 1. Whatever a passenger
3. In pleading — materially defective ; ill ;
takes with him for his personal use or con-
not good: as, a bad plea, bad pleading, a
venience, according to the habits or wants of
bad count. Compare III, 2 : Well, 2.
When evidence has not been given on a bad count, the particular class to which he belongs,
a general verdict will be entered on such of the good either with reference to the immediate neces-
counts as are supported by proof." See Usus, Utile sities or to the ultimate purpose of the jour-
per inutile, etc,
3. False, faulty: as, bad grammar, q. v. A contract to carry a person implies an un-
ney.!
Bad faith. See Faith. Compare-MALUS. dertaking to transport such a limited quan-
BADGE. 1. A mark or device worn by tity of articles as are ordinarily taken by
an officer of the peace for purposes of iden- travelers for their personal use and conven-
tification and perhaps of notification. ience, the quantity depending upon the sta-
On demand, is ordinarily to be shown as evidence tion of the party, the object and length of
of authority to make an arrest.
2. Evidence of chai-acter. the journey, and other circumstances.^
To the extent that the articles carried by a, passen-
A badge of "fraud is a fact tending to throw suspi- ger for his personal use exceed in quantity and value
cion upon a transaction, and calling for explanation; ^ such as are usually carried by passengers of like star
as, possession of personalty by the alleged vendor.* tion, pursuing like joimieys, they are not baggage for
See Possession, Fraudulent.
which the carrier, by general law, is responsible as in-
" The provisions in the deed of assignment are at surer. In cases of abuse by the passenger of the priv-
most but badges of fraud, susceptible of explanation,
^ilege which the law gives him, the carrier secures such
like all indicia, and may or may not be evidence of exemption from responsibility, not, however, because
fraudulent intent." ° the passenger, uninquired of, failed to disclose the
BADGrEB. To pester or worry; as, to character and value of the articles carried, but be-
badger a witness.^ Compare Browbeat. cause the articles themselves, in excess of the amount
Originally, to follow up or pursue with eagerness, usually or ordinarily carried, under lil?e circum-
as the badger is hunted. See Examination, 9. stances, would not constitute baggage within the
BAG. The sack, satchel, reticule or other meaning of the law.
like receptacle in which lawyers carry briefs In the case (Fraloff's, infra) in which the doctrine
foregoing was enunciated, 275 yards of laces, alleged
and papers for use during the preparation, to be of the value of S75,O0O, and f oimd by a jury to be
trial, hearing, or argument of cases, was worth $10,000, were held to constitute part of the wear-
formerly called, from the prevailing color of ing apparel of the defendant in error — a wealthy Rus-
sian. They were adapted to and exclusively designed
the material, the "green bag." for personal use, according to her convenience, com-
In the theatrical performances of Queen Caroline's fort, or tastes, during an extended journey, upon
time the lawyer is represented with a green bag in his
which she had entered. They were not merchandise,
hand; and such is the reference in the literature of
and there was no evidence that they were intended for
Queen Anne's time; and, until a recent date, green sale or for purposes of business. It was further de-
bags were commonly carried by the majority of legal
cided that whether the laces were such articles iij
practitioners. The king's counselors, queen's coun- quantity or value as passengers of like station and
selors, the chancery lawyers, and the leaders of the
under like circumstances ordinarily carry for their
common bar, were honored with the privilege of car-
rying red, purple, or blue bags. Indeed, the green personal use, and to subserve their convenience, grati-
bag was so uniformly associated with the profession fication, or comfort while traveling, was not a ques-
tion for the jury, under instruction from the court,
in the reign of Anne that " to say that a man intended but for the court itself as a matter of law.^
to carry a green bag was the same as saying that he
The liability of the carrier attaches when the prop-
meant to adopt the law as a profession." ' erty, as baggage, passes into his hands with his con-
In the time of Charles II angry clients were ac-
customed torevile lawyers as " green-bag carriers." ^ 1 Macrow v. Great Western Ey. Co., L. R., 6 Q. B.
As to petty bag oflce, see Hanaper; Petit. *622 (1871), Cockbum, C. J. See also Jordan ■„. Rail-
way Co., 5 Gush. 72 (1849); Connolly v. Warren, 10«
> Tanderlip v. Eoe, 23 Pa. 84 (1854). Mass. 148 (1870); 6 Hill, 686.
= Haldeman v. Martin, 10 Pa. 378 C1849); Chaffey v. " Hannibal, &o. E. Co. v. Swift, 12 Wall. 274, 273 (1870),
United States, 116 U. S. 443 (1886); ib. 427. Field, J.
8 Bump, Fraud. Convey. 31. ' TH.Y. Central, &c. R. Co. v. Fi-alofE, 100 U. S. 29-30
4 101 U. S. 229; 1 Pars. Contr. 589. (1879), Harlan, J. ; Waite, C. J., Clifford, Hunt, Swayne,
5 Burr V. Clement, 9 Col. 11 (1885). and Bradley, JJ., concurring; Field, Miller, and Strong,
« [Webster's Diet. .TJ., dissenting. See also Haines v. Chicago, &c. E.
!■ 5 Alb. Law J. 225 (1872). Co , 29 Minn. 161 (1882); Isaacson v. N. Y. Central, &c.
' Wycherly, Plain Dealer. R. Co., 94 N. Y. 283 (1884).
 BAII, 101
BAIL

sent. He may refuse to receive property not properly himself as principal) sufficient security for
baggage, but it he receives it knowingly, and no decep-
tion has been practiced upon him, he must carry it his appearance; he being supposed to con-
tinue in their friendly custody, instead of
safely.'
The fare paid by a passenger includes the trans- going to jail.iundertake to surrender the defendant
The sureties
portation ofhis baggage. The carrier has a lien there-
for, and may detain the baggage until payment is when he is called upon to answer the charge.''
made.^ Bailable. Admitting of bail ; allowing or
The term has been held to include — a watch,^ jew- providing for release upon bail: as, a bail-
elry,* an opera glass,^ surgical instruments,* a gun, a able— offense, action, process.
pistol,' a mechanic's tools,* manuscript,' books; '» but
not, samples of merchandise," except when the car- Bail-bond. The obligation entered into
rier, being made aware of the contents of packages, by the surety.
takes them as baggage; ^^ nor gold ornaments for Takes the place of the body of the defendant, and
presents;'^ nor money, except as to such limited is forfeited by his non-appearance according to the
amount as may be necessary for personal use.'* stipulation. It is not receivable utider final process.
The possession of a baggage check by a passenger The sheriff, constable, or marshal, as the case may be,
is eridence of the receipt of his baggage." is the obligee; in which respect the obligation differs
Baggage is to be removed within a reasonable time from a recognizance, g. v. The plaintiff sues on the
after arrival, else the carrier may store the articles, instrument as assignee of the officer to whom it was
charge reasonable rates for such service, and, in case originally given, and, perhaps, by a writ of scire
of theft, loss, or destruction, be liable only as a ware- facias.^ See C. C. et B, B.
houseman,'* q.V. See also Carrier. Bail-piece. A certificate from the record
3. As to the baggage of guests in hotels, in a case that one or more persons named be-
see Innkeeper. came bail in a certain sum of money.
TtATT.17 1, V. To deliver personalty to Not in the nature of process; merely a record or
another as a bailment, q. v. memorial of the delivery of the principal to his bail,
3, V. To deliver a defendant to sureties oa security given.*
Originally written on a small piece of parchment.*
who give security for his appearance in court A surety may use this certificate as a warrant of
at the return of the writ.l^ arrest, and, by virtue thereof, deliver the principal
n. One or more of such sureties themselves. over to an oflfioer for confinement. See Onus, Ex-
A delivery or bailment of a person to his oneretur.
sureties, upon their giving (together vrith Following are the common species of bail :
» Hannibal, &c. E. Co. v. Swift, ante; Strouse v.
Bail above, or bail to the action. Sure-
ties who jointly and severally undertake that
Wabash, &c. E. Co., 17 F. E. 209 (1S&3). Left with rail-
way porter. Bunch v. Great Western Ey. Co., L. E. 17 if their principal, the defendant in an action,
Q. B. D. 21.-J (1886): 3 Law Quart. Eev. 469-79 (1886), is "condemned," he will either pay the judg-
cases. See generally 18 Cent. Law J. 421-24 (1884), ment or give himself up for imprisonment,
cases.
or else that they will satisfy the judgment.
2 Eoberts v. Koehler, 30 F. E. 96 (1887), cases. Cases
contra, 26 Am. Law Eeg. 396-98 (1887). Bail below, or appearance bail. Sureties
•Jones V. Vdcrbees, 10 Ohio, 145 (1840); Clark v. who stipulate that a defendant will appear in
Burns, 118 Mass. 277 (1873), cases.
* McGill V. Bowan, 3 Pa. 463 (1816).
court on the day named in the writ.^
Bail absolute. A person or persons who
* Toledo, &c. E. Co. v. Hammond, -33 Ind. 379 (1870).
•Hannibal, &c. E. Co. u. Swift, 12 Wall. 370 (1870).
obligate tliemselves, usually to the State or
' Chicago, &o. E. Co. v. Collins, 56 111. 217 (1870).
Commonwealth, to pay a specified sum of
8 Porter v. Hildebrand, 13 Pa. 133 (1830). money, in the event of another person (the
' Hopkins v. Westcott, 6 Blatch. 69 (1868).
10 Doyle v. Kiser, 6 Ind. 248 (1856).
principal) failing to account, in due form of
1 1 Stimson v. Conn. Eiv. E. Co. , 98 Mass. 84 (1867), cases. law, for money entrusted to him as adminis-
" Hoeger v. Chicago, &o. E. Co., 63 Wis. 100 (1886). trator, guardian, assignee, or other trustee.
"The Ionic, B Blatch. .')38(1H07); 4 Bosw. 225. Common or straw bail. One or more
i«Pfisteru. Central Pacific E. Co., 70 Cal. 173 (1886) fictitious sureties whose names are entered
31 Conn. 381 ; 25 Ga. 61; 22 111. 278; 33 jd. 219; 56 id. 293 as bail for matter of form, and who stipulate
5 Cush. 69; 98 Mass. 875; 41 Miss. 671; 44 N. H. 325
9 Wend. 85; 26, id. 469; 6 Hill, 686; 30 N. Y. 594; 16Pa. 67. 1 4 Bl. Com. 297; 30 N. H. 161.
" 6 Col. 337; Eedf. Car. 71, 73. 2 Eamey u. Commonwealth, 83 Ky. 633 (1886).
* See 3 Bl. Com. 290.
" See generally McCaffrey v. Canadian Pacific E. Co.,
24 Am. Law Eeg: 175-90 (1885), cases. * NicoUs V. Ingersoll, 7 Johns. *154 (1810).
1' F. bailler, to deliver, free from. * 3 Bl. Com. 291.
18 [3 Bl. Com. 390. « [3 Bl. Com. 291.
 BAIL 103
BAILMENT

that a defendant will appear. Special bail. BAILEE. See Bailment.

Eeal, substantial bondsmen, B AILIFr. 1 Originally, one put in charge
" Common " or " straw " bail are universal sure- of something.
ties — John Doe and Eichard Eoe, or other imaginary
persons returned by the sheriff — standing pledges, for An officer concerned in the administration
the purpose intended. They originally answered for of justice in a certain province.^
the plaintiff in case he was amerced (g. v.) for making 1. A servant, in a superior, ministerial
a false acbusationli See further Doe; Straw.
*' Special " bail may be required, by order of court capacity.'
In such cases as are particularly grievous, or when it
A private person who has the custody and
is necessary that a defendant should be kept within care of another's property.
the jurisdiction. Originally introduced to mitigate He is liable to an action of account-render.*
the hardships incident to imprisonment." 2. An attendant who preserves order in
and about the room where court is being
" All persons shall be Bailable by sufSeient Sureties,
unless for Capital Offenses, where the proof is evidept held ; a tipstaff, q. v.
or the presumption great." This provision, quoted 3. A sheriflE's officer or deputy.
from the Great Law ' of the Province of Pennsylvania, Also called a bound or special bailiff.
enacted in 1682, is also found in the constitutions of The due execution of his duties is secured by an
all the States. See Evident.
obligation with sureties."
Bail is taken by committing magistrates, by judges BAILIWlCK.6 A word, introduced by
and commissioners of the courts, by clerks of some
courts, and by other persons, as provided by statutes; the Normans, and equivalent to "county."
but not, generally speaking, by justices of the peace The liberty, province, or jurisdiction of a
on charges of homicide and certain other of the more sheriff.' Compare Precinct.
heinous felonies, nor in charges of contempt of a court BAILMENT.^ A delivery of goods in
or of contempt of a legislature by a member thereof.* trust, upon a contract, expressed or implied,
"Excessive baU shall not be required." ^ What is that the trust shall be faithfully executed on
" excessive " is for the court alone to determine. See
Excessive. the part of the bailee.'
Bail is not required of a municipal corporation; nor, A delivery of goods in trust upon a con-
as a rule,of persons in a fiduciary relation, sued as such. tract, expressed or implied, that the trust
A surety must generally be a freeholder to some
shall be duly executed, and the goods re-
amount,,subject to process, and able to make a con-
tract and to pay the amount of the bond. Ordinarily, stored bythe bailee as soon as the purpose of
common bail suffices from a defendant who is a free- the bailment shall be answered.'"
holder. Anon-resident plaintiff may have to furnish A delivery of a thing in trust for some
bail for the probable costs in his action.
special object or purpose, and upon a con-
The principal is regarded as delivered'to his sureties tract, expressed or implied, to conform to the
as jailers of his own choosing. Their dominion is a
continuance of the original imprisonment. Whenever object or purpose of the trust.^l
they choose they may seize and deliver him up, in When the identical thing delivered, though in an
their own discharge; and, until this can be effected, altered form, is to be restored, the contract is a " bail-
they may imprison him. In this action they may be ment," and the title to the property is not changed.
represented by an agent. They may pursue him into But when there is no obligation to restore the specific
another State; they may arrest him on the Sabbath; article, and the receiver is at liberty to return another
and, if necessary, they may break and enter his house
to arrest him. Being like a re-arrest by a sheriff of Reese v. United States, 9 id. 21 (1869), Field, J.; 3 Bl.
an escaping prisoner, they need no process. Their' Com. 290-92. As to rights of sureties generally, see
rights are alike in civil and criminal cases. 1 Ifans. Law J. 211-14 (188.5), oases.
With the sureties there is an implied engagement 1 The -iff is from the A. S. reeve, officer, steward,—
by the principal that he will not leave the jurisdiction ; 1 Bl. Com. 116. O. F. bailler, to keep in custody, —
and by the plaintiff, that he will do nothing to increase Skeat. See Bail, 2; Eeeve.
their risk or to affect their remedy." See Jump. = Coke, Litt. 163 b.
See also Bind; Commissioner; Deposit, In lieu, etc.; ' 1 Bl. Com. 427.
Fidejussor; Justification, 2; Mainpbrnob; Penaltt; •■ See Coke, Litt. 172 a; 4 Watts, 432; 22 Ga. 161; 44
Perfect; Surety. Barb. 463; 1 Story, Eq. § 446.
s 1 Bl. Com. 345.
1 [3 Bl. Com. 274, 287, 290, 291, 295.] "F. fioSitc, government; bat'lJer, to have custody of ;
= See 3 Bl. Com. 292, 287. A. S. wic, dwelling, station, jurisdiction.
s Chapter LII: Linn, 120. See Wash. Law Eev., ' 1 Bl. Com, 344; 2 id. 37.
Oct. 26, Nov. 1, 15, 1882. 8 P. bailler, to deliver.
< See generally 20 Cent. Law J. 464-66 (1885), cases. » 2 Bl. Com. 451, 395.
i» 2 Kent, 559.
» Constitution, Amd. Art. Vm. 4 Bl. Com. 296-99.
« See Taylor v. Taintor, 16 Wall. 371 (1872), Swayne, J. ; " Story, Bailm. § 2; Watson v. State, 70 Ala. 14 (1881).
 103
BAIT BALLOT

thing of equal value, the title to the property being Pursuing rabbits with dogs is not baiting them. The
changed, the contract is a "sale," ' q. v. term applies where the baited animal is tied to a stake
Bail, V. To deliver a thing to a person or confined so that it cannot escape. '
upon his engaging to do something to or with BALANCE.2 1. Excess on one side of an
account.
it, and then either to return or to account
for it. The conclusion or result of the debit and
Bailee. He who thus recelYes a thing credit sides of an account. 3
bailed. Bailor. He who thus delivers a Implies mutual dealings, and the extension of debit
thing as bailed. and credit.'
The purpose of the law of bailments is to ascertain, 3. Residue or remainder; as, the balance
whenever the loss of or injury to a thing occurs, to of an estate. 4
what degree of care the bailee was bound and of what General balance. Such sum of money
degree of negligence he has been guilty. ^ as is due for services rendered by a person to
Three kinds of bailments are recognized: That in
whom two or more articles have been bailed
which the trust is for the benefit — of the bailor, of the
bailee, or of both bailor and bailee. In cases of the for purposes of transportation, for the be-
first kind, at least slight care is required; in cases of stowal of work and labor, or on account of
the second kind, great care; in cases of the third kind, which money has been expended. See LlEiN,
ordinary care. The absence of the required degree of Particular.
care constitutes negligence, for which the bailee is
responsible.' Net balance. Applied to the proceeds of
Sir William Jones, following the civil law, proposed, a sale of stock, means, in commercial usage,
in 1790, this division; Depositum, gratuitous custody; the balance of the proceeds after deducting
deposit, q. v. Mandaium^ gratuitous feasance; man-
the expenses incident to the sale.s
date, q. V. Accommodatum (q. v.), or cammodatum, In some States a balance found to be due from an
loan for use without pay; accommodation. Fignus^ executor, administrator, or guardian, may be entered
pledge, q. v. Locatio^ or locatum, hiring,* q. v. See of record as a judgment.
also Loan, 1.
In suits arising out of mutual accounts the jiuy
Each party has a qualified property (g. v.) in the may find a balance due to the defendant which, by
subject of the bailment and may maintain an action certificate of the court, becomes a judgment against
with respect to it.**
Presumably, the bailor is entitled to the thing. The the plaintiff.
Partial balance. A balance found upon
bailee is to do what the principal directed — restore
the article or account to him for it. He " accounts " a partial settlement of accounts, as between
when he yields to the paramount right of immediate partners. Pinal balance. The balance at
possession in a third person who Is found to be the final settlement of a portion of the items of an
true owner."
See also Care; Carried; Innkeeper; Larceny; account, or of all the items, and for a lim-
Ees, Pent, etc. ited period of time or for the whole period
BAIT. 1. To feed : to allure a dumb ani- covered by dealings or transactions.
An express promise by a partner to pay a partial
mal, by scented food, frona the premises of
balance is the most satisfactory evidence of an in-
its owner or from the highway.
tention to separate the items included in the settle-
The owner of an animal injured in this way may ment from the rest of the joint affairs.
maintain an action upon the case for damages. To constitute such an agreed final balance as will
3. To attack with violence ; to harass : as,
support an action by one partner against his copart-
to bait a bull with dogs.' ner, the balance must have received the assent of
1 Mallory v. Willis, 4 N. Y. &5 (1850), cases, Bronson, both partners, binding them to an admission of its
C. J. ; Foster D. Pettibone, 7 id. 433 (1853), Ruggles, C. J. ; correctness.' See Account, 1.
Hyde v. Cookson, 81 Barb. 103 (1855); Marsh d. Titus, BALLET. See Theater.
3 Hun, 550 (1875); Story, BaUm § 283; 3 Kent, 589. BALLOT.' n. A ball or a ticket used in
<3rain in an elevator is " sold," 19 Cent. Law J. 268-69 voting ; a paper embodying a vote ; also, the
.(1884), cases. whole number of votes cast. v. To decide
" 2 Pars. Contr. 87. by voting.
s Story, BaUm. § 4.
* Jones, Bailm. 36. 1 Pitts V. Millar, ante,
6 Bl. Com. 305, 452. ' L. bilanx, having two scales,
« The Idaho, 93 U. S. 579-80 (1876), cases. Strong, J. ; s Mc Williams w.'AUen, 45 Mo. 574 (1870).
Eobinson v. Memphis, &c. E. Co., 16 P. K. 57 (1883), < Lopez V. Lopez, 23 S. C. 269 (1885); Skinner u.
cases. . See generally Coggs v. Bernard, 2 Ld. Bay. 909 Lamp, 3 Ired. L. 165 (1842).
0704); 1 Sm. L. Cas. 369-454, cases. German Law, » Evans v. Wain, 71 Pa. 74 (1872).
3 Law Quar. Eev. 188-212 (1886). • 2 Bates, Partn. § 861, cases.
' Pitts V. Millar, L. E., 9 Q. B. 38ii (1874). ' F. balloUe, a little ball tot voting.
 BAN 104 BANK

May refer to the decision of a juror or Affords opportunity to interpose legal objection to
jurors, or to the preferences of persons quali- the marriage.*
fied to elect the oiScers of a corporation or BANC.2 The seat occupied by the judge*
of a govermnent. of a court ; more particularly, a full bench,
In French dictionaries, defii^ed as " the act of vot-
when all, or at least a majority, of the judges
ing by balls or tickets by putting the same into a are present for the decision of questions of
* box or urn; " also as, " secret voting by means of a law, as distinguished from the practice of
ball or tioliet." The word did not change its meaning one or more members of the court sitting,
when adopted into the English language.*
As applied to elections of public officers, with a jury, for the determination of ques-
voting by ballot signifies a mode of designat- tions of fact. Whence "banc days," and
"sitting in banc." Compare Bank, 3 (1);
Bench.
ing an elector's choice of a person for an
pffice by the deposit of a ticket; bearing the
BANK. 1. The earth bordering a water-
name of such person, in a receptacle pro- course, q.V.
vided for the purpose, in such a way as to
The banks of a river are the earth which contains
secure to the elector the privilege of com- it in its ordinary state of high water.' See Along;
plete and inviolable secrecy in regard to the Bed, 2; Riparian.
person voted for.^ 2. A bench.
Ttiis privilege of secrecy is the distinguishing feat-
ure of ballot voting. The object in view is the inde- (1) A judge's seat ; also, a court sitting for
the decision of matters of law — but for this
pendence of the voter.=
Voting by baUot is a constitutional method of vot- "banc" is the word more generally used.
ing which cannot be changed by a statute. Its per- See Banc ; Bench.
petuation ismeant to secure the right to vote without (3) An institution for the deposit, discount,
having the voter's opinion of men or measures in- or circulation of money.
quired into.' See Test, Acts. May refer to the association, the ofiice or
The natural import of " balloting at a national,
State, or municipal election" is, balloting in and for
place of business, or the managing officers as
the election of national. State, or municipal officers.
The expression will not apply to ballots casts for or a body.4
The sense in which "bank " or " banks " is intended
against a regulation like that of granting licenses for to be used is determined by their connection' with
the sale of intoxicating liquors.* what is said. An act to be done by a bank means an
Ballot-box. A receptacle for ballots; act to be done by those who have the authority to do
it. If it be an act within the franchise for banking, or
more precisely, such receptacle as is author- within the ordinary power of the bank, and it is done
ized by law.
by the president and' directors, or by their agents, we
" To stuff a ballot-box " means unlawfully, fraudu- say the bauk did it. If, however, an act is to be done
lently, and clandestinely to place in a ballot-box, at a relative to the institution, by which its charter is to be
lawful election, ballots which have not been voted, changed, the stockholders must do it, unless another
with intent to affect the result of the election.^ See mode has been provided by the charter. In one sense,
Election, 1 ; Vote. after it has been done, we may say that the bank did
BAN; BANXf." Public proclamation or it, but only so because what the stockholders have
notice. done becomes a part of the institution.^
Banns of matrimony. Publication, by Banks, in the commercial sense, are banks of
oral announcement, of an intended marriage, deposit, of discount, or of circulation. Speak-
ing strictly, the term "bank" implies a place for the
in a church or public chapel. deposit of money, as that is the most obvious purpose
of such an institution. Originally, the business of
'State V. Shaw, 9 S. 0. 138 (1877); Williams v. Stein, banking consisted only in receiving depbsits of bullion,
38 Ind. 92 (1871). plate, and the like, for safe-keeping. In time, bankers
^Brisbin v. Cleary, 26 Minn. 108 (1879), cases. Berry, J. assumed to discount bills and notes, and to loan money
See also Temple v. Mead, 4 Vt. S41 (1832); People v.
' 1 Bl. Com. 439.
Pease, 27 N. T. 45, 57 (1868); Williams v. Stein, Ss'lnd.
92, 95 (1871). ^ F. banc: L. bancus, a bench.
3 Attorney-General i). DetTOit Common Council, 58 = Pulley V. Municipality No. 2, 18 La. 537 (1841); Stone
Mich. 217 (1885). V. City of Augusta, 46 Me. 137 (18.58); Howard v. Inger-
" Commonwealth v. Howe, 144 Mass. 145 (1887),— upon soll, 13 How. 416-16 (1851); Houghton v. Chicago, &c. E.
an indictment for casting more than one ballot, con- Co., 47 Iowa, 372 (1877); Halsey v. McCormick, 13 N. Y.
296 (1855).
trary to Pub. Sts. c. 7, § 57.
1 See R. S. § 5615 ; Exp. Siebold, 100 U. S. 379 (1879). * See Rominger.t!. Keyes, 73 Ind. 377 (1881). .
^ A. S. gebann; L. L. ba^dum^ bannum, a procla- <• Gordon v. Appeal Tax Court, 3 How. 147^ (1845),
mation. CJompare Abandon; Contraband.- Wayne, J.
 103
BANK BANK

upon mortgage, pawn, or other security, and, at a still upon draft, check, or order; or where money is ad-
later period, to issue notes of their own intended as a vanced or loaned on stocks, bonds, bullion, bills ''of
circulating currency and a medium of exchange in- exchange, or promissory notes; or where stocks,
stead of gold and silver. Modern bankei-s frequently bonds, bullion, bills of exchange, or promissory notes
exercise any two or even all three of these functions; are received for discount or for sale.^
but it is still true that an institution prohibited from At common law the right of banking belongs to
exercising more than one of them is a bank, in the individuals, and is exercisable at pleasure. ^
strictest commercial sense. ^ Bankable. Eeceivable as the equivalent
Bank; banker; banking. A banker is of cash at a bank ; receivable for discount by
one who makes merchandise of money.2 a bank : as, a bankable or non-bankable bill,
" Banking," in its largest sense, includes or other paper.
the business of receiving deposits, loaning Bank for savings; savings bank. A
money, dealing in coin, bills of exchange, bank of deposit for the accumulation of small
etc., and issuing paper money.' savings belonging to the industrious and
In statutes " bank " usually designates an thrifty. 3
incorporated institution, and "banker" an A bank for the receipt of small sums de-
unincoj'porated association exercising " bank- posited by the poorer class of persons for
ing privileges." ' accumulation at interest.*
The business of banking, as defined by law An institution formed for the purpose of
and custom, consists in the issue of notes pay- receiving deposits of money for the benefit
able on demand, intended to circulate as
of the depositors investing the same, accumu-
money where the banks are banks of issue ; lating the profit or interest thereof, paying
in receiving deposits payable on demand; such profit or interest to the depositor, or
in discounting commercial paper; making retaining the same for his greater security,
loans of money on collateral security ; buy- and, further, of retaining the deposit itself.*
ing and selling bills of exchange ; negotiat- The primary relation of a depositor is that of a
ing loans, and dealing in negotiable seciirities creditor and beneficiary of a trust. In case of insolv-
issued by the government. State and national, ency, depositors stand as other creditors, with equal
rights to be paid ratably out of the estate."
and municipal and other corporations. < National bank; national banking as-
In Massachusetts "bank" applies to institutions
incorporated for banking purposes, not to oflSces kept sociation. An institution, created under
by individuals or copartnerships doing such banking United States law, for banking purposes, as
business as they have been authorized to do.^ distinguished from a bank organized under
The term " banker " includes all the business of a
money-changer. " theAn law
association
a State bank.
may ' —be formed by any number of
of a State
Having a place of business where deposits
persons not less than five. They sign " articles of as-
are received and paid out on checks and sociation," and acknowledge an " cSrganization certifi-
where money is loaned upon security is the cate " which states the name assumed', the place
where operations are to be carried on, the amount of
substance of the business of a banker.' See
Merchant. capital stock and the number of shares thereof, the
names and residences of the shareholders, and the
The terms bank and banker include any person, shares held by each. Upon filing in the ofBce of
firm, or company having a place of business where the comptroller of the currency these documents, the
credits are opened by the deposit or collection of
> Revenue Act, 13 July, 1866, § 9: 14 St. L. 115: E. S.
money or currency subject to be paid or remitted
§.3407; Selden v. Equitable Trust Co., 94U. S. 420-22
1 Oulton V. German Savings, &c. Institution, 17 Wall. (1876).
118-18 (1873,1, cases, Clifford, J. ; Bank tor Savmgs v. ! Bank of Augusta v. Earle, 13 Pet. 595 (1839). As to-
The Collector, 3 id. 513-14 (1865). See Eoniinger ti. responsibilit.y for correspondents and notaries, see
Keyes, 73 Ind. 377 (1881). 20 Am. Law Rev. 889-901 (1880), cases.
" 3 Bl. Com. 475. ' MercantUe Bank v. New York, 121 U. S. 161 (1887),
a Exchange Bank v. Hines, 3 Ohio St. 31-52 (1853), Matthews, J.
Bartley, C. X; 16 How. 416; 14 Bankr. Reg. 90; 32 La. * [Bank for Savings u. The Collector, 3 WaU. 613
An. 531.
(1865): McCoUough's Com. Diet. 146. See also Johnson
4 Mercantile Bank «. New York, 121 U. S. 156 (1887), V. Ward, 2 Bradw. 274 (1878).
Matthews, J. » Commonwealth v. Reading Savings Bank, 133 Mass.
' May V. Butterworth, 106 Mass. 76 (1870); 108 id. 513. 19, 21-23 (1882), Devens, J.
« Hinckley v. Belleville, 43 111. 188 (1867). 6 See People v. Mechanics' Sav. Inst., 93 N. Y. 9 (18.S.!).
'Warren v. Shook, 91 U. S. 710 (1875), Hunt, J. Act 'See National Bank Act, 3 June, 1864; R. S. Tit.
3 March, 1865: 13 St. L. 252, 472.
LXII, S§ 5133-5243.
 BANK BANK
106

association becomes, as from the date of the execu- personalty. Kf ty per centum must be ps^id before
tion of its certiflcate of organization, a body corporate, organization, and the rest in monthly installments of
empowered to used a corporate seal, have succession ten per centum each.i
for twenty years, make contracts, sue and be sued, The act of May 1, 1886 (24 St. L. 18), empowers an
elect directors and appoint other officers ; to prescribe, association to increase its capital stock, in accordance
by the board of directors, by-laws, not inconsistent with existing laws, to any sum approved by the
with law, for the conduct of general business, and the comptroller, by a vote of the holders of two-thirds of ,
exercise of its privileges; "to exercise . . all such the stock, notwithstanding the limit fixed in the orig-
incidental powers as shall be necessary to carry on inal articles of association. By a like vote an associ-
the business of banking; by discounting and negotiat- ation may change its name and location, the latter
ing promissory notes, drafts, bills of exchange, and not to be more than thirty miles distant from the for-
other evidences of debt; by receiving deposits; by mer location, after the comptroller has certified his
buying and selling exchange, coin, and bullion; by
loaning money on personal security; and by obtaining, approval.
Title to a share of stock passes when the owner de-
issuing, and circulating notes." ' livers his certiflcate to the purchaser with authority to
The name to be adopted is subject to approval by the transfer the share on the books of the bank." See
comptroller.^ No other bank or banker, except a sav- further Stock, 3 (2).
ings bank authorized by Congress, may use the word A national bank may hold such realty as is neces-
" national " as a portion of its title.^ sary for its immediate accommodation in the transac-
Any old association may become a national as- tion of business; such as shall be mortgaged to it in
sociation bythe name prescribed in its organization good faith by way of security for debts previously
certificate— the articles of association and the organ- contracted; such as shall be conveyed to it in satisfac-
ization certificate bfeing executed by a majority of tion of debts previously contracted in the course of its
the directors, the certiflcate declaring that the owners dealings; such as it shall purchase at sales under
of two-thirds of the capital stock have authorized the judgments, (^ecrees, or mortgages held by it, or shall
directors to make such certificate and to convert the purchase to secure debts due to it —title in the last
institution into a national association. The shares case not to be held longer than five years. ^
may continue for the same amount; and the former The circuit courts of the United States have juris-
directors may be continued in office, with full power diction of all suits by or against national banks estab-
to perfect the re-organization, until others are elected.* lished in the district for which the court is held,*
The certiflcate of the comptroller is conclusive as to irrespective of the amount in controversy or the citizen-
the completeness of the organization.^ ship of the parties, fi State courts of ite locality have
The re-organization of a State bank does not relieve jurisdiction of suits brought by it.* It may be sued
it from its former habilities: it remains substantially in a place in a -State other than where it is estab-
the same institution under another name.*
National banking associations constitute no part of A national bank may not loan or discount on the
lished.'
the Government. Designating a bank as a depositary security of its own stock, except to prevent loss.^
of public moAeys does not change the character of its A national bank may go into liquidation and be
organization, or convert its managers into public offi- closed by a vote of the holders of two-thirds of its
cers, or render the Government liable for its acts.^ stock.* In case of failure to pay its notes, the comp-
An association may exist with or without power troller may appoint a receiver to wind it up.i"
to issue circulation.^ To obtain circulating notes The Gpvemment has no priority of demand against
An association must deposit with the comptroller an insolvent bank."
United States bonds, as security for the redemption of National banks being designed to aid the Govern-
auch notes as it may issue; whereupon, within limits, ment in the administration of an important branch of
notes of various denominations may bo furnished by the public service, the States can exercise only such
the comptroller. Associations may be authorized to control over them as Congress may permit."
issue notes payable in gold."
One hundred thousand dollars is the minimum cap- > See Bailey v. Qark, 21 "Wall. 884' (1874).
" Johnston v. Laflin, 103 U. S. 800, 804 (1880).
ital allowed, except in places nob exceeding 6,000 in- 'E. S. §5137; 2Dm.371.
habitants, when, by consent of the comptroller, the
capital may be $50,000. Where the population exceeds * B. S. § 629, par. 10; 3 DiU. 298; 8 WaU. 506.
' 19 Alb. Law J. 182.
50,000, the capital must be at least $200,000. This cap- ' Bank of Bethel v. Pahquioque Bank, 14 Wall. 383
ital is divided into shares of $100 each, which are
(18T1); Claflin v. Houseman, 93 U. S. 130 (1876); 101
Mass. 240.
1 E. S. §1 5I3a-36.
= E. S. §6134. ' Casey v. Adams, 102 U. S. 66 (1880).
SR. S. §5136.
s E. S. § 5343.
*E. S. §§5IB4-55. » R. S. § 5220; 5 Biss. 499.
s Casey v. GalU, 94 U. S. 679 (1876). '°E. S. §5234, cases; Richmond v. Irons 121 U S
» Coffey V. Nat. Bank of Missouri, 46 Mo. 143 (1870).
' E. S. § 5133; Branch v. United States, 12 Ct. CI. 281 "Cook County
47- 50( Nat.
188Bank 7). ' 107 U ■ '
v. United States. S
(1876).
8 National Currency Acts, 11 Op. Att.-Gen. 334 (186B). >' Farmers
445 (1 ', &c.
88 Nat. Bank v. Bearing ■ ■
, 91 U. S. 33-34
2) .
»E. S. §5185. (1875). See Veazie Bank ti. Fenno, 8 Wall. 5
 BANKRUPT 107
BANKRUPTCY

Bank-bill; bank-note. A promissory Bankruptcy is a proceeding of an equitable nature —

note, issued by a bank under authority of a sequestration of a debtor's property that the cred-
itors may resort to, instead of to an ordinary suit at
law, payable on demand to the bearer. law or in equity.^
Bank-notes differ from ordinary prdmissory notes The object is equality of distribution of the assets
only in the recognition of them by general consent,
among creditors not legally secured.' Another pur-
and by the law to an extent, as a substitute and
pose, only second in importance to that, is speedy dis-
equivalent for legal money. In other respects they are tribution of assets. Our statutes have been filled
governed by the rules applicable to promissory notes with provisions designed to secure the early discharge
payable to bearer, i See Current, 2. of the debtor and the speedy settlement of his estate.'
Bank casMer. See Cashier. Bankrupt laws are for the benefit of the honest
Bank check. See Check; Exchange, 3. trader, his honest creditors, and public commerce.*
Bank director. See Directors. " The Congress shall have Power . . To establish
. . uniform Laws on the subject of Bankruptcies
Bank president. See Abstract, 1 ; Ap-
plication, 2;Directors. throughout the United States." » See Uniform.
The English word " bankrupt " had its origin in m-
Has no power by vii-tue of his otSce to bind the cidents of trade. Whatever secondary or figurative
bank in an unusual manner, or in any vmdertaking meaning the word may have acquired, its primary
outside of its customary routine of business. While and only legal meaning is that which confines it to
the directors, or usage, may confer upon him special traders. . As a state of "insolvency "usually pre-
power, the authority inherent in his position is very cedes "bankruptcy," it is not surprising that the two
slight.' words should sometimes be confounded. Insolvency
See generally Account, 1; Advances; Charter, 2; is the generic term, comprehending banliruptcy as a
Circulation; Collection; Deposit,2 (2); Discount, 2; species. A man may be insolvent without becoming
Funds; Moneyed; Reserve, 7; Tax, 2; Usury. a bankrupt, or having capacity to become such; and
BAH'KETJPT.s a trader who secretes a bankrupt may prove to be entirely solvent. Mere
himself, or does certain other acts tending insolvency never makes one a bankrupt without the
concun-ence of some act tending to the injury of his
to defraud his creditors.* See Trader.
A person found, by the proper court, to be creditors.*
The line of partition between bankrupt and insolv-
entitled or subject to have his property ent laws is not so distinctly marked as to enable a
taken for distribution among his creditors, person to say with precision what belongs exclusively
to the one and not to the other class of laws. It is
and he to be discharged from the legal obli- said that laws which merely liberate the person are
gation of past claims. In a loose sense, a insolvent laws, and those which discharge the contract
person as to whose status such an adjudica- are banlixupt laws. Another distinction, more uni-
tion may or would be made. formly observed, is, insolvent laws operate at the in-
Bankrupt law. A law intended to secure stance of an imprisoned debtor, bankrupt laws at the
instance of a creditor.'
the application of a debtor's effects to the StUl another featiu-e of insolvent laws is, the debtor
payment of his debts, and to relieve him Is not discharged from the legal obligation to pay de-
from the burden of them.s mands in full: he remains subject to suits and execu-
Bankrupt system. The law, and the tions on account of unoutlawed claims.^
Fraudulent bankruptcy. Bankruptcy
practice thereunder, respecting the division
of a bankrupt's property among his creditors. in which the debtor has practiced, or at-
Bankruptcy. The status or condition of tempted to practice, some fraud upon cred-
being a bankrupt; also, that branch of the ; by not disclosing all of his assets, or
itors as
law under which the assets of the estate of a by creating an unlawful preference.'
bankrupt may be distributed among his cred-
itors and he be discharged from the indebt- 1 Re Weitzel, 7 Biss. 290 (1876).
edness. 'International Bank v. Sherman, 101 U. S. 406 (1879);
Trimble v. Woodhead, 102 id. 650 (1880).
> See James v. Rogers, 23 Ind. 451, 463 (1864). •Bailey v. Glover, 21 Wall. 846-47 (1874), Miller, 1^.;
a Wheat o. Bank of Louisville, Sup. Ct. Ky. (1887), Jenkins v. International Bank, 106 U. S. 575-76 (1882);
cases. Same case, 27 Am. Law Eeg. 52 (1888) ; ib. 56-60, R. <2B1.
S. §5057. Com. 472, 475.
cases. See also 21 Cent. Law J. 144-46 (1883), cases.
3 F. banque, a table or counter; route, trace, track: » Constitution, Art. I, sec. 8, cl. 4.
his " banque " was removed and no trace of it left,— "Sackett V. Andross, 5 Hill, 343-44, 342 (N. T., 1843),
2 Bl. Com. 272. Ital. banca rotta, a broken bench: a Bronson, J. See also 41 Conn. 605; 2 Bened. 203.
money-changer's bench was broken up, on his failing ' Sturges V. Crownmshield, 4 Wheat. 194 (1819), Mar-
in business,— Skeat. See 3 Story, 453. shall, C. J.
4 2 Bl. Com. 285, 471. B Martin v. Berry, 37 Cal. 222 (1869).
' [2 Kent, 389; 2 Bl. Com. 474, 476; 109 U. S. 536. 9 See 4 Bl. Com. 166.
 108
BANKRUPTCY
BANKRUPTCY

Private bankruptcy. Has been applied to oases the creditors. In from ten to ninety days the creditors
of composition with creditors — resort to court for a met and nominated an assignee, who, with his sureties,
discharge being thereby obviated.' was to be approved by the com-t; whereupon, the
Voluntary Ibankruptey. That in which register deeded the estate to the assignee, who pro-
the debtor avails himself of the law. In- ceeded to settle the business.*
Upon the commission of an act of bankruptcy the
voluntary or comptHsory bankruptcy.
debtor's property becomes a common fund for the
In which the debtor, by proceedings insti- payment of his debts, he losing all right of proprietor-
tuted by one or more creditors, is judicially
ship overthere
When it" exists no purpose to defraud, delay, or
decided to be bankrupt.
A case of voluntary bankruptcy is in the nature of prefer, and the value of the estate remains unimpaired,
a suit by the debtor against his creditors.'' before proceedings are begun the debtor can deal
with the property.
Act of bankruptcy. An act by a debtor
Filing a petition is an attachment and an injunc-
which exposes him to adverse proceedings in tion — a caveat to all the world. After that, a person
bankruptcy. deals with the insolvent at his peril.^
Under the Act of March 3, 1867, amended A transfer designed to prevent equality of distribu-
by Acts of June 32, 1874, and of July 26, 1876, tion, made within four months before petition filed,
acts of bankruptcy were certain acts done by was held to be a fraud.* So was giving a note con-
fessing judgment. But in all such cases the intention
a debtor six mouths before an adjudication of the debtor was made the test.*
was sought : as, — (1) departing from the State Property illegally transferred was recoverable by
to defraud creditors; (3) remaining absent the assignee.*
with that intent; (3) concealing himself to Excepting attachments made within a prescribed,
period, and fraudulent dispositions, the assignee took
avoid service of process; (4) concealing or title subject to all equities, liens, or incmnbrances —
removing property to prevent its being at- in the same plight and condition as when the debtor "
tached, taken, or sequestered; (5) assigning
or giving away property or rights, to delay, heldUnder
it.« the acts of Congress a voluntary bankrupt
defraud, or hinder creditors; (6) being held was to pay thirty per centum of the provable claims,
unless less was accepted by one-fourth in number and
in custody or imprisoned seven days on ac- one-third in value of the creditors. A majority in
count of a claim over one hundred dollars ; number and three-fourths in value could aocepf a
(7) making, in contemplation of insolvency, a composition.
transfer of property, confessing a judgment, A discharge, which was a matter of favor, could be
had one year after adjudication, an order having first
procuring or suffering property to be taken been issued to such creditors as proved debts, to ap-
on process, with intent to prefer a creditor or pear and show cause, if they knew of any, why the
to defeat or delay the operation of the bank- discharge should not be granted. And a discharge
rupt law; (8) for a bank, banker, broker, which had been granted could be annulled, within two
years, for fraud undiscovered at the time of the dis-
Eierchant, trader, manufacturer, or miner, charge.
fraudulently to stop payment of commercial A discharge is no bar to an action on a judgment
paper, or pot to resume payment thereof, for recovered after the discharge, in a suit commenced
fourteen days; (9) for a bank or banker to before the bankruptcy, pending when the discharge
was granted, and upon a debt provable in bank-
fail to pay a depositor within forty days. 3
A debtor could have a jury trial upon any alleged
act of bankruptcy. A United States law supersedes a State law.'
ruptcy.^ But
Foreigners were exempt from the law; also, a citi- " See E. S. Tit. LXI: §| 4972-5132.
zen whose provable debts were less than three hundred "3 Kent, 389; 2 Bl. Com. 474, 476.
dollars. s International Bank u Sherman, 101 U. S. 406 (1879),
Proceedings were begun in the district court, by ■• Butcher v. Wright, 94 U. S. 553 (1876), cases.
petition with annexed schedules of debts and assets. ' Clarion Bank v. Jon'es, 21 Wall. 325 (1874); aark v.
This petition was referred to the " register " — an aux- Iselin, ib. 373 (1874); Watson v. Taylor, ib. 381 (1874);
iliary in matters of administration, — who ascertained Little V. Alexander, ib. 600 (1874).
whether the debts were above two hundred and fifty • Yeatmau v. Savings Institution, 95 U. S. 764
dollars ; if so, the debtor was adjudged a bankrupt and Stewart v. Piatt, 101 id. 738 (1879); 8 Bl. Com. 485.(1877);
' Ms estate ipso facto became vested in the register. ' Dunock V. Eevere Copper Co., 117 U. S. 559 (1886).'
There then issued a warrant to the maL*shal to notify See also Boynton v. Ball, 131 id. 457 (1887). See gener-
ally as to discharge, Laidley v. Cummings, 83 Ky. 606
I Exp. Vere, 19 Ves. *98 (1818). (1886); Fuller v. Pease, 144 Mass. 390 (1887).
^2 Wilson V. City Bank of St. Paul, 17 Wall. 481-83 "Sturges V. Crowninshield, 4 Wheat. 196 (1819);
(1873) ; United States v. Fox, 9B U. S. 673 (1877). den V. Saunders, 12 id. 813 (1837); Baldwin v HaleOg-1
3 E. S. § 5031, cases. Wall. 228-31 (1863).
 109
BANNS BARGAIN

upon the repeal of a Federal law, a previously enacted Inner barristers. Queen's counsel, ad-
State law becomes operative again. ^ mitted within the bar, in seats specially re-
The convention which framed the Constitution had
served for them.l
in view the English system. ^
Bankrupt laws were passed by Congress in 1800, Outer or utter barristers. Junior counsel,
1841, and 1867, but repealed, in each instance, after a who sit outside the bar. Compare Sergeant.
■comparatively brief operation. That of 1867, with its Disbar. To expel an attorney from mem-
amendments, was repealed by act of June 7, 1878, the
bership inthe legal profession. See further
repeal taking effect September 1, 1878, without effect Attorney.
upon pending cases.'
Such laws have been in force in England for more 2. In a somewhat general way a public
than three centuries. They had their origin in the bar may be defined as a counter, table, shelf,
Boman law.* or other similar device, designed and used
See further Aes, AJienum; Cessio; Composition, 3;
■Contemplation; Death, Civil; BlffiREDiTAS, Damnosa;
for the purpose of facilitating the sale and
Insolvency; Process, 1, Legal. delivery of liquors thei-e kept to any one who
BAITNS. See Ban. may apply for them, to be then and there
BAPTISTS, SEVENTH-DAT. See drunk, not in connection with meals, lunches
Sunday.
or food.2
A lunch counter would not be such a bar merely
BAH. 1. A particular portion of a court
because sales of liquor only are sometimes made
room.
Named from the space inclosed by two 3. An impediment ; an obstacle. Whence
there."
bars or rails: one of which separated the
the verbs "bar" and "debar," to prevent,
judge's bench from the rest of the room; cut off, defeat.
the other shut off both the bench and the area
Plea in bar. A plea intended to over-
for lawyers engaged in trials from the space throw an action ; a plea which sets up an
allotted to suitors, witnesses, and others. absolute or peremptory defense, as, payment.
Such pei'sons as appeared as speakers (ad- Special plea in bar. New matter avoiding
vocates, or counsel) before the court, were the inference of law on facts previously stated.
said to be " called to the bar," that is, priv- Temporary bar. A plea in bar which is
ileged so to appear, speak and otherwise serve
effectual for a limited period only: as, " ad-
in the presence of the judges as " barristers." ministered fully," until more assets come to
The corresponding phrase in the United
States is " admitted to the bar." hand. 3
BARBED WIRE. See Fence.
Proceedings in open court are said to take BARE. Compare Naked.
place "at the bar of the court,." or simply BARGAIN.* 1, n. A mutual contract or
" at bar." The particular case being argued agreement between two parties, the one to sell
is the " case at bar; " and a person on trial goods or lands, and the other to buy them.5
for a crime is "the prisoner at the bar." Any mutual undertaking.
The figurative expression ' ' before the bar " Bargain " more prominently, perhaps, than "agree-
of conscience " is not uncommon. ment," brings into view the mutuality of a contract."
In still another sense "the bar" denotes 3, V. To transfer in pursuance of a bargain ;
the members of the legal profession; as in as, "to grant, bargain, and sell."
speaking of the bar of a county, of a State, Bargainer. He who makes a bargain.
of the United States. Whence, also, are Bargainee. He who is to receive prop-
" bar associations," which consist of lawyers erty under the contract of a bargain; the
united for the purpose of furthering the in- grantee in a deed of bargain and sale. See
terests of their profession. Earnest; Grant, 3: Offer, 1.
Barrister. A counselor, learned in the > See 3 El. Com. 26; The Nation, Deo. 20, 1883, No. 964.
law, who pleads before courts, and undertakes 2 Commonwealth v. Rogers, 135 Mass. 639 (1883),
tbe advocacy or defense of causes generally. Colburn, J.
s See 3 Bl. Com. 305; 1 Flip. 4; 60 Md. 125; 1 Greg. 48.
> Tua V. Carriere, 117 U. S. 309 (1886). . « F. bargaigner, to chaffer: L. L. barca, a bark for
s Nelson v. Garland, 1 How. 272, 277 (1843). merchandise.
» See the Lowell BUI, as to partners, 19 Am. LawEev. » Hunt V. Adams, 5 Mass. "360 (1809), Parsons, C. J.;
.33 (1885). Packard v. Richardson, 17 id. *131-32 (1821).
* Canada South. E. Co. v. Glebhard, 109 U. S. 536 (1883). • Sage V. WUoox, 6 Conn. 85, 90 (1836).
 BARGAIN 110 BARON

Bargain and sale. A contract whereby Time bargain. A contract for the sale
the bargainer, for some pecuniary consider- of stocks, provisions, or other commodity or
ation, bargains and sells, that is, contracts to article of merchandise, at a certain price on
convey, land to the bargainee.^ a future day, the vendor himself intending
Also used of transfers of personalty. to purchase the thing, which is the sub-
A contract to convey, for valuable consid- ject of the proposed sale, before the day
eration, by any words sufficient to raise a for the delivery has arrived. See further
use in the bargainee.^ Wager, 2.
At common law, land can not pass wItlioTit livery, Unconscionable bargain. Such bargain
q. V. In this contract the bargain vests the use, and
as no man in his senses and not under delu-
the Statute of Uses then vests, that is, completes, the
sion would make, on the one hand, and as no
possession.^
The force of that statute is exhausted in transfer- honest and fair man would accept, on the
ring the legal title in fee-simple to the bargainee.^ See other, — being an inequitable and unconsci-
Use, 3.
entious bargain. 1
In a "bargain and sale" of personalty the thing A bargain of so unconscionable a nature
becomes the buyer's the moment the contract is made,
and of such gross inequality as naturally
whether delivered or not. In an "executory agree-
ment," the thing remains the property of the vendor leads to the presumption of fraud, imposi-
till the contract is executed.*
tion, or undue influence.^
Catching a bargain. An agreement to A court of equity is not bound to shut its eyes to the
evident character of a transaction where its aid has
purchase an expectant estate at an inade-
been sought to carry into effect an unconscionable
quate price.
bargain, but it will leave the party to his remedy at
Applied to heirs dealing with their expectancies,
and to reversioners and remainder-men dealing with law; as, in salvage cases. ^
property already vested in them, but of which the en- BABGE. See Ship, 2; Vessel.
joyment isfuture, and is, therefore, apt to be under- BARK. See Litera, Qui hseret, etc.
estimated bythe giddy, the necessitous, the improv- BAKU". See Arson ; Belong ; Curtilage.
ident, and the yoimg.^ Within the meaning of a statute against arson, the
In most cases have concurred deceit and illusion as to building need not be used for storing provender.*
other persons. The father, ancestor, or other relative, The word may include a building mainly used for
from whom was the expectation of the estate, has
been kept in the dark. The expectant has been kept storing tobacco.*
BABON.s 1. The man — one able to bear
from disclosing his circumstances, and resorting to
them for advice and relief. This misleads -the an- arms; one bound to I'ender service to the
cestor, who has been induced to leave his estate, not king.'' See Curtilage, 1.
to his heir or family, but to artful persons who have 2. A member of the nobility«in the fifth
divided the spoil beforehand.^ and lowest degree.'
To maintain parental and quasi parental authority, 3. A judge of the court of exchequer.
to prevent the waste of family estates, and to protect
the heedless and necessitous froni the designs of ra-
"Barons of the realm" only were formerly ap-
pacity, relief is afforded in equity. The purchaser pointed tothe ofdce; » as, "Park, B."
must establish not merely that there is no fraud, but
4. A lord ; a husband.
"make good the bargain," that is, show that a fair Baron and femme. Man and woman;
and adequate {g. v.) consideration has been paid.' husband and wife.'
Compare UTicon^cionable Bargain. Covert-baron. One under coverture;
Strike a bargain. To shake hands in a wife.ii' See Coverture.
attestation of an agreement ; also, to come to
' Chesterfield v. Janssen, ante. '
an agreement. = [1 Story, Eq. § 244.
Fi'om the old custom of shaking hands as necessary s Mississippi, &o. E. Co. v. Cromwell, 91 U. S. 643
to bind a bargain." (1875). See Post v. Jones, 19 How. 160 (1856); The
1 8 Bl. Com. 338 ; Slifer v. Beates, 9 S. & B. HTi (1832). Emulous, 1 Sumn. 210 (1832); The Brooks, 17 F. E. 548
= [4 Kent, 495. (1883); 16 id. 144; 4 Del. Ch. 198; 27 Alb. L. J. 4 (1883).
8 Croxall V. Shererd, 5 Wall. 882 (1866), cases. * State V. Smith, 28 Iowa, 668 (1870).
* Benj. Sales, §§ 308, 310; Smith, Contr. 331; Smith v. ' Eatekin v. State, 28 Ohio St. 420 (1875).
Surraan, 9 B. & C. S68 (1829). •L. L. baro, vara: L. vir, a man,— Webster. Ger.
0 1 Story, Eq. § 337. bar, a man; beran, to carry,— Skeat.
' Chesterfield v. Janssen, 2 Ves. 167, 155 (1750), Hard- ' 1 Bl. Com. 398-99.
wicke, Ld. C. «3B1. Corn. 44, 56-56.
» 1 Bl. Com. 432.
' 1 Story, Eq. §§ 335-36. '» 1 Bl. Com. 443.
8 2 Bl. Com. 448.
 /111

BARRATRY BASTARD

BARRATRY.! i. in maritime law, an BARTER.! A contract by which goods

act committed by the master or mariners of a are exchanged for goods. ^
The exchange of one commodity or article
ship, for some unlawful or fraudulent pur-
pose, contrary to their duty to the owners, of property for another.^
The consideration, instead of being paid in money,
whereby the latter sustain injury.^ as in the case of a sale, is paid in goods or merchandise
Consists in willful acts of the master or
susceptible of valuation.*
mariners, done for some unlawful or fraud- An agent empowered to sell cannot barter; and the
ulent purpose, contrary to their duty to the principal may recover from an innocent transferee.*
owners of the vessel. ^ See Exchange, 1 ; Sale.
The act must not be accidental, nor caused by neg- BAS-RELIEF. See Design, 2.
ligence — unless tbat is so gross as to amount to evi- BASE. Inferior ; of low degree.
dence of fraud. The intention need not be to promote Base animal. An animal which is unfit
one's own benefit. Any willful act of known crim- for food. See A,nimal.
inality, or of malversation, operating to the prejudice
of the owner, is barratry.' Base coin. Debased coin.*
All definitions agree that fraud is a constituent part Base fee. An estate in fee that ends
of the act.* whenever an annexed qualification requires
3. lu criminal law, common barratry is it.' See Fee, 1.
the offense of frequently exciting and stir- Base services. Fit only for a person of
ring up suits and quarrels, either at law or
servile rank.*
otherwise.5 Base tenant. One bound to servile serv-
The proof must show at least three instances of ice.' See Fetjd.
offending." BASE BALL. See Game, 2.
" A common barrator is a common mover
BASTARD.'" One that is not only be-
or stirrer up or maintainer of suits, quarrels,
or parties, either in courts or in the country ; gotten, but born, out of lawful matrimony."
Such child as is not born either in lawful
in the country in three manners : in disturb- wedlock, or within a competent time after
ance of the peace ; in taking or detaining of
the possession of houses, lands, or goods, etc. , its determination. !3
which are in question or controversy, not One begotten and born out of lawful wed-
only by force, but also by subtlety and deceit, The test is whether the husband of the woman who
and for the most part in suppression of truth lock."
gives birth to the child is its father.'*
and right; by false invention, and sowing In Virginia, one born out of wedlock, lawful or un-
of calumny, rumors, and reports, whereby lawful, or not within a competent time after the
coverture is determined; or, if born out of wedlock,
discord and disquiet arise between neigh-
whose parents do not afterward intermarry, and the
bors." ^ father acknowledges the child; or who is born in wed-
We have here strife and contention, and deceit or
lock when procreation by the husband is for any cause
fraud, growing out of the compound origin and syn-
onymous uses of the word. In the sense of " strife impossible."
and contention," the word was used in connection Bastardize. To make out to be a bas-
with policies of insurance as late as the middle of the tard, an illegitimate or natural child.
last century." > F. barat, trafBc.
BARREN. See Lett; Rent; Trust. 1. ' 2 Bl. Com. 446.
BARRISTER. See Bab. 1. » Cooper V. State, 37 Ark. 418 (1881), English, C. J.
'Washington County v. Thompson, 12 Bush, 241
> Sp. barateria, deceit, fraud,— 3 Pet. *230. (1877), Cofer, J.
» Marcardier v. Chesapealse Ins. Co., 8 Cranch, 49 » Guerreiro v. Peile, 3 B. & Aid. 616 (1820).
« 6 Wheat. 333.
(1814), Story, J.
sLawton v. Sun Mut. Ins. Co., 2 Cush. 511-12 (1848), ' [2 Bl. Com. 109.
e [2 Bl. Com. 62, 6J.
Shftw, C. J. ; Atkinson v. Great West. Ins. Co., 65 N. T. » 2 Bl. Com. 148.
638-40 (1875), cases; 2 Wash. 66.
4 Patapsco Ins. Co. v. Coulter, 3 Pet. *230 (1830). i»F. bastard! fils de last, son of a packsaddle —
» 4 Bl. Com. 134. made454.beds of their saddles,— Skeat.
muleteers
>"1 Bl. Com.
•Commonwealth v. M'Culloeh, 15 Mass. *229 (1818); " 2 Bl. Com. 247.
Commonwealths Tubbs, 1 Cush. 3 (1848). 13 2 Kent, SOS.
' The Case of Barratry, 8 Coke, *72 (1612).
8 Atkinson v. Great Western Ins. Ck)., 4 Daly, 16-20 I* Wilson V. Babb, 18 S. C. 69-70 (1883), Simpson, C. J.
(1871), Daly, C. J. n Smith V. Perry, 80 Va. 570 (1885), Lacy, J.
 BATTEL 112 BATTERY

Bastardy. The ofifense of begetting an statute 59 Geo. IH (1819), c. 46.» Compare Ordeal-
Wager, 1.
illegitimate child^ also, the condition of
being an illegitimate child — illegitimacy. BATTERY.^ The unlawful beating of
Bastardy process. The statutory mode another. 3
of proceeding against the putative father of Any unlawful touching of the person of
an illegitimate child, to secure maintenance another, either by the aggressor or by any
for the child. person or thing set in motion by him.<
Bastardy bond. The obligation entered The least touching of another's person will-
into by such father with the guardians of the fully, or in anger, is a battery. The law
poor, conditioned for the payment of the cannot draw the line between different de-
lying-in expenses, maintenance of the child, grees of violence, and therefore prohibits the
and, perhaps, such costs as may have been first and lowest stage of it — every man's
incurred and such fine as has been imposed.' person being sacred and no other having a
At common law there was no legal liability upon right to meddle with it in the slightest man-
the father to support his bastard child. Now, at the
instance of the mother, he can be made support it, by In assessing damages the degree of violence is taken
into account. See Beat.
& "bastardy proceeding." '^
A bastard is a filius nuUius, son of nobody, or filius ner.^
Every *^' battery " includes an " assault." The two
populi, son of the people. He has no inheritable offenses are joined in indictments, and the assault
blood, — ,has no heir except of his own body. He m'ay, alone may be proved. Whence " assault and battery,"
however, take by bequest or devise. ^ which is — simple, wnen a mere touching or beating
He has a right to maintenance ; his settlement is the is intended ; aggravated, when grievous bodily harm
same as his mother's at his birth; he takes her name, is inflicted, as by breaking a limb or disfiguring the
but he may acquire a name by ,reputation.* face; felonious, when death is designed, or sei'ibus
Once a marriage is proven, nothing can impugn the wounding- with, intent to commit a felony, when
legitimacy of issue short of proof of facts showing the end sought is a felony, at common law or by stat
it to be impossible that the husband could be the ute." See Assault,
father.^ While "battery " includes "assault," it does not
By the civil law, and statutes in many States, the include " an assault with a deadly weapon with intent
subsequent marriage of the parents legitimates chil- to commit bodily harm." ^
dren born prior thereto. This seems to be the law in A battery may be lawful or justifiable, or unlawful.
Alabama, Georgia. Illinois, Indiana, Kentucky, Loui- It is lawful: (l)when committed under authority, as
siana, Maine, Maryland, Massachusetts, Mississippi, by an officer in order to preserve the peace,' or by a
Missouri, Ohio, Pennsylvania, Vermont, and Virginia." parent, master, teacher, or military officer, each of
See Abandon, 3 (2); Access; Adulterine; Con- whom may correct moderately; (2) when in self-de-
ceal, 4; Filiation; Marriage; Pregnancy. fense; that is, of self, wife, husband, child, parent,
BATTEL.' Trial by combat or duel. servant; (3) when -in defense of onp's own goods or
Also called wager of battel, battle, battaile. possession. It is unlawful: (1) when it originates in
In the nature of an appeal to Providence, under malice — is committed in an angry, spiteful, insolent,
or rude manner; (2) when it is the result of censur-
an apprehension and hope that' Heaven would give the
victory to him who had the right. able carelessness.**
Introduced by theConquerer; and used in the court- A trespasser who uses force raiay be summarily
martial, or court of chivalry and honor, in appeals of ejected. A person assailed need not wait till a blow
felony, and in writs of right — the last and most solemn has been dealt him. At the same time resistance must
decision of real property.^ not exceed the degree of necessary defense — for it is
Recognized as the law of the laud as late as 1818, thelaw that punishes. Any resistance in the offender
in the case of Ashford v. Thornton.^ Abolished by to justifiable apprehension becomes a new battery."
Whatever is attached to the person pai-takes of its
inviolability: as, the skirt of the coat or dress, an
' See (Jleason v. Commissioners, 30 Kan. 493 (1883). object in the hand.
' Stowers v. Hollis, 83 Ky. 549 (1886).
»1 Bl. Com. 469; 8 id. 247-49; Gaines v. Hennen, 24 ' See generally United States v. Gibert, 2 Sumn. 68
How. 553,592 (1860); Gaines •«. New Orleans, 6 Wall. (1834), Story, J.
618 (1867) ; Smith v.Bu Bose, Sup. Ct. Ga. (1887) : 36 Alb. 3 L. batuere, to beat.
Law J. 344-48. " 3 Bl. Com. 120.
' 1 Bl. Com. 459. * 1 Saund. PI. & Ev. *141; Kirland v. State, 43 Ind. 163
s Patterson v. Gaines, 6 How. 589, 598 (1848). See also (1873); 3 Cooley, Bl. Com. 120, note.
18 Cent. Law J. 262-68, 305-7 (1884), cases. ' 8 Bl. Com. 120; Johnson v. State, 17 Tex. 517 (1856).
« See 2 Kent, 210-14. » See 4 Bl. Com. 216; 13 Allen, 817; 17 F. E. 266.
' L. batuere, to strike, beat. ' People i;, Helbing, 61 Cal. 621 (1883).
8 3 Bl. Com. 837; 4 id. 346; Coke, Litt. § 2945. 8 See 3 Bl. Com. 120-21.
» 1 Bam. & Aid. 405. • See 2 Bishop, Cr. L. § 661.
 113
BATTUEE BEARER

To strike the horse which another person rides or highway, and is prejudicial to the interests of the com-
drives is an assault. The owner is liable for a battery munity and of the rights of individual property owners,
when his horse, left near a sidewallc, bites or kiclts a may be declared a' public nuisance and its continuance
restrained. As, a window built in the second story of
passer-by.
The remedy in a civil court is an action of trespass a house, sixteen feet above the sidewalk and project-
vietarmisiot damages; in a criminal court, indict- ing three and a halt feet beyond the property or build-
ment-for assault and battery for the public wrong. ^
While it is no defense to a civil action for an as- ing line.^IT ENACTED.
BE See Act, 3.
sault and battery that the acts complained of were BEACH. The land, between the lines of
committed in a fight engaged in by mutual consent,
high and low water, over which the tide ebbs
such consent may go in mitigation of the damages.^
See Abbt; Arrest, 2; Defense,!; Duress; Force; and flows ; synonymous with shore, strand,
Manus, MoUiter; Injury; Provocation; Wound.
BATTTJRE. "Accretion," which is the A deed
flat. 2 of land described as boimded ' ' on the beach "
does not convey the shore below high-water mark,
imperceptible augmentation of the soil on the unless this boundary is controlled by other parts of
shore of a stream, is called "alluvion" and the description.
sometimes "batture." ' Taking sea-weed from an iminclosed beach, and
A marine term, denoting a bottom of sand, stone or selling stones therefrom from time to time, may oper-
rock mixed together, and rising toward the surface of ate to disseize the true owner.^
the water. From the French battre, to beat: beaten BEACOH. See Commerce ; Wreck.
by the water. . An elevation of the bed of a BEANS. See Grain.
river, under the surface of the water; also, sometimes,
the same elevation of the bank, when it has risen BEAR. See Date ; Interest, 2 (3).
above the surface of the water or is as high as the land BEAB.EB. He who bears or carries a
on the outside of the bank. * See Accretion. thing ; he who presents for payment a bill,
BAWD.* One who procures opportuni- check, or note, transferable by delivery.
ties for persons of opposite sexes to cohabit A note payable to "A or bearer" is negotiable
in an illicit manner.^ without indorsement, and payment may be demanded
by any bearer as the person whom the maker prom-
Bawdy-house. A house of ill-fame; a ised to pay. The transferrer is not liable except on
house kept for the resort and unlawful con- failure of the consideration. The holder is presumed
-venience of lewd people of both sexes; a to be owner for value; but any circumstance of sus-
house resorted to for purposes of lewdness picion, as theft of the instrument by a former holder,
may require the present holder to prove that he gave
and prostitution.'
The prosecution having shown that the defendant value for the paper. <
The bona fide purchaser of a note payable to
is the keeper of a house alleged to be a common
bawdy-house, testimony as to the general reputation bearer, but stolen from the rightful holder, may re-
cover the amount of it from the maker; otherwise,
of the house, of the persons who frequent it, and of the
defendant, is admissible, as tending to show the real where the note is stolen directly from the maker.'
A note payable to bearer is said to be assignable by
character of the house.'
Keeping a bawdy-house is Indictable as a common delivery; but really there is no "assignment" at all.
nuisance at common law." See House, 1, Of ill-fame; The paper passes by mere delivery, the holder never
Prostitute. makes title through any assignment, but claims as
See Lights, Ancient, bearer. The note is an original promise by the maker
BAY-WINDOW.
A nut or bay-window which is maintained without to pay any person who shall become bearer; it is,
authority of law, which encroaches on the public therefore, payable to any and every person who suc-
cessively holds the note bona fide, not by virtue of an
13 Bl. Com. 121; 4 id. 216; Kirland v. State, 43 Ind. assignment of the promise, but by the original, direct
148-56 (1873), cases ; State v. Davis, 1 Hill, S. C, 46 (1833). promise moving from the maker."
"Barholt v. Wright, Sup. Ct. Ohio (1887), cases: 12 See Blank, 2; Bond; Coupon; Negotiate, 2.
N. E. Kep. 185; 36 Alb. Law J. 3 (1887), cases.
s [Zeller v. Tacht Oub, 34 La. An. 838 (1882), Todd, J. ; 1 Reimer's Appeal, 100 Pa. 182, 190 (1888); Common-
4 Hall's Law J. 518; 12 F. E. 295; 15 Wall. 650. wealth V. Harris, 10 W. N. C. 10-15 (1881),- PhUadel-
4 Morgan v. Livingston, 3 Mart. Ill (1819),- Martin, J. ; phia cases. v. Willcutt, B Gray, 335 (1855); 41 Conn. 14;
■ib. 11. See Municipality No. 2 11. Orleans Cotton 2 [Doane
Press, 18 La. 436 (1841). 15 Me. 237; 48 id. 68.
' F. baud, gay, wanton: Ger. bald, bold, free. s Litchfield v. Ferguson, 141 Mass. 97 (1886).
• Dyer v. Morris, 4 Mo. 316 (1835). «2 Bl. Com. 468; 2 Pars. Contr. 242; 14 WaU. 296;
'State V. Boardman, 64 Me. 529 (1874); McAlister v. 17 Blatch. 2.
Clark, 33 Conn. 92 (1865); State v. Hand, 7 Iowa, 411 ' Branch v. Commissioners, 80 Va. 432-34(1885), cases.
» Bnllard v. Bell, 1 Mas. 362 (1817), Story, J. ; Thomp-
<1858);' Harwood v. People, 26 N. Y. 191 (1863); State v.
Brunell, 29 Wis. 436 (1872), cases. son V. Perrine, 108 U. S. 592-93 (1882), cases; Chicka-
"Martin v. StUlweU, 13 Johns. •275 (1816). ming V. Carpenter, ib. 666 (1882).
(8)
 BEARING 114 BELIEF

BEARING. See Date; Interest, 2(3). BEHALF. See Interest, 3 (1).

BEAST. See Animal.
A witness called by a party testifies " in his behalf "
Beasts of the plow. An ancient expres- though he testifies against his interest. ^
sion referring to animals employed in the or- BEHAVIOR. Manner of having, hold-
dinary uses of husbandry, or other actual ing, or keeping one's self ; personal carriage
labor in a lawful and useful industry.! See and demeanor ; bearing, with respect to pro-
Distress (3) ; Horse. priety, morals, and the requirements of law.
BEAT. In law, not merely to whip, Disorderly behavior. See Contempt;
Disorder, 3; Order, 4.
wound, or hurt ; includes any unlawful im-
position ofthe hand or arm. 2 ' Good behavior. Bearing which conforms
to the law.
To commit a battery,' q. v.
All persons who are not of good fame may be bound
BED. 1. The right of connubial inter- over to good behavior — an expression of so great lati-
course cohabitation,
; q. v. Whence bed and tude as to leave much to be determined by the discre-
board. See Divorce. tion of the magistrate." See Suspicion, 3.
2. The bed of a river is that soil so usu- Security to be of good behavior includes more than
ally covered by water as to be distinguishable security to keep the peace ; it is demanded with greater
from the banks, by the character of the soil, caution, and the recognizance is more easily forfeited.*
See Peace, 1. i
or vegetation, or both, produced by the com- Misbehavior. Improper, unlawful con-
mon presence and action of flowing water.* duct.
Compare Bank, 1. A verdict will be set aside for gross misbehavior in
BEE. See Animal. the jury, the prevailing party, or his counsel; and an
BEER. See Liquor; Prohibition, 3. award will be set aside for misbehavior in the arbitra-
BEEVES. See Neat. tors or referee. 3
A judge holds office for a specified term, if he shall
BEFORE. See After; Ante; Coram; On. " so long behave himself well." See Tenure, Of office.
Before the twenty-eighth of a month means by the Each house of Congress may punish its members for
twenty-seventh, at least.^ disorderly behavior.*
Before a given day excludes that day.' BEING. Compare In, 3 (3), Esse.
Before the court. When a matter, by An allegatioHr^that liquor was sold to S. and W. M.,
regular proceeding, is made to engage or re- " being " minors, shows with sufdcient certainty that
ceive the direct attention of a court, for the those persons were minors.'
purpose of decision, it is said to be or to be BELIEF. ' Conviction of mind, founded
pending "before the court." See Decision; on evidence, that a fact exists — that an act
'Dictum. was done, that a statement is true.6
( A certificate by a clerk that a complaint was sworn The. difference between "belief" and
to "before said court" raises a presumption that this " knowledge " consists in the degree of cer-
was done in court.' tainty. Things which do not make a deep
Before trial. May mean before pleading impression on the memory may be said to
to the merits,* — implies that a suit has been
leave a " belief." Knowledge is firm belief.'
commenced.' "Between mere belief and knowledge there is a
BEGGHSra. See vagrant. wide difference; " for example, as to whether a lode
The act of a cripple who stands upon a sidewalk or vein of gold or sflver exists in a claim proposed
and in silence holds out his hand for money from pass-
for The
a patent.8
distinction between the two words has become
ers-by is" begging for alms." i*"
BEGIN. See Affirm, 1; At, 3; Run, 5. important where the contents of a paper are to be
verified as true to the knowledge of the affiant, ex-
1 Somers v. Emerson, 68 N. H. 49 (1876).
» Gkiodrum v. State, 60 Ga. 511 (1878). ■ Richerson v. Stemburg, 65 111. 272 (1872).
' State u Beverlin, 30 Kan. 613 (1883). »4 Bl. Com. 256; 1 Binn. 98, n; 2 Yeates, 437.
< Howard v. Ingersoll, 13 How. 427, 381, 416 (1851), > 3 Bl. Com. 387; 4 id. 361.
Curtis, J. * Constitution, Art. I, sec. 5, cl. 2.
s Metropolitan Nat. Bank of New York v, Morehea,a, " State V. Boucher, 59 Wis. 481 (1884).
38 N. J. E. 500 (1884). » Giddens v. Mirk, 4 Ga. 369 (1848). See also State v.
» Ward V. Walters, 63 Wis. 44 (1885). Grant, 76 Mo. 246 (1882).
'Tacey 1). Noyes, 143 Mass. 451 (1887). ' [Hatch V. Carpenter, 9 Gray, 274 (1857), Shaw, C. J.;
8 Winship v. People, 61 111. 898 (1869). 9 Cal. 62.
"Horner v. PiUdngton, 11 Ind. 442 (1858). 8 Iron Silver Mining Co. v. Reynolds, 124 U. S. 383
^'Re Haller, 3 Abb. N. Caa. 65 (1877). (1888), Field, J.
 115
BELLIGERENT BENEFICE

ceptasto a matter stated on " information and belief," over inferior tribunals, magistrates, and corpora-
which he must state he believes to be true.^
That may be ground for " suspicion " which will not tions.'
Bencher. In England, a dignitary of the
evidence "belief." ^ inns of court.
While a person may have reason to believe and yet
Each inn is presided over by a certain number of
disbelieve, he cannot " verily believe " without having benchers who exercise the right of admitting candi-
good reason in fact.^ dates as members of their society and of ultimately
The grounds of belief are: credulity, experience,
calling them to the bar. They are selected from
probability, induction. Experience constitutes the members who have distinguished themselves in their
basis of belief in human testimony. Aid is derived
profession. They also exercise general supervision
from the experience of others. ]|elief in such testi- over the professional conduct of coimselors who are
mony is a fundamental principle of our moral nature.
members of the inn.^
This is strengthened by corroborating circumstances.
Bench-warrant. Process of arrest issued
Probability is determined by experience and reason-
ing combined. Induction tests probability.* against a person charged with a crime or a
See Answer, 3; Certainty; Credit, 2; Deceit; contempt of court.
Fraud; Knowledge, 1; Suppose; Suspicion. 1. A process issued againsf a person under
BELLIGERENT. See Wab.
indictment to bring him into court to answer
BELL-ROPE. See Obstrtjct, 1. the charge.
BELLS. See Nthsancje.
2. A process issued by a civil court for
BELONG-. In statutes referring to in- the apprehension of a person appearing
habitancy, the poor, etc., designates the place to be guilty, under verified allegations, of
of a person's legal settlement, not merely his an indictable civil injury; as, where a
place of residence. 5 debtor, insolvent and believed to have de-
Belonging to. In the Pennsylvania statute de- frauded or to be intending to defraud his
fining arson, includes all structures (as, for example,
creditors, is disposing of his effects or is
a bam) so near a dwelling-house on the same prem-
ises as to endanger the safety of the house in case of about to remove with them from the juris-
fire.' See Accessory; Incident. diction.
BELOW. Compare Above ; Infba. The process may be issued by a judge on the bench
(whence the name "bench" warrant), or by a judge
BENCH. The judge's seat in a court. at chambers.
Also, the judges themselves as a tribunal
The proceeding is interlocutory,— like a rule on a
or a professional class: as, the common or defendant to show cause why he should not be held to
common pleas bench, the supreme bench, a bail in an action ex contractu; and is limited to cases
full or partial bench. Compare Bar, 1. where there appears to be a strong presumption of
fraud of some kind on one or more creditors. Hence,
ICtng's or Queen's bench. The supreme fraud is the matter to be alleged, controverted, and
court of common law in England, now substantiated. The remedy is allowed without regard
merged into the High Court of Justice. to the place where the fraud was perpetrated, as in
Abbreviated K. B., and Q. B. actions, of tort. The proceeding is not in the nature
The king in person used to sit In this court: in of a summary conviction, but simply an arrest for
theory it was always held before the sovereign. Dur- debt under the regulated supervision of a judge, in-
ing thb reign of a queen it is called the "Queen's stead of the arbitrary and badly controlled discretion
bench." In the time of Cromwell it was styled the of a party. Nor is the proceeding criminal : the fraud
"upper bench." It succeeded the aula regie, q. v. is treated as a private injuiy. The plaintiff files a
Although supposed to follow the person of the sover- preliminary afildavit showing, in at least general
eign, itwas in fact held at Westminster. It consisted terms, probable cause to the satisfaction of the court.
formerly of a chief justice and four associate jus- This affldavit also specifies the nature of the claim,
tices — the sovereign conservators of the peace. The whether a contract or not, and, that the amoimt of
jurisdiction of the court, which was originally crim- bail may be known, the amount of the claim. A hear-
inal and included trespasses, in time included all per- ing of the proofs is fixed, at which the defendant, who
sonal common-law actions between subjects, and has been previously arrested and imprisoned or bailed,
actions of ejectment. It had also supervisoiy power
may deny all allegations and demand proof of the
alleged facts.' See Attach, 2.
> See Black v. Halstead, 39 Pa. 71 (1861); 56 id. 33; 67 BENEFICE. A gratuitous donation, as,
id. 477; 79 id. 384; 81 id. 180; 83 id. 354.
" Commonwealth v. Lottery Tickets, 5 Cush. 374 (1850). an estate by feudal tenure; also, an eoclesi-
8 Russell V. Ealph, 53 Wis. 332 (1881), cases.
<lGreenl. Ev. Ch. m. 1 See 3 Bl. Com. 41; 4 id. 365.
6 Reading v. Westport, 19 Conn. 564 (1849), Church, » Holthouse's Law Diet.
C. J.; 3 id. 467; 18 id. 435; 8 Vt. 45. sGosllne v. Place, 32 Pa. 520 (1859), Lowrle, C. J.;
• Hfll V. Commonwealth, 98 Pa. 195 (1881). Act 12 July, 1843.
 BENEFICIARY 116 BENEVOLENClfi

astical living or church preferment given or A contract of membership must be read in the light
held for life. 1 afforded by the constitution and by-laws,' See Acci-
dent; Association.
BENEFICIAEY. One who is entitled
to, the benefit of a contract or of an estate Benefits accepted. See Agent; As-
held by another. sumpsitCONTEACT,
; Implied ; ESTOPPEL.
The word, though a little remote from the original Benefits and burdens. Advantages and
meaning of the expression " cestui que trust,^^ is more disadvantages ; profits and losses ; rights and
appropriate for one who is a trustee or fide-commis- duties. See Buedbn.
sary, =. See Trust, Cestui, etc. Beneficial. 1. For the assistance of
As a member of a beneficial society, see Benefit. members, as see^ Society, above.
BENEFIT. Good, advantage; fruit, 3. Entitled to receive the income or profit,
profit, use; aid. as the beneficial owner of an estate. See
As, in the expressions, assignment for the Beneficlaet.
benefit of creditors, common or mutual bene-
3. Contributing to the end in view; sup-
fit, benefit of a doubt, of clergy, of copyright,
porting or maintaining, rather than restrict-
of a law. See Betterment ; Use, 2.
Only he for whose benefit a thing exists can com-
ing or defeating; liberal. See Consteuc-
plain of a non-recognition or abuse of his right; and TiON ; Statute, Eemedial ; Res, 3, Ut, etc.
he who retains the benefit of an act must bear the BENEVOLENCE; BENEVOLENT.
burden.' He who has enjoyed the fruit of an act can- "Benevolent," of itself, without anything in
not afterward deny the existenco or validity of the the context of a will to restrict its ordinary
act— as, that a bond is not valid,* that a law is uncon-
stitutional,^ oran act ultra vires. See Commodum.
meaning, clearly includes not only purposes
which are deemed charitable by a court of
Benefit society. An association incorpo-
rated for the purpose of receiving periodical equity, but also any acts of kindness, good
payments from members, to be loaned or will or disposition to do good, the objects of
which have no relation to technical charities.^
given to such members as may need pecun-
iary relief. Sometimes called aid, and bene- Hence, a devise to be applied " solely for benevo-
lent purposes," in the discretion of a trustee, is not a
ficial, society.
charity, . . But "benevolent," when coupled with
Sick benefits. Aid, usually money, given to a per- " charitable " or an equivalent word, or used in such
son during the period of his illness or disability, on connection or applied to such public institutions or
account of membership or insm'ance in a benefit or corporations as to manifest an intent to make it syn-
relief society.* onymous with "charitable," has been given effect
The recognition of a person as a member up to a according to that intent.'*
short time before his death, in connection with the "Benevolence" is wider than "charity," in legal
presumption that persons follow such regulations as signification, but its meaning may be narrowed by the
they are ,under, is sufficient evidence of good standing
to maintain an action upon a certificate.' context.,'
"Benevolent," applied to objects or purposes, may
When a benefit certificate takes effect, so far as to refer to such as are charitable or not charitable, in the
vest an absolute right to the benefit money, at the legal sense. Acts of kindness, friendship, forethought,
death of the party to whom it issued, the same rule or good wiU, might properly be described as benevo-
should hold which prevaUs as to wills and life policies lent. Ithas therefore been held that gifts to trustees
of insurance, viz., that an express designation of the to be applied for "benevolent purposes " at their dis,
person is conclusive.^ cretion, or to such "benevolent purposes" as they
could agree upon, do not create a public charity. . .
1 [4 Bl. Com. 107; 3 Kent, 494. Where the word is used in connection with other
» 1 Story, Eq. 12 ed. § 321, note. words explanatory of its meaning, and indicating the
' Cowell V. Colorado Springs Co., 100 TT. S. 55 (1879); intent of the donor to limit it to purposes strictlj
Jones V. Guaranty, &c. Co., 101 id. 628 (1879); Peoples' charitable, it has been held to be equivalent to " char-
Bank v. National Bank, ib. 181 (1879).
* United States v. Hodson, 10 Wall, 395 (1870). See Association; Charity.
» Daniels v. Teamey, 102 U. S. 421 (1880) ; 106 id. 481. itable," *
• See Poultney v. Bachman, 31 Hun, 49, 62-55 (1883), ■' Splawn V. Chew, 60 Tex. 634 (1883); 67 id.
cases. also, generaUy, 22 Cent. Law J. 662-64 472. See
(1886), cases; ib.
'Lazensky u. Knights of Honor, 31 F. E. 592 (1887); 277, cases.
Knights of Honor v. Johnson, 78 Ind, 113 (1881). ' Chamberlain v. Steams, 111 Mass. 268-69
(1873)
8 Thomas v. Leake, 67 Tex. 470 (1887), WUlie, C. J. As
to beneficiaries generally, see Lamont v. Grand Lodge, = De Camp
cases. J
Gray, v. Dobbins. '
, 31 N. '
J. E. 695 (1879), Beasley,
31 F. E. 177, 181 (1887), cases. As to designation of C. J.; Thomson t>. Norris, 20 id. 523 (1869), cases- 60
beneficiary, see Hotel-Men's Association v. Brown, 32 N. H, 533.
id. 11 (1887). * Suter ,;. HiUiard, 132 Mass. 418-14 (1882), cases,
En-
 117
BENZINE BETWEEN

BENZINE. See Oil. A bet on an election means on the result of the

election.' See Game, 2; Waqeb.
BEQUEATH. A gift of personal prop- BETTER. See Equity.
erty by will.
Bequest. A gift of personalty by will ; BETTERMENT. 1. An improvement -^
to realty which is more extensive than ordi-
the clause in the instrument making the gift;
the thing itself so given. naiy repair, and increases, in a substantial
When the context requires it " bequeath " will be degree, the value of the property ; meliora- /
construed "devise" — which is o£ realty.* See De- tion. '
tise; Leqact; Will, a. Betterment Acts. Statutes which secure
BEST. See Bid ; Evidence ; Knowledge. to a purchaser of land for valuable consider-
A testator made a bequest to his son-in-law in trust ation, without notice of an infirmity in the
" to iMiy the income or such portion as he may con- title, an interest in the land equal to the
sider best and at such time as he sees fit " to testator's
granddaughter, an infant, during her life. Held, that value of the improvements or melioration he
the intent of the testator was to consider the welfare may have made.
of the granddaughter; that the word "best" had The rule of the common law is that the owner of
more reference to withholding income than paying it; land shall not pay an intruder or occupant for unau-
that the trustee was to pay only as he thought best to thorized improvements. This induces diligence in the
pay.3 See Discretion, 2; If. examination of titles, and prevents wrongful appropri-
BESTIALITY. See Sodomy. ations. Chancery, borrowing from the civil law, made
the first innovation upon the doctrine; and in time
BET.3 A wager, — the act or the amount.
held that when a bona fide possessor made meliora-
"Bet" and "wager" are synonymous tions in good faith, under an honest belief of o^vner-
* terms, applied to the contract of betting and ship, and the real owner for any reason went into
■wagering and to the thing or sum bet or equity, the court, applying the maxim that he who
seeks equity must do equity, and adopting the civil
w^agered. They may be laid upon games law rule of natural equity, compelled the owner to ;.
and upon things that are not games.* pay for such industrial accessions as were perma- ;
A " bet " or wager is ordinarily an agree- nently beneficial.to the estate.*
ment between two or more that a sum of The occupant must have peaceable possession,
money or some valuable thing, in contribut- imder color of title, and honestly believe that he is the
owner of the land. Any instrument having a grantor
ing which all agreeing take part, shall be-
and grantee, containing a description of the land, and
come the property of one or some of them on apt words for their conveyance, gives color of title.
the happening in the future of an event Actual notice o£ an adverse title is proof of the ab-
at present uncertain ; while the " stake " is sence of good faith.'
the money or other thing thtis put upon the 3. The additional value which a piece of
chance. Each party gets a chance of gain property acquires from its. proximity to a
from others, and takes a risk of loss of his public improvement.* See Compensation, 3.
own to them.5 BETWEEN. Often synonymous with
"Illegal gaming imphes gain and loss between the "among," especially when employed to con-
parties by betting, such as would excite a spirit of
vey the idea of division or separate owner-
cupidity." A "purse," " prize," or "premium " is or-
dinarily some valuable thing offered by a person for ship of property held in common.'
It is as appropriate to say that property is to be
the doing of something by others, into the strife for
which he does not enter. He has not a chance of divided "between" as "among " A, B, and C
gaining the thing offered; if he abide by his offer, that 1 Commonwealth v, Avery, 14 Bush, 683 (1879).
he must give it over to some of those contending for it ' Parsons v. Moses, 10 Iowa, 444^6 (1864), cases, Dil-
is reasonably certain. "Bet or stakes" and "bet or lon, J.
wager " have substantially the same meaning.' J Beard «. Dansby, 48 Ark. 186-87 (1886), cases. See
generally Bright v. Boyd, 1 Story, 49J-98 (1841): 2 id.
dicott. J. ; Saltonstall v. Sanders, 11 Allen, 470 (1865), 607 (1843); Griswold v. Bragg, 18 Blatch. 200 (1880);
Gray, J.; Jones v. Habersham, 107 U. S. 185 (1888); Wieeler v, Merriman, 30 Minn. 376 (1883); EfBnger v.
Adye v. Smith, 44 Conn. 60 (1876). Hall, 81 Va. 102-6 (1885), cases; Green v. Biddle, 8
1 Evans v. Price, 118 111. 599 (1886); Ladd v. Harvey, Wheat. 79 (1833); Jackson v. Loomis, (N. Y.), 15 Am.
21 N. H. 538 (1850); Lasher v. Lasljer, 13 Barb. 109-10 Dec. 347, cases; 19 Blatch. 04; 48 Conn. 581; 11 Me. 482;
(1852); Laing v. Barbour, 119 Mass. 525 (1876), cases.
74 id. 515; 13 Ohio, 308; 14 S. C. 338; 17 Vt. 109; 3 Pom-
2 Bartlett v. Slater, 53 Conn. 110 (1886).
eroy, Eq. § 1241, cases; 3 Story, Ea. §§ 799, 1237-58,
3 For abet, to maintain. cases; 1 Wash. E. P. 139, cases.
* Woodcock V. McQueen, 11 Ind. 16 (1858), Perkins, J. ' See Foster v. Commissioners, 113 Mass. 835 (1882).
e Harris v. White, 81 N. Y. 639 (1880), Folger, C. J.;
» Myres v. Myres, 23 How. Pr. 415-16 (1862). See also
Commonwealth v. Wright, 137 Mass. 251 (1884). Ward V. Tomkins, 30 N. J. E. 4 (1878); 20 Conn. 122.
 BEYOND 118
BID

When "between" and " among " follow the verb An act which forbids the use of bicycles on a cer-
*' divide" their general signification is very similar, tain road, unless permitted by the superintendent of
and in popular use they are synonymous — though the road, is not unconstitutional. ^
" among " denotes a collection and is never followed In the absence of legislative prohibition, riders of
by two of any sort, while " between," may be followed bicycles would seem to have the same rights on high-
by any plural mmiber, and seems to refer to, the in- ways as those using any other vehicle.'
dividuals ofa class rather than to the class itself.' BID. In its most comprehensive sense,
" Between " persons implies, strictly speaking, be- to make an offer ; in its more ordinary ac-
tween two parties to a division ; but the reference may
be to more than two persons.'* ceptation, tomake an offer at an auction ; '
By the language "equally divided between my the offer itself.
grandchildren," a testator may intend division be- Also, the price at which a contractor will
tween two families.' furnish
thing. material or do some other particular
Between two places excludes the terminii.*
Between two days excludes both days.^ See Day.
"Between eleven o'clock P. M. and five o'clock Bid off. One is said to bid off a thing
A. M." covers the period intervening between eleven when he bids at an auction and the thing is
o'clock at night and five o'clock in the morning of the knocked down to him in immediate succes-
succeeding day.'
BEYOND. See Sea. sion to his bid and as a consequence of it.'
Bidder. One who offers to give a desig-
BI. The Latin prefix, put for dui, twice,
nated price for propertSy on sale at an auction.
or from bis, twice, two.
BIAS.' Inclination of mind toward a By-bidding. Fictitious bidding; run-
ning up the price of an article, not to save it
particular object ; an influential power which
from sacrifice, but to mislead bona fide bid-
sways the judgment.^ ders; puffing.
In a juror, being under an influence which
Upset bid. A more liberal bid on prop-
BO sways his mind to one side as to prevent his
erty sold at public sale, offered to the court
deciding the cause according to the evidence.^ having jurisdiction in the proceeding, in
Not synonymous with prejudioe.s
May show bias in a witness by relationship, sym-
order that the sale already made may be set
pathy, hostility, or prejudice." See Impartial, 1; aside, or confirmation thereof withheld, and
Prejudice. that the new bid may be entertained, perhaps
BIBLE. See Blasphemy; Christianity; along with other bids. Whence upset-hidder,
Hearsay, 4. for the person who makes such offer.* (Local.)
The article offered for sale is to be delivered to the
BICYCLE. Held to be a "carriage,"
within a statute forbidding fast driving. m highest real bidder. If a minimum price is fixed notice
thereof must be given. By-bidding, since it deceives
Not a "carriage" liable to toll, imder the English
Turnpike Act of 1883." and involves falsehood, is a fraud.' An agreement
A tricycle capable of being propelled by the feet, not to bid, that is, to prevent competition and possibly
or by steajn as an auxiliary, or alone, was held to be to cause a sacrifice of the property, is void, as against
public policy. On a breach of a contract to pay a
a "locomotive," within the English Highways and bid the measure of damages is the amount which
Locomotive Act of 1378. >=
The park commissioners of New York, in their dis- would have been received if the contract had been
cretion, may prohibit bicycles in the parks of that city.
It was formerly the rule in England, in chancery
An ordinance to that effect may be a " regulation " kept."
intended by the statute creating their oflaoe.i' sales, that, until confirmation of the master's report,
the bidding would be " opened " upon a mere offer to
1 Senger v. Sanger's Executor, 81 Va. 698 (1886), Rich- advance the price ten per centum. But Lord Eldon
ardson, J. expressed dissatisfaction with this practice, as tend-
2 Haskell v. Sargent, 1J3 Mass. 343 (1873).
s Stoutenburgh v. Moore, 37 N. J. E. 69 (1883). > State V. Yopp, 97 N. C. 477 (1887).
« Revere v. Leonard, 1 Mass. *93 (1804). 2 Cook, Highways. See 69 Law Times, 28 (1880); 25
s Bunco V. Reed, 16 Barb. 363 (1833); 5 Mete. 640. Solio. J. & R. 4 (1880) — commenting on TayloVs and
« Hedderich v. State, 101 Ind. S70 (1884). Williams' cases, anie — notes 10, 11.
' F. biais a slant, slope: inclination to a side. L. L. = Eppes.u Mississippi, &c. E. Co., 35 Ala. 56 (1859),
bifacem, one who looks sideways. — Skeat. Walker, 0. J.
» [Willis V. State, 12 Ga. 449-50 (1853). < See Yost v. Porter, 80 Va. 855 (1885).
0 1 Whart. Ev. §§ 408, 566. 'Veazie tj. Williams, 8 How. 151-53 (1860), cases; 2
1" Taylor v. Goodwin, L. E., 4Q. B. D. 328 (1879). Kent, 638.
" Williams v. Ellis, L. E., 5 Q. B. D. 176 (1880). "Wicker v. Hoppock, 6 Wall. 97-08 (1867), cases;
"Parkyns v. Priest, L. R., 7 Q. B. D. 815 (1881). James v. La Crosse, &c. E. Co., ib. 753 (1867); 4 Del.
'3 Matter of Wright, 89 Hun, 368 (1883). , Ch. 491; ICowp. 395. .
 BIGAMY 119 BIGAMY

ing to impair oonfldenoe in sales, to keep bidders from ond wife, so called, may be, for she is not a wife at
attending, and to diminisii the anioupt realized, and all ; and so, vice verm, as to the second husband, so
his views were finally adopted in the statute of 30 and
81 Viet. (1867), c. 48, § 7. . . In this country his views The first marriage may be proved by the admissions
called.'
were followed at an early day by the courts, and the of the prisoner.'*
rule has become almost universal that a sale will not In a criminal prosecution strict proof of an actual
be set aside for inadequacy of price unless the inade- marriage is necessary ; but in a civil suit an admission,
quacy be so great as to shock the conscience, or unless or reputation and cohabitation, sufBoes.'
there be additional circumstances against its fair- The act of Congress of July 1, 1862, isro-
ness; being very much the rule that always prevailed vided that every person having a husband or
in England as to setting aside a sale after a master's wife living, who married another, whether
report had been confirmed. . If the inadequacy of
price is so gross as to shock the conscience, or if, in married or single, in a Territory, or other
addition to gross inadequacy, the purchaser has been place ov^r which the United States had ex-
guilty of unfairness, or has taken any undue advan- clusive jurisdiction, was guilty of bigamy —
tage, or if the owner of the property, or the party And should be punished by a fine of not more than
interested in it, has been for any other reason misled five hundred dollars, and by imprisonment for a term
or surprised, the sale will be regarded as fraudulent of not more than five years.* That act was amended
and void, or the party injured will be permitted to by act of March 23, 1882, to read as follows:
redeem the property sold. Great inadequacy requires
Section 1. "Every person who has a husband or
only slight circumstances of unfairness in the conduct wife living who, in a Territory or other place over
of the party benefited by the sale to raise the presump- which the United States have exclusive jurisdiction,
tion of fraud. 1 hereafter mari'ies another, whether married or single,
See Adequate, 1; Auction; EESpoNsmLE; Sale, and any man who hereafter simultaneously, or on the
Judicial. same day, marries more than one woman, in a Terri-
BIGAMY.2 The offense of having two tory or other place over which the United States have
husbands or wives at the same time, the one exclusive jurisdiction, is guilty of polygamy, and shall
be punished by a fine of not more than five hundred
dejure and the other defacto.^ dollars and by imprisonment for a term of not more
Strictly speaking, bigamy means "twice than five years; but this section [R. S. § 5352, as
married," as its derivation shows. This was amended] shall not extend to any person by reason of
never an offense at common law; it was any former marriage whose husband or wife by such
made an offense by the canonists. Polygamy marriage shall have been absent for five years, and is
not known to such person to be living, and is believed
is the proper term; but, by long usage,
by such person to be dead, not to any person by rea-
bigamy has come to mean the state of a man son of any former marriage which shall have been
who has two wives, or a woman who has dissolved by a valid decree of a competent court, nor
two husbands, at the same time.* to any person by reason of any former marriage
which shall have been pronounced void by a valid
Whence bigamist (not a legal term), and
decree of a competent court, on the ground of nulhtj
bigamous.
The penalties of the offense are not incurred where of the marriage contract."
Sec. 2. If any male person cohabits with more than
one of a married couple has been absent and unheard one woman, he shall be guilty of a misdemeanor,
of for a long period, as five to seven years, and the punishable by a fine of not more than three hundred
other party marries; nor, in some States, where one is dollars, and by imprisonment for not more than six
sentenced to imprisonment for a long term, as for life ;
months, or by both.
nor where there has been a legal dissolution of the re-
Sec. 5. Cause for challenge of a jm-or is: living or
lation for a cause not involving guilt, as for a contract having lived in the practice of bigamy, polygamy, or
made within the age of consent.' unlawful cohabitation with more than one woman; or
The first wife is not admitted as a witness against believmg in the practice of bigamy, polygamy, etc.
her husband, because she is the true wife : but the sec- . . An answer shall not be given in evidence in any
1 Graffam v. Burgess, 117 U. S. 191-93 (1886), cases, criminal prosecution under the act. Declining to an-
Bradley, J. See also Vass v. Arrington, 89 N. 0. 13 swer as a witness renders the person incompetent.
<1883) — ten per cent, rule; Hansucker v. Walker, 70 Sec. 6. The President may grant amnesty for of-
Va. 763 (1882); Langyhec v. Patterson, 77 id. 470 (ISSJ); fenses committed before the passage of the act.
Sec. 7. The issue of Mormon marriages, born before
Central Pacific K. Co. v. Creed, 70 Cal. 501 (1886); Bab-
cock V. Canfield, 88 Kan. 439 (1887). '
January 1, 1883,164.ai-e legitimated.
1 4 Bl. Com.
2L. L. bigamia: bi for Gk. di, double; gamia, for
2 Miles V. United States, 103 U. S. 304, 311 (1880), cases.
Gk.s 1 gdmos, marriage. Gk. di'samia,— Skeat. » The Gaines Cases, 24 How. 605 (1860) ; 13 id. 472 ; 6 id.
Bishop, Mar. & Div. § 296.
< Gise V. Commonwealth, 81 Pa. 482, 430 (1876), Pax- 597; States. Johnson, 12 Minn. 476 (1867), cases: 93 Am.
son, J. See also 4 Bl. Com. 163; 2 Steph. Hist. Cr. L. Deo. 241, 251-57, cases; 63 Pa. 132; 14 Tex. 468, 471; 2
Eng. 430; 1 Law Quar. Eev. 474-76 (1885). Utah, 36.
" 3 Kent, 79-80; 4 Bl. Com. 164. • 12 St. L. 50: E. S. § 6353.
 BIGAMY BILL

See. 8. " No polygamist, bigamist, or any person BILATERAL. Designates a contract

cohabiting with more than one woman, and no woman
cohabiting with any of the persons described as afore- executory on both sides, as, a sale. Unilat-
said . . shall be- entitled to vote at any election 130' eral. When one party makes no express
. . or be eligible for election or appointment to or agreement, but his obligation is left to impli-
be entitled to hold any oiHce or place of public trust, cation oflaw, as, a guaranty. See Contbact,
honor, or emolument in, under, or for any such Terri- Bilateral, etc.
tory or place, or under the United States." a bilateral record is a record introduced between
Sec. 9. Declares all registration and election offices
parties and privies. A imilateral record is a record
vacant, and provides for their being filled by a board
offered to show a particular fact as a prima facie case
of five persons, appointed by the President, until pro- for or against a stranger.
vision be made by the legislative assembly of tbe Ter-
ritory as further directed by this section.^
BILGrED. That state of a ship in which
Any man is a polygamist or bigamist, water is freely admitted through holes and
within the meaning of the last recited act, breaches made in the planks of the bottom,
who having previously married one wife, still occasioned by injuries, whether the ship's
living, and having another at the time when timbers are broken or not.'
he presents himself to claim registration as a BILL.2 A statement of particulars, in
voter, still maintains that relation to a plu- writing, and more or less formal in arrange-
ment.
rality of wives, although from March 22,
1882, until the day he offers to register, he Distinctive qualifying terms are frequently omit-
ted, the relation or context indicating the sense.
may not in fact have cohabited with more Thu^*'bill," standing alone, is often used for bill of
than one woman. . . The crime, under exchange, bill in equity, bill of indictment, etc.
the acts of Congress, consists in entering into I. In Constitutional Law. A formal,
a bigamous or polygamous miarriage, and is public, written declaration of popular rights
complete when the relation begins. ^ See Re- and liberties — restrictive of governmental
ligion. power. See further Right, 3, Bill of Rights.
The offense of cohabiting with more than one II. In Legislation. The draft or form
woman, created by § 8 of the act of March 22, 1882, is of an act presented to a legislature but not
committed by a man who lives in the same house with
enacted. As, a bill of attainder, and money
two women, and eats at tbeir tables one-third of his
time, or thereabouts, and holds them out to the world, bills, qq. v.
by his language or conduct, as his wives. It is not "Act" is the appropriate term for the document
necessary that he and the women, or either of them, after it has been passed by the legislature: it is then
shall sleep together. ^ See Cohabit, 2. something more than a draft or form.s
The uniform current of authority is, that for the See Act, 3; Pass, 2; Eideb; Snake; Title, 2; Veto;
purposes of prosecution the offense of bigamy or po- Yeas and Nays.
lygamy can be committed but once prior to the time III. In Mercantile Law. A written
the prosecution is instituted.* statement of the amount or items of a de-
See further Act of March 3, 1888, under-PoLYOAMY. mand, or of the terms of , an agreement or
undertaking, particularly for the payment of
> 22 St. L. 30-32. See 116 tl. S. 66-S7; US id. 350.
2 Murphy v. Eamsey, 114 U. S. 15, 36, 41 (1885), Mat- money. ^
thews, J. Approved, 116 id. 72, infra. As, a bank-bill ; a due-bill ; a bill rendered,
s Cannon v. United States, 116 U. S. 55 (1885), Blatch- payable, or receivable ; a bill of adventure,
ford, J. Afterward, May 10, 1886, the court decided of credit, of exchange, of lading, of parcels,
that it had no jurisdiction under the writ of error in
of sale, of sight ; a bill of health, of mortality ;
the case, as see 118 U. S. 854-55.
*Mxp. Snow, 120 U. S. 274, 281-86 (1887), cases, Blatch-
a bill obligatory or penal, or single. As to
ford, J. Snow was convicted of polygamy upon three which see the descriptive or qualifying word.
indictments, exactly alike except that they covered Bill; bill obligatory; bill penal; bill
different periods of time, and three sentences were single. A bond without a condition. An
imposed. He complied with the first sentence — paid instrument acknowledging indebtedness, in
a fine of $300, and remained in prison six months; and
then demanded his release, claiming that his offense
had been a continuing one, and that he could not be 1 Peele v. Merchants' Ins. Co., 3 Mas, 39 (1828), Story, J.
punished more than once for it. The Supreme Court " L. L. billa, a writing : bulla, a papal bill ; originally,
held that under the theory of the lower court Snow a leaden seal; — Skeat.
might have been punished under an indictment en- s [Southwark Bank v. Commonwealth, 26 Pa. 450
tered every week during the continuance of the polyg- (1856), Lewis, J. ; 4 Wall. 387.
amous relation. * Abbott's Law Diet.
 121
BILL BILL

a certain sum, to be paid on a day cer- A bill in equity corresponds to a declaration at law.
Its parts are: 1, the address to the court; 3, the names
tain, i
Differs from a promissory note in having a seal of the parties ; 3, the facts of complainant's case— the
stating part; 4, a general charge of improper combi-
afflxed; yet, by the custom of merchants, binds with-
out seal, witness, or delivery. It is subject to de- nation —the clause of confederation ; 5, the pretenses,
falcation and set-off,^ or excuses respondent may have to offer in defense —
A "bill" is a common engagement for money, the charging part; 6, allegations that the respondent's
given by one man to another. When with a penalty, acts are contrary to equity, and that no adequate
remedy is afforded at law — the clause of jurisdiction;
called a "penal bill;" when without a penalty, a 7, a prayer for answers to interrogations — the inter-
"single bill;" though the latter is most frequently rogating part; 8, a prayer for relief; 9, a prayer for
used. By a "bill" is ordinarily understood a single process. Parts 4, 5, and 6 are omitted, except where
bond without a condition."
fraud is to be specifically charged as an actual fact.
"Bill single," orsimply "bill," without condition or The whole is sworn to by the complainant.
penalty, was originally the plainest form. , A "bill
penal" or "penal bill" had a condition and penalty When a person has a cause which is re-
annexed. A "bill obligatory " in form was like either dressible only in equity he commences his
of these and had a seal. Bonds with conditions have suit by preferring to the court a written
superseded bills penal.
statement of his case called a "bill in chan-
Bill payable. Any demand, usually evi-
cery" or a "bill in equity," which is in the
denced by a writing, for money, subsisting nature of a petition to the court, sets forth
against a person. Bill receivable. Any the material facts, and concludes with a
such demand, with respect to the person
prayer for the appropriate relief or other
who is entitled to the money.
thing required of the court, and for the usual
"Bills receivable" are promissory notes, bills of
exchange, bonds and other evidences or securities, process against the parties, against whom the
which a merchant or trader holds, and which are relief or other thing is sought, to bring them
payable to him. 3 before the court to make answer in the
Bill rendered. A creditor's written
statement of his claim, itemized. The most general division of bills is those
premises.!
Not assented to by the debtor, as in an account which are original and those which are not
stated. The creditor may sue for a larger sum.* See original. Original bills relate to some
Account, 1.
IV. In Leqai. Procedure. A formal matter not before' litigated in the court, by
written statement of complaint to a court of the same persons standing in the same in|er-
ests. These bills may again be divided into
justioe.5 As, the original bill in common-
law practice ; a bill in chancery or equity ; a those which pray, and those which do not
bill of indictment, of information, qq. v.
Billsrelief.
pray, not ^ original are, first, such as are
Also, a written statement or record of pro-
ceedings in an action. ' As, a bill of excep- an addition to, or a continuance or a depend-
ency of, an original bill ; or, second, such as
tions, of costs, of particulars, a fee-bill,' qq. v.
Bill in chancery; bill in equity. A are brought for the purpose of cross-litiga-
statement, addressed to a chancellor or a tion, or of controverting, suspending, or
court of equity, of the facts which give rise reversing some decree or order of the court,
to a complaint, with a petition for relief. or of carrying it into execution. The first
This may be an original bill or a bill not class of bills not original furnishes the means
original, a cross-bill, a supplemental bill, of supplying the defects of a suit, of continu-
a bill for discovery, of conformity, inter- ing it, if abated, and of obtaining the benefit
of it. These means are ; by a supplemental
pleader, peace or quia timet, review, revivor,
bill; by an original bill in the nature of a
foreclosure, a creditor's bill, qq. v.
supplemental bill ; by a bill of revivor ; by an
original bill in the nature of a bill of revivor;
I Farmers', &c. Bank v. Greiner, 8 S. & E. 115, 117
(1815), Tilghman, C. J. by a bill of revivor and supplement. The
i! Tracy v. Talmage, 18 Barb. 462 (1854): Jacob's Law second class includes : a cross-bill ; a bill of
Diet. review ; a bill to impeach a decree upon the
' State V. Eobinson, 57 Md. 501 (1881): Bouvier's Law ground of fraud ; a bill to suspend the opera-
Diet.
* Williams v. Glenny, 16 N. Y. 389 (1857). ' Story, Eq. PI. § 7.
5 Abbott's Law Diet. 2 Story, Eq. PI. §§ 16, 17; 16 F. E. 731.
 BILL
133 BLACK-LISTING

tion of a decree; a bill to carry a former BILLA. L. L. A bill: an original bUl at

decree into execution; a bill partaking in law, or a bill of indictment.
some measure of one or more of both of Billa cassetur. That the bill be quashed.
these classes of bills, i A judgment, at common law, for defendant,
A cross-bill is brought by a defendant in on a plea in abatement. ' See Quash.
a suit against the plaintiff in the same suit, Billa vera. A true bill.
or against other defendants in the same suit, BILLIARDS. See Game, 3.
or against both, touching the matters in BIWD. To place under a legal obligation,
question in the original bill. It is an auxil- particularly that of a bond or covenant ; to
iary to the proceedings in the original suit, a affect with a contract or a judgment; to
dependency upon it — brings the whole dis- affect with a thing done, or with a common
pute before the court for one decree. The relation ; to obligate.
two bills constitute one suit.^ As, to bind, and to be bound or to become bound,
New and distinct matters, not embraced in the orig- by a contract made, by a judgment or decree entered
inal bill, cannot be introduced by the' cross-bill; and or rendered, by legislatiqn, by the act of a privy, a,
new parties must be introduced by amendment of the wife, a partner, or other agent, or by the declaration
of an accomplice.
bill.a
A supplemental bill is brought as an Binding. Establishing an obligation;
addition to an original bill to supply some creating a legal duty or necessity. See In-
defect in its original frame or structure, not STRUCT, 3.

the subject of amendment.^ Binding out. To obligate as an appren-

May be filed by either party to his own bill, within tice, q. V.
a reasonable time — even after decree made, when a Binding over. To obligate to appear as a
necessary party has been omitted, when fiu-ther dis- witness, or as a defendant, at the time of
covery is requisite, when some matter overloofeed
needs development, or when it is essential to bring out trial, or to keep the peace, q. v.
other matter in order to give full effect to the decree Bound. Brought under an obligation, as
entered or to be entered on the original bill. The bill by a covenant ; charged with responsibility,
is not amendable after the parties are at issue, and
as with a duty ; obligated. See Apprentice ;
witnesses ^ave been examined. An answer to the new
Bond ; Hold, 4 ; Indenture ; Obligate.
matter is prayed for.^
After hearing the proofs a bill may be so amended BIPARTITE. See Part, 1.
as to put ill issue matters in dispute and in proof, but BIRD. See Animal.
not sufficiently in issue by the original bill.* See BIRTH. See Abandon, 2 (3); Natus;
Amendment, 1. Venter.
See also Ad EQir ate; Answer, 3; Demurrer; Dismiss;
Equity; Fishing, 3; Impertinence; Multifariousness; BIS. SeeBL
Party, S; Prejudice, 2; Relief, 2; Remedy. BISSEXTILE. See Year.
Original bill. 1. An ancient mode of BITTERS. See Liquor.
commencing an action at law, particularly BLACK. See Acre; Cap; Gown; Rent.
in the court of king's bench ; sometimes BLACKLEG-. A person who gets his
termed a "plaint," and resembled the modern living by frequenting race-courses and places
" declaration." Compare Writ, Original. where games of chance are played, getting
3. In equity, a complaint relating to a, dis- thp best odds and giving the least he can,
pute not before litigated by the same persons but not necessarily by cheating. 2
in the same intei-ests. See page 131. BLACK-LISTING. See Boycotting.
True bill. See Ignokb. An act of Wisconsin, approved April 8, 1887 (Laws,
ch. 349), provides that: Any two or more employees
1 Story, Eq. PI. § 326. who shall agree, combine, and confederate together
"Story, Eq. PI. § 389; Shields v. BaiTow, 17 How. 145 for the purpose of interfering with or preventing any
(1854); Ayres v. Cai-ver, ib. 59S (1854); Cross v. De Valle, person or persons seeking employment from obtaining
1 Wall. 14 (1863) ; Exp. Montgomery, &a. R. Co., 95 U. S, such employment, either by threats, promises, or by-
225 (1877); Ayers v. Chicago, 101 id. 187 (1879); Nash- circulating or causing the circulation of a so-called
vUie, &c. R. Co. V. United States, ib. 641 (1879); First black-list, or by any means whatsoever, or for the
Nat. Bank v. Flour Mills Co., 31 F. R. 684 (1887); 2 purpose of procuring and causing the discharge of
McCrary, 177; 60 Conn. 62; 106 HI. 585; 21 W. Va. 847; 2 any employee or employees by any means whatsoever.
Daniel, Ch. 1548.
» Story, Eq. PI. § 332. 1 [3 Bl. Com. 303.
■• GrafEam v. Burgess, 117 U. S. 195 (1886), oases. s Barnett v. Allen, 3 H. & N. 379 (1858), Pollock, C. B.
 133
BLACK-MAIL BLACKSTONE

shall be deemed guilty ot a misdemeanor, and upon BLACKS. See Citizen; School, Sepa-
conviction shall be punished by imprisonment in the rate; White.
county jail for a period of not more than one month
or by a fine not less than fifty dollars, or by both.
BLACKSMITH SHOP. See Police, 2.
Is not a nuisance per se. The business may be so
BIiACK-MAIL.i 1. Rent reserved in
carried on as not to annoy persons living in the vicinity. '
work, grain, or the baser money. Opposed, See Nuisance.
white rent: rent paid in silver.^ BLACKSTONE, Sir William.
A rent in grain, cattle, money, or other Born July 10, 1723. In 1736 he entered Pembroke
thing, anciently paid to men of influence, in College, Oxford, where he continued till 1741, when he
the north of England, for protection against began to study law. In 1746, at the end of the proba-
tionary period, he was called to the bar. Down to
robbers. 8 1760 he seems to have been engaged in but two cases
By statute 43 Eliz. (1601), o. 13, for preventing rapine of importance. He passed much time in Oxford, tak-
on the northern borders, to imprison or carry away ing an active interest in the affairs of the imiversity.
any subject in order to ransom him . . or to give About 1760 he began to plan his Lectures on the
or talre any money or contribution, there called black- Laws of England. In 1763 he delivered his first course
mail, in order to secure goods from rapine, is felony at Oxford. The next year he published his Analysis
\rlthout benefit of clergy.* of the Laws of England, for the use of his numerous
2. In common parlance, extortion — the hearers. This analysis is founded on a similar work
exaction of money for the performance of a by Sir Matthew Hale.
duty, the prevention of an injury, or the ex- A "broadsheet," dated Oxford, June 23, 1753, an-
ercise of an influence.5 nouncing that the "course of lectures" would begin
Imports an unlawful service and an involuntary " in Michaelmas Term next " (November), and were
payment. Not unirequently, the money is extorted "calculated" for laymen as well as for lawyers, stated
by threats, or by operating upon the fears or the that "To this End it is proposed to lay down a general
and comprehensive Plan of the Laws of England; to
credulity, or by promises to conceal or offers to ex- deduce their History; to enforce and illustrate their
pose the weakness, the folly, or the crime of the
victim. There is moral compulsion which neither leading Rules and fundamental Principles; and to com-
necessity nor fear nor credulity can resist. The term, pare them with the Laws of Nature and of other Na-
as universally regarded, implies an unlawful act; and tions; without entering into practical Niceties, or the
though, from its indefiniteness and comprehensive- minute Distinctions of particular Cases." ^
Mr. Viner having bequeathed to the University of
ness, the offense is not classified as a distinct crime,
it is nevertheless believed to be criminal. Therefore, Oxford a sum of money and the copyright of his
Abridgment of Law, for the purpose of instituting a
to charge a man with " black-mailing " is equivalent
professorship of common law, Blackstone, on October
to charging him with a crime.* 20, 1758, was elected first Vinerian professor, and, five
Worcester says that " black-mail " originally meant
the performance of labor, the payment of copper days later, delivered his "Introductory Lecture on the
coin, or the delivery of certain things in kind, as rent; Study of Law," afterward prefixed to his Commenta-
ries. His lectures became celebrated throughout the
and that the word was contrasted with ' ' white rent,"
which was paid in silver. Spelman attributes the kingdom.
He never acquired celebrity as an advocate. In
term "black" to the color of the coin; Jamiesen to
its illegality. Dean Swift used the term to signify Tonson v. Collins (1 W. Bl. 301, 321), he made an ex-
haustive argument in favor of the common-law right
" hush money," " money extorted under the threat of
of literary property.
exposure in print for an alleged offense." Bartlett is
the first lexicographer who confines its meaning to In 1765 appeared the first volume of his commenta-
ries. The other three volumes were published during
that sense, and the use of it to this coimtry. . . The
meaning is not legally confined to extortion by threats the next four years.
In 17C6 he resigned the Vinerian professorship. In
or other morally compulsory measure. The sense in-
tended in any given case should be determined by a 1770 he was appointed a judge of the King's Bench,
receiving then the honor of knighthood; and, a few
jury." See Extobtion; Tebeatehings Letter.
months later, became a judge of the court of Common
' According to most of the authorities, mail is from Pleas. In Scott v. Shephard (3 W. Bl. 892), the " squib
the French maille, a small coin. It may come from case," wherein the difference between Uie actions of
the German mahl, tribute, or from the Gaelic, mal, a trespass and,ca,se was discussed, he dissented from the
rent. opinion ot the majority of the court. See Case, 8.
He died February 14, 1780. The notes of decisions
' See 2 Bl. Com. 43-43. which he had collected, and prepared for the press,
s See Termes de la Ley (1731).
* i Bl. Com. 244. See AU the Tear, vol. 30, p. 247. were published In two volumes, in 1781, as directed in
« Edsall 0. Brooks, 3 Eobt. 33-34 (N. Y. Super. Ct. his will, by his brother-in-law, James Clitherow, Esq.=
<1864), Monell, J. Same case, 17 Abb. Pr., o. s., 236; 28 1 Foucher v. Grass, 60 Iowa, 507 (1883).
How. Pr. 431. 2 2 Law Quar. Eev. 83 (1886) — from a copy of the
' Edsall V. Brooks, 3 Eobt. 293-95 (1865), Eobertson, "broadsheet " found in 1885, in an old book.
C. J. See 1.32 Mass. 264; 97 N. Y. 313; 13 Tex. Ap. 287. s See generally Preface to 1 W. Bl. Reports.
 BLAME 124 BLASPHEMY

American lawyers, with few exceptions, since the Powers of attorney to transfer stock are often exe-
Revolution, have drawn their first lessons in jurispru- cuted in blank, the right to fill in the name of an at-
dence from Blacbstone's Commentaries. " That work torney being implied.^
was contemporaneous with cm: Constitution, and The blanks in a warranty of attorney to confess
brought the law of England down to that day, and judgment need not be filled up. The idiom of the lau- ,
then, as now, was the authoritative text-book on its guage admits of many things being understood which
subject, familiar not only to the profession, but to all are not directly expressed. This Is eminently so with
men of the general education of the founders of our the personal pronouns."
Constitution." ^ The grantor in a deed conveying realty, signed and
Blackstpne first resdued the law of England from acknowledged, with a blank for the name of the-
chaos. He did well what Coke tried to do one hun- grantee, may by parol authorize another party to fill
dred and fifty years before ; he gave an account of the up the blank. In such case before the deed is deliv-
law as a whole, capable of being studied, not only ered to the grantee his name must be inserted by th&
without disgust, but with interest and profit. His ar- party so authorized. 8
Where a party to a negotiable instrument intrusts it
rangement ofthe subject may be defective; but a
better work of the kind has not yet been written, and, to the custody of another for use, with blanks not
with all its defects, the literary skill with which a filled, as against the rights of innocent third persons
problem of extraordinary difficulty was dealt with such instrument carries on its face implied authority
is astonishing. He knew nearly everything, relating in the receiver as agent to fill any blanks necessary to
to the subject, worth knowing.^ perfect it as an instrument; * but not to vary or alter
material terms by erasing what is written or printed
" Its institutional value, and especially its historic
value as an authentic and faithful mirror of the con- as part, nor to pervert the scope or meaning by filling
blanks with stipulations repugnant to what was clearly
dition of the English Law as the result of legislation
expressed In the instrument before it was so delivered.*
and adjudication, as it then existed, it is difficult to
overestimate." ^ A note payable to bearer and indorsed in blank is
BLAME. See Delictum ; Weong. transferable by mere delivery, and any bona fide
holder is effectually shielded from the defense of prior
BLAND'S TABLES. See Table, 4. equities between the original parties.^
BLANK.-* 1, adj. (1) Of a white color: As between original parties the act of delivering the
lacking something essential to completeness ; paper is authofity for filling blanks conformably to
not filled in or filled up with a word or their mutual understanding. If there is no express
agreement the authority is general; and the burden of
•words — names, amount, time, place, descrip-
tion, conditions, etc. : as, a blank certificate proof is on the defendant to show such agreement.'
In cases of blank indorsements possession is evi-
of stock, power of attorney, assignment, dence of title.s
warrant. When blanks material in nature are filled up after
(3) Unrestricted ; indorsee not named : as, execution, the instrument, as a deed, should be re-
an indorsement in blank or a blank indorse- executed and re-acknowledged; but failure to do so-
ment. woiild hardly defeat a vested interest.'
See Alteration, 2; Bearer; Indorsement. .
3, n. A space left in a written or printed
BLAJS"KET. See Insurance, Policy of.
paper, to be filled with words or figures in BLASPHEMY.io Denying the being or
order to complete the sense. providence of the Almighty, or contumelious
Blanks. Forms of writs, deeds, leases, reproaching of Christ ; also, profane scoffing
powers of attorney, and other instruments, at the holy scripture, or exposing it to con-
printed with spaces left for writing in names, tempt and ridicule.ii
dates, sums, places, descriptions, conditions,
"Denny u Lyon, 38 Pa. 101 (1860); German Building
and other matters peculiar to special cases. Association v. Sendmeyer, 60 id. 67 (1866).
Often spoken of as legal blanks. See Writ- = Sweesey v. Kitchen, 80 Pa. 160 (1876), Agnew, C. J.
ing. s Allen V. Withrow, 110 U. S. 128-29 (1884), cases.
■■Bank of Pittsburgh v. Neal, 33 How. 108 (1859);
' Knote V. United States, 10 Ct. CI. 399 (1874), Lor- Angle V. N. W. Mut. Life Ins. Co., 93 U. S. 338-39 331,
ing, J. 337 (1875), cases.
" 2 Steph. Hist, Cr. Law Eng. 314-15. « Goodman v. Simonds, 20 How. 360-61 (1857), oases;
3 36 Am. Law Rev. 33 (1883), J. F. Dillon. See also Michigan Bank v. Eldred, 9 Wall. 651-52 (1869), cases;
Cooley's Bl. Com. vol. 1, p. v. lOlU. S. 572; 46N. Y. 325.
See generally preface to Chitty's edition of the = City of Lexington v. Butler, 14 Wall. 295 (1871).
Commentaries; 8 Alb. Law J. 290; 13 id. 104; 1 AUi- '3 Kent, 89; Davidson v. Lanier, 4 Wall. 466 (1666),
bone. Diet. Authors; 1 Am. Jur. 116; 1 Austin, Lect. 71 ; Chase, C. J.
« 3 Kent, 90.
104 Eclectic Mag. 703; 15 Law Mag. 392; 14 Leg. Obs.
143; 51 Macm. Mag. 350; 7 Pitts. Leg. J. 106; 5 West. » 2 Pars. Contr. 563, 723.
Jur. 629. " Gk. hlas-phemein', to speak ill or evil of
* F. blanc, white. " [4 Bl. Com. 59.
 125
BLASPHEMY BLIND

Maliciously reviling God or religion.! love and reverence of God. Purposely using
An offense at common law. The reviling is an words concerning God calculated and de-
offense because it tends to corrupt the morals of the signed to impair and de^troy the reverence,
people and to destroy good order. Such offenses have
respect, and confidence due to Him, as the
always been considered independent of any religious
establishment or the rights of the church. They are intelligent creator, goyernor and judge of
treated as affecting the essential interests of civil so- the world. A willful and malicious attempt
ciety. . . The people of the State of New York, in to lessen men's rever^nce of God, by denying
common with the people of this covmtry, profess the
his existence or his attributes as an intelli-
general doctrines of Christianity, as the rule of their
faith and practice; and to scandalize the author o£ gent creator, governor and judge of men,
these doctrines is not only, in a religious point of view, and to prevent their having confidence in
extremely impious, but even in respect to the obliga- Him as such.i
tions due to society is a gross violation of decency and Blasphemous libeL The publication of
good order. The free, equal, and undisturbed enjoy-
ment of religious opinion, whatever it may be, and
writings blaspheming the Supreme Being,
free and decent discussions on any religious subject, is or turning the doctrines of the Christian re-
granted and secured; but to revile, with maliciou^j and ligion into contempt and ridicule. 2
blasphemous contempt, the religion professed by al- Does not consist in an honest denial of the
most the whole community is an abuse of that right.
Wicked and malicious words, writings and actions truths of the Christian religion, but in "a
which go to vilify t^ose gospels, continue, as at com- willful intention to pervert, insult, and mis-
mon law, to be an offense against the public peace and lead others by means of licentious and contu-
safety. They are inconsistent with the reverence due
melious abuse applied to sacred subjects." 3
to the administration of an oath, and, among other The fullest inquiry, and the freest discussion, for
evil consequences, they tend to lessen, in the public all honest and fair purposes, one of which is the dis-
mind, its religious sanction.^ covery of truth, is not prohibited. The simple and
A malicious and mischievous intention is the broad sincere avowal of a disbelief in the existence and at-
boundary between right and wrong. This is to be col- tributes of a supreme, intelligent being, upon proper
lected from the offensive levity, scurrilous and oppro- occasions, is not prevented. It is the design to calum-
brious language, and other circumstances. The species niate and disparage the Supreme Being, and to destroy
of the offense may be classed as: 1, denying the being the veneration due Him, that is intended.*
and providence of Grod; 2, contumelious reproaches of See Christianity; Profanity; Eeligion.
Jesus Christ; profane and malevolent SGofiftng at tha BLAS'riNG. See Nuisance.
scriptures, or exposing any part of them to contempt If a volimtary act, lawful in itself, naturally results
and ridicule; 3, certain immoralities tending to sub- in injury to another, the doer must pay all damages
vert all religion and morality. It is not necessary to
which are the proximate consequence of the act, re-
the exercise of liberty of conscience and to freedom of
gardless ofthe degree of care eiercised.* See Negli-
religious worship that a man should have the right gence.
publicly to vilify the religion of his neighbors and of BLIND. See Reading.
his country. It is open, public viU'flcation of the re- A blind man may make a contract or a will.
ligion of the country that is punished, not to force
The handwriting of an attesting witness who has
conscience by punishment, but to preserve the peace
by an outward respect to the religion of the country, become blind may be proved as if he were dead — he
and not as a restraint upon the liberty of conscience.^ being first produced and examined, if within the juris-
Consists in blaspheming the holy name of Whether it is negligence for a blind man to travel
diction.*
God, by denying, cursing, or contumeliously upon a highway on foot, unattended, is a question for
reproaching God, his creation, government,
or final judging of the world. 3 a jury."
' Commonwealth v. Kneeland, 20 Pick. 213, 220 (1838),
This may be done by language orally uttered, which
Shaw, C. J.
would not be a libel, but it is not the less blasphemy
2 3 Greenl. Ev. § 164.
if the same thing be done by language written, printed,
' Eegina v. Eamsay and Foote, 48 L. T. 734^0 (1883),
and published, although when in this form it also con-
cases, Coleridge, C. J., quoting Starkie. See Brad-
stitutes the offense of libel.'
laugh's Case, 4 Cr. Law Mag. 692 (1883) ; 17 Cent. Law J.
Speaking evil of the Deity with an impious 38 (1883) — Law Times (Eng.).
purpose to derogate f rooi the divine majesty, ■■ Georgetown, &c. E. Co. v. Eagles, 9 Col. 544 (1886),
and to alienate the minds of others from the cases. Eagles recovered damages for direct injury
done to the roofs of houses from' falling debris, and
1 People V. Buggies, 8 Johns. 'ggS-gS (1811), Kent, C. J. for loss of rents.
= Updegraph v. Commonwealth, 11 S. & E. 406, 408 »1 Starkie, Ev. § 341; 1 Greenl. Ev. §§ 365-67; 1
<Pa., 18a4),^Duncan, J. Whart. Ev. § 401.
' Commonwealth v. Kneeland, 20 Pick. 211-12 (Mass., • Sleeper v. Sandown, 52 N. H. 244, 250 (1872); 20 Am.
1838), Shaw, C. J. Law Eeg. 507-16 (1881), cases.
 BLOCKADE 126 BOARD

BLOCKADE. TJ^e ii;iVestment of a sea- to be descended from him or from the same
port by a competent naval force, with a view common stock. All those are of the blood of
of cutting off all coramunioation of com- an ancestor who may, in the absence of other
njerce.i and nearer heirs, take by descent from him.i
Every nation, of common right, as a municipal reg- A person is " of the blood " of another who has
ulation, may declare what places shall be ports of any, however small a portion, of the same blood de-
entry and delivery, and enforce the regulation by such rived from a common ancestor. When it is intended
means and with such penalties as it pleases. The to express any qualification, the word whole or half
term does not apply to an embargo, like that of 1808. blood is used to designate it, or the qualification is in;-
That exists only where the forces of one nation en- plied from the context or from known principles of
compass the ports of another. A blockade interrupts law. In the common law, *' blood " was used in the
trade and commimication to neutrals. ^ same sense." See Sister.
The President has a right to institute a blockade of Originally, feuds and estates descended to none not
ports in possession of persons in armed rebellion of the " blood of the first purchaser: " because what
against the government, on principles of international was given for personal service and merit ought not, it
law. Neutrals have a right to challenge the existence was held, to descend to any but heirs of the person.*
of a blockade de facto, and also the authority of the See Akcestor; ATTAiNnBR; Coksaksuinity; De-
party exercising the right to institute it.. They have scent; Privy, 2; Purchaser; Relation, 3.
a right to enter the ports of a friendly nation for pur- 2. Temper of mind ; state of the passions ;
poses of trade and commerce, but are bound to recog-
nize the rights of a belligerent engaged in actual war disposition.
to use this mode of coercion for the purpose, of sub- Cold blood. Undisturbed use of reason;
duing the enemy. 3 calm deliberation. See Cooling Time.
Simple blockade. Such blockade as BLOW HOT AND COLD. See Alle-
may be established by a naval ofiacer acting Gare, Allegans contraria, etc.
upon his own discretion or under direction BOAED. A table.
of superiors, without governmental notifica- 1. What is served on a table as food ; sup-
tion. Public blockade. Is not only es- plies for sustenance.
tablished in fact, but is notified, by the To board is to receive food as a lodger, or without
government directing it, to other govern- lodgings, for compensation.*
ments.* Boarder. If a person comes upon a spe-
In the case of a simple blockade, the captors of cial contract to board, and to sojourn at an
prize property, are bound to prove its existence at the inn, in the sense of the law, he is not a guest,
time of the capture; while in Hie case of a public but a boarder. 6
blockade, the claimanf^ are held to proof of discontin- Where the host is only an innkeeper the presump-
uance in order to protect themselves from the penal- tion is that a temporary sojourner is a guest; but
ties of attempted violation. The blockade of the rebel where he also carries on the business of keepmg
ports was of the latter sort. It is the duty of the bel- boarders, the question who is a guest and who a
ligerent government to give prompt notice of the dis- boarder is not so easily answered. The duration of
continuance ofa public blockade. If it fails to do so,
the person's stay, the price paid, the extent of the ac-
proof of discontinuance may be otherwise made; but, commodation afforded, the transient or permanent
subject to just responsibility to other nations, it must character of his residence or occupation, his knowl-
judge for itself when it can dispense with a blockade.* edge or want of Knowledge of any difference of ac-
Evidence of intent to violate a blockade may be col- commodation afforded to or price paid by boarders and
lected from bills of lading, from letters and other guests, are all to be considered.'
papers found on board the captured vessel, from acts The keeper of a boarding-house receives only such
and words of the owners or hirers of the vessel and persons as he chooses; an innkeeper must receive all
the shipper of the cargo and their agents, and from who come, unless there exists a special reason for re-
the spoliation of papers in apprehension of capture.*
No paper or oonstruotive blockade is allowed fusing entertainment.''
by international law. ^ Compare Embargo. 1 Den V. Jones, 8 N. J. L. 346 ( 2 Bl. Com.!
BLOOD. 1. Relationship ; stock ; family ; 239, 227. Story, J.
consanguinity. = Gardner v. Collins, 2 Pet. *87, *94 (
= 2 Bl. Com. 220, 56; 2 Pet. *87, *94.
To be "of the blood" of a person means * Pollock V. Landis, 36 Iowa, 632 (1873).
1 1 Kent, 146-47. = Story, Bailm. § 477 ; Berkshire Woolen Co. v. Proctor,
s United States v. The William Arthur, 3 Ware, 7 Gush. 424(1861); Johnson v. Reynolds, 3 Kan. 261 (1865).
280-81 (1861). » Hall V. Pike, 100 Mass. 497 (1868), Colt, J. See also
= Prize Cases, 3 Black, 665, 633 (1862), Grier, J. 26 Ala. 371; 33 Cal. 597; 25 Iowa, 555; 36 id. 651; 58 Me.
•The Circassian, 2 Wall. 150-51, 135 (1864), Chase, 163; 35 Wis. 118; 24 How. Pr. 62; 1 Pars. Contr. 628.
C.J.; 31W. Va. 336. ' Willard v. Eeinhardt, 2 E. D. Sm. 148 (1853) ; Cady v.
'The Peterhoff, 5 Wall. 50 (1866). McDowell, 1 Lans. 486 (1869), cases.
 BONA
BOAT 137

A keeper of boarders must take at least ordinary capacity to take, grant, etc., by a particular
care of his patron's property; an Innkeeper must
exercise the highest degree of care reasonably pos- name.i
sible. ' ' Body corporate and politic " is said, in
A boarder's goods are not now disti'ainable for rent the older books, to be the most exact expres-
due by his host.i sion for a public corporation or corporation
See fm-ther Distress; Inn; Neoessabies; Eeside. having powers of government.
Compare Gdest; Lodqer.
2. A table at which a council is held ; hence, The body politic is the " social compact by
which the whole people covenant with each
an authorized assembly. More particularly,, citizen, and each citizen with the whole
a number of persons organized to execute a people, that all shall be governed by certain
trust or to perform some other representative
or official business. laws for the common good." 2
While that compact does not confer power upon
As, a board — of aldermen,' of arbitrators," of di- the whole to control purely private rights, it author-
rectors," ofexaminers " of candidates for admission to izes laws requiring each to so act as not to injure
the bar, of examiners of patents," of health," of in- another — which is the very essence of government.*
spectors," of liquidation," of pardons," of property, See Corporation, Public.
of public works, of revisers," of supervisors, of trade, 3. The physical part or portion of a thing.
of trustees, of viewers," of visitors," poor-board, Body of a county or of a State. A
stock " and exchange " boards. ' county or a State considered in its territorial
BOAT. See Vessel.
BODY. Compare COEPtrs. entirety, as distinguished from a portion of
1. The physical person. The natural body the territory, and from the legal corporation.
Jurisdiction in admiralty extends over a locality
or such as is formed by the laws of God, as within the body of a State connecting with navigable
distinguished from an artificial body or such waters although not affected by the ebb and flow of
as is devised by human laws.^ the tide.* See County.
In an indictment for murder, the trunk, in distinc- Body of an instrument. The substan-
tion from the head and limbs.* tial operative part; the essential provisions:
See Arrest, 3; Mayhem; Seourity, Personal. as, the body of a contract, note, statute, will.
Heir or issue of the body. See Heib ; See Title, 2.
ISSTTE, 5; Tail. 4. A number of particulars taken together ;
Body-lifting or snatching. See BtrELiL. a systematic collection : as, a body of laws.
2. A number of individuals considered col-
BONA. L. 1, adj. Good: a .feminine
lectively, usually organized for a common form of bonus, q. v.
purpose : as, a legislative body.
2, n. Goods, property: personalty, mov-
An artificial body or that devised by hu-
ables, chattels; assets.
man laws.5 Literally, valuables: the plural of bonum, a thing
An artificial body can do only what is authorized of value. Fr. Mens.
by its charter or by law; & natural person or body, Bona inunotailia. Immovables.
whatever is not forbidden by law.*
Bona mobilia. Movables.
Body corporate or corporate body.
An artificial body ; a corporation, q. v. Bona notabilia. Property of sufficient
value to be noted in an account.*
Body politic. The governmental, sover- Debts evidenced by promissory notes are bona no-
eign power : a cjty or a State. tabilia at the domioil of the debtor.'
A body to take in succession, framed as to Bona parapherna, or paraphernalia.
its capacity by policy, and, therefore, called Goods over and above dower. See Paea-
by Littleton a body politic ; and it is termed PHBENALIA.
a corporation or body politic, because the
persons are made into a body, and are of • Lord Coke, quoted in People v. Morris, 13 Wend.
334 (1886): Vin. Abr. Corp. (A, 2).
lEiddle !». Welden, 5 Whart. 9, 14 (1839); Stone v. " Constitution of Massachusetts.
Matthews, 7 Hill, 428 (1844). »Munn V. Illinois, 94 U. S. 124 (1876), Waite, C. J.;
" Which last word see. 1 Bl. Com. 467.
s [1 Bl. Com. 467. 'Genesee Chief, 12 How. 443 (1851); 1 Black, 580;
« Sanchez v. People, 22 N. T. 149 (1860). 7 Wall. 637.
» 1 Bl. Com. 467. ' See 2 Bl. Com. 609; 74 Me. 89.
' Paul V. Virginia, 8 Wall. 177 (1868); Baltimore, &o. • Moore v. Jordan, 36 Kan. 276 (1887), cases; Wyman
B. Co. V. Harris, 18 id. 81 (1870). V. Halstead, 109 U. S. 654 (1884), cases.
 BOND 128
BOND

Bona .peritura. Perishable property. self, his heirs, executors,%nd administrators,

See Perishable.
to pay a certain sum of money to another at
Bona vacantia. Unclaimed property, i
a day appointed, i See Oblige.
Bona waviata. Property thrown away. If that be all, the bond is '' single " [or " com-
See "Waif. mon "] ; but there is generally a condition added that
De bonis. As to goods ; concerning prop- if the obligor does a particular act the obligation shall
be void, or else shall remain in full force: as, pay rent,
erty or assets.
perform a covenant, or repay the principal of a sum
De bonis asportatis. See Aspoktarb. borrowed, with iiiterest, which principal is usually
De bonis non. See Administer, 4. one-half of a specified penal sum. In case this condi-
tion is not performed the bond becomes forfeited, or
De bonis propriis. Out of his own prop- " absolute," at law, and charges the obligor^ while
erty.
Said of a judgment rendered against an living, and, after his death, descends upon his heir.'
A deed or obligatory instrument, in writ-
executor or administrator, which is to be sat- ing, whereby one binds himself to another to
isfied out of his property ; as, when he has
pay a sum of money or to do some other act.2
wasted the assets or falsely pleaded "no as- Contains an obligation with a penalty, and a condi-
tion which expressly mentions what is to be done and
sets."
De bonis testatoris. Out of the property the time within which it must be done.'
of the testator. At common law, and at the pi-esent time, imports a
Describes a judgment rendered against an sealed instrument.'
Bonds are either negotiable or non-negotiable.
executor, which is to be satisfied out of the The former pass ownership by mere delivery; the
estate of the decedent. latter, by written transfer, duly signed, sealed, and,
Another form of judgment is de bonis tes- perhaps, attested.
Bond-book. A book in which original,
tatoris cum (or quando) acciderint: out of
the assets of the testator when they shall perhaps official, bonds are executed or pre-
have come to hand. served.
Still another form is de bonis testatoris sii Bondsman. One who by a sealed instru-
ment engages that if another person (the
€t non si, de bonis propriis : out of the assets
of the testator if (there are any), and if not, principal) fails to do a specified thing he will
out of his own property. pay a certain sum of money ; a surety, q. v.
Even" it it happens that the executor has reoeiTed Counter-bond. A bond given in a judi-
assets, still the judgment should be against him, in his cial proceeding in opposition to another bond
representative character, to be levied out of the assets previously furnished by an adversary.
in his hands, when no devastavit is averi'ed and Thus, in replevin, the plaintiff may give a bond for
proved, unless it appears that no such assets can be the protection of the officer in taking the property
found; in which event the judgment may, if so or- and the defendant execute a. counter-bond for hold-
dered, be levied out of his own proper goods.'-' ing it.
Nulla bona. No goods ; no property. Forthcoming bond. Security that prop-
The return to an execution when no prop- erty levied upon will be produced when
erty isfound on which to make a levy ; also, wanted. See further Forthcoming.
the plea by a garnishee that he has in his pos- Income bonds. Corporate "income
session nothing belonging to or no money bonds " are bonds payable out of the net in-
due to the debtor. come of the corporation by which they are
BOND. That which binds; any instru- issued.
Such bonds may be negotiable or unnegotiable.
ment in writing that legally' binds a party to They may be payable only out of the net income, or
do a certain thing. "Bond," "obligation," unconditionally. They may bear a fixed rate of inter-,
and "instrument in writing " are sometimes est, or be graduated by the amount of net earnings, or
used as convertible terms.' at a certain per centum thereof; and they may or may
A deed whereby the obligor obliges him- not have interest-coupons attached.'

1 See 1 Bl. Com. 298. 1 3 Bl. Com. 340, 456.

2 Smith V. Chapman, 1 U. S. 43 (1876), cases; Mc- = Boyd V. Boyd, 2 Nott & McC. *126 (S. C, 1819),
Laughlin v. Winner, Wis. 128-29 (1885), cases; Gantt, J.
»Koshkonong v. Burton, 104 U. S. 673 (1881), Har-
29 Minn. 296.' lan, J.
3 [Courand v. VoUmer, 31 Tex. 401 (1868), Morrill,
C. J. Compare 108 0. S. 189; 110 id. 739. * See 25 Am. Law Reg. 563-61 (1886), cases.
 BOND 139 BOND

Official bond. An obligation with sure- If any essential proceeding, prescribed by law
be
dispensed with, the bonds wUl be invalid in the
ties given by a public oflScer as security for hands
of a person not a bona fide purchaser. U a statute
the faithful discharge of the duties of his is
referred to on the face of the bond, a dealer is
ofla.ce. See Officer. posed toknow all of its requirements, i
sup-

Public bond. The obligation of a nation, When the purchaser has a certificate of a fact he
need not inquire whether the fact is as certified."
State, or public corporation, to pay money at A recital of circumstances which brmg it within
or within a specified time ; municipal, State, the power of the proper authorities to issue the bonds
or government bonds. estops denial of the truth of the circumstances. = The
Holders of government bonds must be presumed to statute must confer power to issue the bonds,
in ex-
have knowledge of the laws by authority of which press terms or by reasonable implication .* The holder
they were created and put into circulation, and of all is chargeable with notice of the statutory provision
s
lawful acts done by government officers under these and of recitals in the bond.'
laws. The obUgations of the United States under the The corporation acts through its agents, and when-
five-twenty bonds, consols of 1865, are governed by the ever they have power to decide that a condition prece-
law-merchant regulating negotiable securities, modi- dent has been met (as that the required portion of the
fied only, if at all, by the laws authorizing their issue. ^ voters of a town have petitioned for a subscription
m
Reftindlng bond. An obligation to pay aid of a railroad), their determination of that fact, or
their recital of that determination in a series of bonds
back money in the event of it appearing that
subsequently issued and held by bona fide purchasers,
the money should not have been paid. is binding upon the corporation. The recital is a de-
As, a bond to return the whole or a part of a legacy
should the assets of the estate be foimd insufficient to cision of the fact by the appropriate tribunal; and
proof that such recital is incorrect is no defense. But
Pfty all demands upon it. v
there is no recital the question is open."
Other terms descriptive of bonds are : where The Supreme Court of the United States has uni-
administration, appeal, arbitration, bail, bot- formly held that where a statute confers power upon
a municipal corporation, after the performance of
tomry, distiller's, duty, estrepenient, injunc- certain precedent conditions, to execute bonds in aid
tion, joint or joint and several, judgment,
of the construction of a railroad, or for other like pur-
post-obit, replevin, respondentia, railway
aid, qq. v. pose, and "imposes upon certain officers — invested with
authority to determine whether such conditions have
In an action of debt upon a non-negotiable bond, the been performed — the responsibilit.y of issuing them
demand is for the penalty. The condition is no part when such conditions have been complied with, re-
of the obligation. A judgment tor the penalty will be citals by such officers that the bonds have been issued
released on perfonnance of the condition.*
See Obligation, 3, 4; Kecognizanob; Condition; " in pursuance of," or " in conformity with," or " by
virtue of," or " by authority of," the statute, import,
Date; Facb, 1; Faithbtdlly; Holder; Mortgage; in favor of bona fide purchasers for value, full com-
Party, 2; Penalty; Seal, 1; Surety. pliance with the statute, and preclude inquiry as to
School-distriot, city, county. State, railway whether the precedent conditions had been performed
aid, and other corporation bonds, payable to before the bonds had issued. But in all such cases the
bearer, have the qualities of negotiable instruments. recitals have imported a compliance, in all substantial
Therein depends their value, mainly." They are the respects, with the statute giving authority to issue the
representatives of money because issued in negotiable bonds. Sound public policy forbids enlarging or ex-
form.* tending the rule. VSTiere the holder relies for pro-
The expectation being that they will be put upon tection upon mere recitals, in tjrder to estop the
distant marlcets, the purchaser is assured that condi- corporation from showing that the bonds were issued
tions precedent to their lawful issue have been com- in violation or without authority of law, the recitals
plied with. He is bound to know the law which confers
should be clear and unambiguous.'
the power to issue the bonds on the specified contin-
gency; but that that contingency has happened is a id. 616 (1884); Dixon County u. Field, 111 id. 93-94(1883),
question of fact not for him to decide.* cases.
■ McClure v. Township of Oxford, 94 U. S. 432 (1876).
> Morgan v. United States, 113 U. S. 476, 490 (1885), "Menasha v. Hazard, 102 U. S. 95 (1880); Sherman
Umitmg Texas v. White, 7 Wall. 700 (1868). County V. Simons, 109 id. 735 (1884), cases.
> Fami v. Tesson, 1 Black, 314 (1861); 2 Bl. Com. 341. 'Buchanan v. Litchfield, 102 U. S. 290 (1880), cases;
> Mercer County v. Hacket, 1 Wall. 95 (1863), Grier, J. ; Louisiana v. Wood, ib. 294 (1880); 3 McCrary, 35.
Commissioners of Knox County v. Aspinwall, 21 How. < Wells V. Supervisors, 102 U. S. 625 (1880).
539 (18S8), Nelson, J. ; Pompton v. Cooper Union, 101 » Walnut V. Wade, 103 U. S. 695 (1880), cases.
U. S. 204 (1879); Wadsworth v. Supervisors, 102 id. 634 "Commissioners v. Aspinwall, Pompton v. Cooper
(1880); 19 Blatch. 371. ' Union, ante; Bissell u. Jeffersonville, 24 How. 287
< Bailey v. N. Y. Central B. Co., 22 Wall. .636 (1874). (1860); St. Joseph Township v. Eogers, 16 Wall. 6.")9-66
"Town of Coloma v. Eaves, 92 U. S. 487, 490, 486 (1872), cases; Marsh v. Fulton County, 10 id. 681 (1870).
(1875), cases. Strong, J. ; Pana v. Bowler, 107 id. 639 ' School District (Iowa) v. Stone, 106 U. S, 187 (1882),
(1882); North. Bank of Toledo «. Porter Township, 110 Harlan, J. ; Pana v. Bowler, 107 id. 639-40 (
(9)
 BONE 130
BOOK

A municipal corporation without legislative author- which assumes the distinctness of a contract for the
ity cannot issue bonds in aid of any extraneous object.
payment of additional interest as a bonus.''
Every person at his peril must talce notice of the terms BOOK. Any literary composition which
of tlie law by which it is claimed the power to issue
bonds is conferred. The particular law forms a part is printed, or printed and bound into a vol-
ume.
of the bonds, as if incorporated in them. The holder
is chargeable with notice of all statutory provisions.' 1. In copyright law, the form of the pub-
Unlike business, the powers of municipal, corpora- lication is not material — the term may in-
tions, unless otherwise directed by express or implied clude a single sheet.
grant, are limited to such as are governmental or ad- So held in 1809, under the statute of 8 Anne (1710),
ministrative, tosuch as are necessary to conserve the
§ 1 ; " and so held ever since. =
purposes of their organism. ^
A purchaser takes the risk of the genuineness of an
Under the copyright act of March 3, 1865,
official signature. This-includes the official character 5) 4, book includes every volume and part of
of him who makes the signature.^ a volume, together with all maps, prints, or
A statute which authorizes a town to contract a other engravings belonging thereto, with a
debt payable in money implies the duty to levy taxes
copy of any subsequent edition published
to pay the debt, unless some other source of payment
is provided. If there is no power in the legislature to with additions. <
authorize such levy, the statute and forms of con- A single sheet of music has been held to be a book ; '
tract based thereon are void.* so, a diagram of patterns; ' but not a mere label," nor
See Aid, 1, Municipal; Coupon; Stock, 3 (3); Tax, 2. a prices-current." The test is the subject-matter, not
BONE-BLACK. See Mantjfacttjre. the size, form, or shape."* "
Although the legal definition of the word may be
BONUS. 1. Lat. Good.
more extensive than that given by lexicographers, in-
Bona fldes. Good faith. See Fides. cluding asheet as well as a volume, yet it necessarily *
Boni judieis. See Judex, 3, Boni, etc. conveys the idea of thought or conceptions clothed in
language or in musical characters, written, printed,
2. Eng. (1) Not a gift or gratuity, but a
or published. Its identity does not consist merely in
sum paid for services, or upon a considera- ideas, knowledge or information communicated, but
tion in addition to or in excess of that which in thte same conceptions clothed in the same words,
would ordinarily be given.5 making itthe same composition. A " copy " of a book
A State may exact a bonus for the grant of a fran- must, therefore, be a transcript of the language in
chise, payable in advance or in futuro (as, one-fifth which the conceptions of the author are clothed; of
of the fare pa^d by passengers to a railroad company), something printed and 'embodied in a tangible shape.'
although it affects the charge which the donee of the See Chart; Coptbi&ht; Print.
franchise will have to exact. Such bonus differs in
2. In post-office law, a pamphlet of twenty-
principle from a tax on transportation between States, four pages, consisting of a sheet and a half
which is an interference and regulation of commerce.'
secured together by stitching, with a cover of
(2) A premium paid for the use of money
beyond the legal rate of interest. four pages and a title-page, may be described
Although one portion of the sum be called interest as a book.8 See Mail, 2.
and another portion a bonus, the contract is still usu- Book-aceount. An account evidenced
rious.^ by one or more books regularly kept in the
Usury laws cannot be evaded by an understanding particular business or calling.
1 National Bank of the Republic v. City of St. Joseph, Book of accoTints; or acoount-book.
31 F. E. 219 (1887), oases, Wallace, J. A book in which are entered the transactions
" Holmes v. City of Shreveport, 31 F. E. 181 (1887)
Boarman, J. of the owner's business ; a creditor's book of
entries, exhibiting, in detail, the transactions
'Anthony v. County of Jasper, 101 U. S. 699 (1879),
Waite, C. J. had with a person alleged to be his debtor.
* Loan Association v. Topfeka, 20 Wall. 658-67 (1874),
cases. Miller, J. ; Parkersburg v. Brown, 106 U. S. 600 ' 3 Pars. Gontr. 113-14; 17 Cent. L. J. 102-5 (1883), oases.
(1882). See generally Phelps v. tewiston, 15 Blatch. » Clementi u. Golding, 2 Campb. 32 (1809), Ellen-
151-53 (t8T8); Smith v. Ontario, ib. 269 (1878); Stewart v. borough, C. J. See 11 East, 244.
Lansing, ib. S87 (1878); Commonwealth ex rel. Whelen " Druiy «, Ewing, IBond, 540, 546 (1862), Leavitt, J.
V. Httsburgh, 88 Pa. 66, 81 (1878); Pierce, Railroads, •13 St. L. 540; Lawrence v. Dana, 4 Cliff. 62 (1869),
Clifford, J.
87-109, cases; 26 Am. Law Eeg. 209-22, 608-20 (1878),
cases. ' Coffeen v. Brunton, 4 McLean, 516 (1849).
' Kenioott u. The Supervisors, 16 Wall. 471 (1872), • Clayton v. Stone, 2 Paine, 382 (1835?).
Hunt, J. ' Stowe V. Thomas, 2 Wall. Jr. 605 (1863) Grier J •
• Baltimore & Ohio E. Co. v. Maryland, 21 Wall. 473,
457 (1874), Bradley, J. See 3 How. 145-46. 2 Bl. Com. States
" United 40 6.
v. Bennett, ' "
16 Blatch. 351 (1879) See
' Mutual Sav. Bank v. Wilcox, 24 Conn. '153 (1865). R. S. § .3893.
 BOOK 131 BOROUGH

Action of book-account. A remedy for col- more satisfactory evidence, they should not be re-
ceived. Now that the parties are witnesses, care is to
_ lecting a balance due upon such dealings as be taken not to enlarge the ruje. In several States the
are proper matters of book-account ; an action account is not to exceed a sum specified. While there
of book-debt. should be some limit to the amount, much more de-
An accouni-book, regularly kept, may be received pends upon the nature of the item, and upon the evi-
as evidence. And book-accounts are assets.' But a dence, outside of the book, which natm-ally exists to
tally, a board, a slate, or loose sheets of paper, can prove the item. The charges should be reasonably
hardly be said to constitute a book of accounts." Yet specific. Lumping charges are not admissible; as,
there are not a few decisions to the effect that an ac- entries like these: "B. Corr, Dr. July 13, 1880, To re-
count need not be kept in a bound volume.^ pairing brick machine, $1,932; " " 190 days' work; "
Book-entries. Particulars of a transac- " seven gold watches, $308 ; " " 13 dollars for medicine
tion recorded in a book of accounts. and attendance on one of the general's daughters, in
curing the whooping cough." *
Book of original entries. A book exhibit-
ing the first or original charges made under The books of a corporation are public as to its mem-
bers, who for a proper purpose may examine them.
a contract concerning merchandise, work and Inspection of the books of a public office is permitted
labor done, or services rendered. to any one interested in them, but not, if liable to
To be admissible in evidence, the entries must be affect public interests injuriously; of this the head of
contemporaneous with the facts to which they relate; the department is to judge. Mandamus is the remedy
they must be made by a person having personal knowl- by which to obtain an inspection and copies of such
edge of the facts; and they must be corroborated by books, in which the petitioner has an interest.* See
his testimony, it he is living and accessible, or by proof Produce, 1.
of his handwriting, if he is dead, insane, or beyond the Books on medicine, agriculture, science, and the
reach of process. The witness need not remember the like, not being subjects of cross-examination, are not
facts, if he will testify that he believed the entry to be admissible as evidence. But an approved history,
true as set down. being a quasi-public document, is receivable to prove
It is not necessary that the transaction should have a general fact of ancient date, a general custom, or
been directly between the original creditor and debtor; any lilte matter,' See Expert; History; Scientific
nor that the entries should have been against the in- A record in a Bible or other book, by a deceased
terest of the person making them.* relative, as to pedigree (q. v.) is receivable as a decla-
As book-entries are received to prevent a failure of
justice, their admissibility is limited by this necessity.' ration.*
The results of an examination of many books may
Questions in relation to boolts of entry as evidence sometimes be proved.* See Account, 1.
stand upon a new footing since the passage of statutes Under statutes in some States, school-books and
making parties witnesses. Formerly, the book itself Bibles are exempted from levy and sale.
was evidence, and the oath of the party supplementary.
The pledgee of a book must use it carefully.'
Now, the party himself is a competent witness, and See Horn, Letter, Log, Minute, Paper, Tear.
may prove his own claim as a stranger would have Book; Baggage; Document; Lost, 2; Mail, 2; Ob-
done before the statutes were passed.' scene; Refresh; Sdbp<ena, Duces, etc.
The rule is that books of original entries, properly BORN. See Child ; Natds.
proved, are evidence of work and labor performed and
of goods sold and delivered. To this rule are several BOROUGH. 1. A town, whether cor-
exceptions; as, that the invoice book of an agent is porate or not, that sends burgesses to parUa-
not evidence of the sale and delivery of goods nor of
goods to be delivered, nor is an entry evidence that is ment.'
3. A town or city organized for purposes
not in the course of the party's business. Books of
original entry were formerly received in evidence of Ingovernment.'
the United States, not extensively used with any
from necessity. Where the transaction admits of
precise meaning. In Connecticut and Pennsylvania,

1 1 Greenl. Ev. §§ 115-18; 55 Vt. 347; 3 Bl. Com. 368. > Corr V. Sellers, 100 Pa. 170-71 (1883), cases, Mercur, J. ;
2 Richardson v. Wingate, 10 West. Law J. 146 (1853), Laird v. Campbell, ib. 159, 165 (1882); Vinal v. Gilman,
Matthews, J. 31 W. Va. 301 (1883),
' Price V. The Earl, 1 Sm. L. C. 535-T7, cases; 2 Harr., ' 1 Greenl. Ev. §§ 474-78, cases; 1 Whart. Ev. §§ 662,
Del., 288; 4 id. 532; 12 Bankr. Reg. .S90. 663, cases.
* Town of Bridgewater v. Town of Roxbury, 54 Conn, = 1 Greenl. Ev. §§ 440, 497, cases; 1 Whart. Ev, §§ 664-
217 (1886), cases.
70, cases. As to medical books see, especially, Mar-
s Chaffee v. United States, 18 Wall. 541 (1873), cases, shall V. Brown, 60 Mich, 148 (1883); Boyle v. State, 57
Field, J.; ^tna Fire Ins. Co. v. Weide, 9 id. 680 (1869), Wis. 472, 478 (18&31, cases; 60 Cal. 581.
cases; Burley v. German American Bank, 111 U. S. 216 * 1 Greenl. Ev. § 104.
(1884); 20 Wend. 74-70; 70 Iowa, 376; 133 Mass. 478; 59 » Burton v. Driggs, 20 Wall. 136 (1873).
Miss. 378; 21 W. Va. 301, 308-11; 1 Greenl. Ev. §§ 115-17, « 2 Pars, Contr, 111.
120, 151-.54, oases; 1 Whart. Ev. §§ 678-88, cases. ' [1 Bl. Com. 114; 2 id. 82; 41 Mo. 175.
« Nichols V. Haynes, 78 Pa. 176 (1875). 8 See 1 Steph. Com. 116; 3 id. 191.
 BORROW 133 BOTTOMRY

a part of a township having a charter for municipal Theft-bote. Where a person who has been robbed
' takes his goods, back, or receives other amends, upon
purposes.
Borough and village may be duplicate names for an agreement not to prosecute the felon.'
the same thing.' See Town. Bote is supposed to be preserved in the expressions
Borough English. A custom prevalent " What boots it," and "to boot."
in some parts of England (chiefly in old BOTTLE. See Leakage; Seal, 5.
boroughs) by which the youngest son inher- A demijohn holding four gallons is not a " bottle "
within the meaning of a statute requiring Imported
ited the father's estate. liquors to be put up in packages of not less than one
So called to distinguish it from the Norman rule of
primogeniture, q. v. dozen bottles each.''
The oldest sons were provided for as they grew up ; An indictment for the larceny of " bottles " of
liquor was held not sustained by proof of the larceny
the younger remained at home and might have been of liquor in bottles belonging to the accused, into
left destitute but for this law.=
which he had drawn the liquor. '
Burgess. 1. An inhabitant of a borough ; BOTTOMRY. A contract in the nature
also, the representative of a borough in the
house of commons. of a mortgage on a ship : when the owner '
borrows money to enable him to carry on his
3. A magistrate of an incorporated town.
voyage, and pledges the keel or bottom of the
3. The chief administrative officer of an
ship as security for the repayment.^
incorporated town.' "Bottom " was formerly used for ship or vessel.
BOKE.OW. While often used in the Bottomry bond. The instrument which
sense of obtaining a thing to be returned in evidences a contract of bottomry.
specie, is not limited to that sense. There In the sense of the general maritime law,
may be a borrowing where an equivalent is and independent of the peculiar regulations
paid annually in the form of interest, though of the positive codes of different commercial
the contract be perpetual and the loan irre- nations, a contract for a loan of money on
deemable.^ the bottom of a ship, at an extraordinary
" Borrowing " imports a promise or under- rate of interest, upon maritime risks, to be
standing that wliat is borrowed will be re- borne by the lender for a voyage, or for a
paid or returned, the thing itself or some- definite period.^
thing like it of equal value, with or without Blackstone and others speak of bottomry contracts
compensation for the use of it. To borrow of the owner only, omitting those of the master, which
are now the more common, and are strictly for the
is reciprocal with " to lend." 8 See Loan. necessities of the ship.^
Under the usury laws of New York khe word " bor-
A contract by which the owner of a ship
rower" includes any person who is a party to the
oiiginal contract or in any way liable for the loan." hypothecates or binds the ship as security for
Power to "borrow money," vested in public au- the repayment of money advanced for the
thorities, may not include power to issue bonds for use of the shij>.6
the purpose — as, to erect a court-house.' See Pur- The contract creates a lien on the ship enforceable
pose. Public; Tender, Legal (2). in admiralty on arrival at the port of destination, but
BOTE.8 Compensation, recompense ; sat- void in the event of loss before arrival. The hazard
isfaction, amends. being extraordinary, the rate of interest is high.'
Synonymous with French estovers, q. v. House- To Justify giving the bond, it is essential that there
bote: sufficient wood from another's land to repair, or be a necessity, as, for repairs, and a necessity for re-
sorting to the bond to procure the proper funds.
to be burnt in, one's house; whence ^re-ftoie. Plough- There is no such necessity when the master has funds
bote, cart-bote: wood for making and repairing in-
struments ofhusbandry. Hay-bote,, hedge-bote: or can get funds on the credit of the owner.s
wood for repairing hay, hedges, or fences." The vital principle is that the case is one of unpro-
vided and real necessity, and that neither master nor
1 Brown v. State, 18 Ohio St. 507 (1869). owner has funds or credit available.'
2 1 Bl. Com. 75; 2 id. 83.
'Wharton's Law Diet.; 1 Bl. Com. 174. 1 [4 Bl. Cora. 133; 16 Mass. 93; 44 N. H. 16.
* Appeal of Phila. & Reading E. Co., .39 Leg. Int. 98 '' U. S.v. Demijohns of Rum, 8 F. E. 485 (1880).
(Fa., 1882); State v. School District, 13 Neb. 88(1882).. = Commonwealth v. Gavin, 1^1 Mass. 54 (1876).
*Kent V. Quicksilver Mining Co., 78 N. Y. 177 (1879), * [2 Bl. Com. 457.
Folger, J. * The Draco, 2 Suran. 186, 173-89 (1835), cases. Story, J.
• National Bank v. Lewis, 75 N. Y. 523 (1878), cases. « Braynard v. Hoppook, 33 N. Y. 573 (1885), Wright, J.
' Levris V. Sherman County, 1 McCraiy, 377 (1881). 'The Grapeshot, 9 Wall. 135 (1869), Chase, C.J. ; 26
» A. S. bot, profit; M. E. bote, boote. Wend. 575; 33 N. Y. 573.
9 [2 Bl. Com. 85; 1 Wash. E. P. 99. s The Fortitude, 8 Sumn. 83a-37 (1838), cases. Story, J.
 BOUGHT 133 BOUNTY

Such contracts seem to have been first recognized Monuments control courses, and specific courses a
among the ancient Bhodians. They are allowed for general course.^
the benefit of commerce. When bona flde, they will On a question of private boundary, declarations of
be upheld by the com'ts with a strong hand. They a particular fact, as distinguished from reputation,
cover accruing freight, as well as the ship itself. They made by a deceased person, are not admissible unless
are to be liberally construed.^ it is shown that such person had knowledge of that
There is no prescribed form for a bond. Any words whereof he spoke and was on the land or in possession
indicating the amount of the loan, the interest to be of it when the declaration was made — as part of the
paid, the names of the contracting parties, the name
of the vessel, the limits of the voyage as to ports and res Where
gestae.^ a disputed boundary between States is set-
time, the nature of the risks, and the period for re- tled, grants previously made by one of lands claimed
payment, will ordinarily be sufficient. by it, and over which it exercised political jurisdiction,
The lien created takes precedence over other liens, but which, on the adjustment of the boundary, are
found to be within the territory of the other State, are
except liens for seaman's wages.
The bonds are usually negotiable instruments. void, unless confirmed by the latter State; but such
See Hypothecation; Ekspondentia. confirmation cannot affect the titles of the same lands
BOUGHT. See Buy ; Note, 1. previously granted by the latter State. =
BOULEVARD. Originally, a bulwark See Abut; At, 2; Call, 2 (2); Confusion; Descrip-
tion Line,
; 1 ; Monument, 1 ; Thread. ^
or rampart ; afterward, a public walk or road
BOUNTY.^ Money paid or a premium
on the side of a demolished fortificacion ;
offered [usually by government] to encourage
now, a public drive.
or promote an object, or procure a particular
Not, technically, a street, avenue, or highway,
though a carriage-way over it is a feature. Refers to thing to be done. The context may restrict
an area set apart tor purposes of ornament, exercise, the meaning.5
and arausement.2 "A premium offered or given to induce
BOUND, V. See Bailiff ; Bind ; Bond. men to enlist into the public service." That
BOUND, n. ; BOUNDARY. Bound: a is a proper and intelligent definition, indi-
limit: boundary: a visible line designating a cating clearly that the word is only applica-
limit. The terms are often interchanged. ^ ble to the payment made to the enlisted man,
Bounds. The legal, imaginary line by as the inducement for his service, and not as
which different parcels of land are divided. a premium paid to the man by whose pro-
The "bounds of a river" may refer to the center curement the recruit is mustered. «
line of the river. ^ Bounties have also been established for those who
Arttflcial boTindary . An obj ect erected kill dangerous animals or noxious creatures, or who
engage in a particular business or industry which it is
by man for designating the limit of an own-
ership in land ; as, a post, a fence, or other desired to encourage, as in a fishery, or in the manu-
facture of salt.
monument. While boimties are usually paid in money, they
Natural boundary. Any natural object may be paid in land. Whence bounty lands, and
remaining where placed by nature; as, a. bounty-land, warrants.
Land or money, other than current salary or pay,
spring, a stream, a tree.
Private boundaiy and public boundary are used. granted by the government to a person entering the
The most material and most certain calls control military or naval service, has always been called a
those which are less material and less certain. A call bounty; and while it is by no means a "gratuity,"
for a natural object, as, a river, a stream, a spring, or because the promise to grant it is one of the consider-
a marked tree, controls both course and distance." ations for which the soldier or sailor enters the serv-
Courses and distances yield to natural and ascer- ice, yet it is clearly distinguishable from " salary " or
tained objects. Artificial and natural objects called pay measured by the time of service.'
for have the same effect. In a case of doubtful con-
struction the claim of the party in actual possession 1 Grand County v. Larimer County, 9 Col. 280 (1886).
will be maintained.* ^Hunnicutt u Peyton, 102 U. S. 364, 363 (1880), cases.
See generally 2 Washb. H. P. 630-38, cases; 1 Greenl.
' The Albro, 10 Bened. 671-72 (1879), cases; 1 Pet. Ev. §S 145, 301, cases; 1 Whart. Ev^ §§ 185-91, cases;
*436-37: 3 Kent, 333; 2 Bl. Com. 457. 28 Am. Law Reg. 646-48 (1880), cases. The highway as
" People ex rel. Seaver v. Green, 52 How. Pr. 445 a boundary, 38 Alb. Law J. 305-S (1887), cases.
(1873), Fancher, J. = Coffee V. Groover, 1S3 U. S. 10(1887), cases, Brad-
= See Webster's Diet. ley, J. Boundary between Georgia and Florida.
* Walton V. Tift, 14 Barb. 221 (1852). <L. bonitas, goodness, gratuity: bonus, good.
» Newsom v. Pryor, 7 Wheat. 10 (1810), Marshall, C. J. ; » Fowler v. Selectmen of Danvers, 8 Allen, 84 (1864),
Brown v. Huger, 21 How. 321 (1858). Bigelow, C. J.
• County of St. Clair v. LoviBgston, 23 WaU. 62 (1874), « Abbe V. Allen, 39 How. Pr. 488 (1870), Bacon, J.
cases, Swayne, J. ' Five Per Cent. Cases, 110 U. S. 479 <1884), Gray, J.
 BOYCOTTING BOYCOTTING
134

General encouragements, held out to all persons Any such combination is, and ever has been, at
indiscriminately, to engage in a particular trade or common law, a conspiracy, the unlawfulness consist-
manufacture, whether in the shape of bounties or ing in the agreement for the concerted action; and
drawbaclcs, or other advantage, are'always under legal aptly illustrates the well-settled principle that two
control and may be discontinued at any time. Thus or more peisons may not combine to do toward an-
a law offering a sum for every bushel of salt manu- other what one individual of his own accord might
factured ina State is a general law, regulative of in- not xmlawf ully do.
ternal economy, dependent for its continuance upon "The doctrine to be gathered from the cases seems
the dictates of public policy, and the voluntary good to be that a conspiracy of this kind ceases to be legal
faith of the legislature. Such law does not belong to when the means designed . are characterized by
the class denominated "contracts," except so far as force, threats, intimidation, molestation, improper in-
actually executed and complied with.^ terference, or compxdsion." i
BOX. See Ballot-box ; Jury-box. It is against the criminal law for a number of men
BOYCOTTING. A combination between to band together for the purpose, through the power
of combination, of injuring the business of another, by
persons to suspend or discontinue dealings or parading before his door, by placarding themselves
patronage with another person or persons be- with the word " boycott," by advising passers-by not
cause of refusal to comply with a request to patronize the establishment, by distributing circu-
made of him or them. The purpose is to lars filled with accusations and justifying the boycott,
and by other devices calculated to induce the public
constrain acquiescence or to force submission
to keep away from the alleged wrong-doer, — provided
on the part of the individual who, by non- that the persons so engaged use force, threats, or in-
compliance with the demand, has rendered timidation. To (constitute intimidation it is not neces-
himself obnoxious to the immediate parties, sary that there should be an overt act of violence or
and, perhaps, to their personal and fraternal any direct threat by word of mouth; it is enough if
associates. the attitude of the accused was intimidating; and this
may be shown by their numbers, methods, placards,
The persons directly so confederating have circulars, and other devices. If the attitude and
hitherto as a class been employees as against method is such as to deter any of the complainant's
either their own employer or the employer of customers, even the most timid, from entering his
others in a like business, or else of retail place of business, or to inspire any portion of the gen-
eral public with a sense 6t danger in ignoring their
dealers as against a particular manufacturer
appeals, there is intimidation. In New York procur-
or wholesale dealer. ing money from another with his consent obtained by
The means employed have been the with- fear, induced by threat to do or to continue an injury
drawal of the custom and good-will in busi- to his property, constitutes " extortion ; " and every
person present when the money, or the agreement
ness of the immediate parties and of such under which it was paid, is obtained, and who aids and
others as they could influence. abets the person to whom it is paid, by personal par-
The word may refer to the fact of combin- ticipation or by silently acquiescing in the threats
ing or to the resolution as executed. made by his associates speaking in their joint behalf,
is liable as a principal, and he need not be present
The practice takes its name from one Boy-
when the money is actually received.^
cott, an agent for Lord Earne on certain es- Associations have no more right to inflict injury
tates in the western part of Ireland. Having upon others than have individuals. All combinations
lost favor with the tenants, from evictions and associations designed to coerce workmen to be-
and other harsh treatment, they agreed not to come members or to interfere with, obstruct, vex or
annoy them in working or in obtaining work because
work for him, and the tradesmen of the com-
they are not members, or to induce them to become
munity not to deal with him.2 members; or designed to prevent employers from
"The word in itself implies a threat. In making a just discrimination in the wages paid tcJ the
skillful and tlie unskillful, the diligent and the lazy,
popular acceptation it is an organized effort
theefBcient and the inefacient; and all associations
to exclude a person from business relations designed to interfere with the perfect freedom of em-
with others by persuasion, intimidation and ployers in the proper management of their lawful
other acts which tend to violence, and thereby business, or to dictate the terms upon which their
coerce him, through fear of resulting injury,
gheny Co. , Pa. (Apiil 21, 1838), Slagle, J. : 83 Pitts. Leg. J.
to submit to dictation in the management of
339, 403. See "England under Gladstone," McCarthy.
his affairs." 2 1 10 Va. Law J. 709 (Sept., 1880), Atkins, J., in Crump
V. Commonwealth. AfBrmed, May 24, 1888.
' Salt Company v. East Saginaw, 13 Wall. 379 (18711, = People V. Wilzig, 4 N.-Y. Cr. R. 403 (O. & T. N. Y.
Bradley, J. See also Commissioners v. Woodstock Co., June, July, 1886), BarrtStt, J. , Sometimes called
Iron Co., 83 Ky. 153 (18R6), cases. Theiss's Case. N. Y. Penal Code, §§ 552-53. See also
' Brace Brothers v. Evans et al., C. P. No. 1, Alle- People V. Lenhardt, ib. 317 (June, 1886).
 BRAKEMAN 135 BREAK

business shall be conducted by means o£ threats o£ Breach, of contract or covenant. A

injury or loss, by interference with thair property or failure to observe the conditions of a con-
traffic, or with their lawful employment of other per- tract. See Contract ; Covenant.
sons, or designed to abridge any of those rights,— are
■pro tanto illegal combinations; and all acts done ill Breach, of pound. The forcible removal
furtherance of such intentions by such meaiis and ac- of a thing lawfully impounded. Also called
companied bydamage are actionable.^ pound-breach. See Pound, 3.
An act of Wisconsin, approved April 2, 1887 (Laws,
Breach of prison. Escape from lawful
oh. 2S7), provides that: Any two or more persons who
shall combine, associate, agree, mutually undertake, confinement in a prison. Also called jprison-
breach. See Escape, 1 (2).
or concert together for the purpose of willfully or ma-
liciously injm'ing another in his reputation, trade, Breach of privilege. Violation of the
business or profession, by any means whatever, or for privilege of a legislature. See Privilege, 4.
the purpose of maliciously compelling another to do
or perform any act against his will, or preventing or Breach of promise. Failure to solem-
nize a contract of marriage, q. i:
hindering another from doing or performing any law-
ful act, shall be punished by imprisonment in the Breach of the peace. Disturbance of
county jail not more than one year, or by fine not ex- the public order. See Peace, 1.
ceeding five hundred dollars.^ Breach of trust. Violation of the duty
See further Combination, 2; Conspiracy; Injury,
Irreparable; Strike, 2. Compare Black-listing. See
imposed by an instrument creating a trust ;
also Assembly. Unlawful; Riot. also, willful misappropriation of a thing
bailed. See Trust, 1.
BRAKEMAJS". See Admission, 2 ; Neg-
ligence.
Breach of ■warranty. Where a contract
BRANCH. See Railroad. of warranty is broken in any of its condi-
BBAIfD. To burn ; to mark, stamp. tions. See Warranty.
In common parlance, to mark. What was formerly Continuing breach. Describes acts in
done by a hot iron in the way of marking packages is
now done by the stencil plate. In referring to marks violation of one's duty, continuous or re-
upon packages of merchandise, the use of stencil peated at short intervals.
BREAD ACTS. Statutes providing for
plates is denominated " branding " quite as often as
otherwise. "To brand" has become an equivalent the sustenance of persons confined in jail
expression with to stamp and to mark.' See Burn. for civil causes have been so called, i
BRAWL. A noisy quarrel ; uproar. BREAD AND WATER. To be fed on
"Brawl" and "tumult" are correlative terms. bread and water was part of the punishment
They refer to the same kind of disturbance of the
peace, produced by the same class of agents, and well imposed under the Great Law of the prov-
define one and the same offense.* See Peace, 1. ince of Pennsylvania (1682) for swearing,
BREACH. Breaking, violation, infrac- profanity, cursing, drunkenness, and offenses
tion.
of like grade.2
1. A violation of duty or obligation. 2. This is also sometimes made the diet of persons
held in confinement who refuse to obey reasonable
The part of a declaration which charges the
violation of a contract. See Damages. prison-rules.
BREAK. 1. To sever by fracture; to
Breach of close. An unlawful entry
part or divide with force or violence ; also, to
upon land. See Close, 3.
lay open or uncover.
' Old Dominion Steamship Co. v. MoKenna, U. S. Break bulk. For a bailee to open a box
Cir. Ct., S. D. N. Y. (Feb. 26, 1S87), eases, Brown, J. : 30 or package intrusted to his custody and
F. E. 48, 3.1 Alb. Law J. 203, 26 Am. Law Reg. 423-32, fraudulently appropriate the contents.^ See
cases 18 Abb. N. Cas. 262, 281, cases. See also State Larceny, By bailee.
V. Glidden, 55 Conn, 76 (April, 1887): 35 Alb. Law
Break doors. To remove the fastenings
J. 348, 3 N. E. Rep. 849; 9 Cr. Law Mag. 1-17 (Jan., of a house with force, so that a person, as,
1887), cases; 21 Am. Law Rev. 41-69 (Feb., 1887), cases;
ib. B09-32 (18S7), cases; State v. Stewart, Sup. Ct, Vt. an officer executing process, may enter. See
(May, 1887), cases: 36 Alb. Law J. 9-11 (1887); 35 id. House.
203, 224-26 (1837), cases; 22 Am. Law Rev. 233 (April,
ground
Breakment; . .See Freight, Affreight-
Sailing
1888), cases; 3 Kans. Law J. 273 (1886).
. = Compare Penn. Acts 8 May, 1869, 14 June, 1872, 20
April, 1870: Purd. Dig. 1172. Applied, Brace Brothers 1 See 49 Conn. 87, 89; 91 U. S. 300; 3 Bl. Com. 416;
■V. Evans et al., ante,
1 Brightly, T. & H. § 1426.
« Dibble v. Hathaway, 11 Hun, 5761-76 (1877), Bockes, J. 2 Laws of Prov. of Penn., Linn, 110-111.
•State V. Perkins, 42 N. H. 465 (1861). 3 1 Pick. 375; 4 Mass. 680.
 BREAST OF THE COURT 136 BRIDGE

Break jail or prison. To escape from 2. When a judge, or other person con-
a place of lawful confinement. See Escape, 1. cerned in the administration of justice, takes
Break seals. See Seal, 1, 4. any undue reward to influence his behavior
2. In burglary and house-breaking, to re- in office. 1
move any part of the house, or of the fasten- Giving (and perhaps offering) to another
ings provided to secure it against intrusion, anj'thing of value or any valuable service,
■with intent to commit a felony. intended to influence him in the discharge of
Such breaking is actual when force is a legal duty. It does not apply to a mere
used ; and constructive when au entry is moral duty.^
effected by fraud, conspiracy, or threat. ' See The later and broader doctrine is that any
further Burglary. attempt to influence an officer in his official
3. To violate a duty or engagement: as, to conduct, whether in the executive, legis-
break a contract. See Breach. lative, or judicial department of the govern-
4. To establish, in a judicial proceeding, ment, by the offer of a reward or pecuniary
the invalidity of an alleged will. See Con- consideration, is an indictable common-law
test.
misdemeanor. 3
;BREAST op the court. This ex- A candidate for a judgeship who pledges himself, if
elected, to serve at a less salary than that provided by
pression, much used by the older writers,
law, virtually bribes the masses to vote for him,*
seems to mean the sound discretion, the con- Bribery in a judge of the United States courts, of a
science and judgment, of the judge or judges member of Congress, or of any officer of the United
of a court. States, is punishable.*
During the term tlie record is in the breast of the The general election laws of Pennsylvania prohib-
court. 2 iting bribery include caucuses as well as elections
In a trial per testes the judge is left to form in his for State officers; and the constitutional prohibition
own breast his sentence upon the credit of the wit- against violation of any " election law"" includes any
nesses examined.^ law intended to purify, elections, then or thereafter in
The liberty of considering all questions in an equi- force." See Candidate.
table light might leave the decision of every question One who bribes another cannot maintain an action
entirely in the breast of the judge.* to recover the money.' Compare Corkupt, 2.
BREVE. L. A writ; literally, short, BRIDGE. A structure of wood, iron,
brief, q. v. Also, an original writ. Plural, brick, or stone, ordinarily erected over a river,
brevia. brook, or lake, for the more convenient pas-
Br&via were originally in the form of letters. They sage of persons and beasts and the transpor-
tersely stated the matter in question — rem qucB est tation of baggage.^
breviter narrat. The species came to be known by
A structure, usually of wood, stone, brick,
some important word or phrase in the writ itself, or
from the subject-matter; and this word or phrase, in or iron, erected over a river or other water-
turn, was transferred to the form of action in the pros- course, or over a ravine, railroad, etc., to
ecution ofwhich the writ {breve) was procm-ed.^ make a continuous roadway from one bank
BREWER. See Liquor.
to another.*
Every person, firm, or corporation who manufact- Formerly and strictly, the word, unqualified, im-
ures fermented liquors of any name or description, for ported astructure that had a pathway. In this sense
sale, from malt, wholly or in part, or from any substi-
tute thereof. •* Compare Distiller. MBl. Com, 139; 65111. 65.
BRIBERY. 1. In old English, theft, 2 Dishon v. Smith, 10 Iowa, 221 (1859).
rapine, open violence, ofScial extortion. ' State 1). Ellis, 33 N. J. L. 103 (1868). See also 62Cal.
The rapacious dignitary was styled the briber^ and 493; 135 Mass. 630.
he was said to bribe when he boldly grasped his prey ; * People ex rel. Bush v. Thornton, 25 Hun, 466-66
^now, the tempter is the briber' and the recipient the (1881), cases. See also State v. Elting, 29 Kan. 399,
bribed.' ^ 402-4 (1883), cases; Hall v. Marshall, 80 Ky. 553, 563-66
(1882), cases.
' See Timmons v. State, 34 Ohio St. 427-31 (1878), " E. S. §§ 5449-51, 5499-6B02.
cases; 68 N. ,0. 207; 85 Pa. 54; 2 Chitty, Cr. L. 1092. " Leonard v. Commonwealth, 112 Pa. 607, 626 (1886).
a 3 BI. Com. 407; 105 ni. 668, 669. ' Clark V. United States, 102 U. S. 333 (1880). See
s 3 Bl. Com. 336. generally People v. Shai-p, 10 N. Y. St. R. 522-77 (1887),
■<1B1. Com. 62; 112 U. S. ISO. cases, etc.
' Coke, Litt. 73 6, 64 b; Steph. PI. *27. • Enfleld Bridge Co. v. Hartford, &c. E. Co., 17 Conn.
» Revenue Act, 13 July, 1866: 14 St. L. 117. 66 (1846), Williams, C. J.
' Marsh, Lect. Eng. Lang. 249. ' Webster's Diet. ; Madison County v. Brown, 89 Ind.
 137
BRIDGE BRIEF

a railroad bridge, being in the nature of a viaduct, is merely connecting lines of turnpikes, streets, and rail-
not a violation of a francliise for an ordinary tol^- roads; and the commerce over them may be much
bridge.^ See Railroad. greater than that on the streams which they cross. A
The word includes the structure itself and such abut- break in the line of railroad communication from the
ments as are necessary to make the structure accessi- want of a bridge may produce greater inconvenience
ble and useful; but exactly what constitutes abridge to the public than the obstruction of navigation caused
in a particular case is a question of fact.^ by a bridge with proper draws. In such cases the
The approaches to a bridge, within reasonable limits, local authority can best determine which of the two
are a part of the bridge. ^ See Abutment. modes of transportation should be favored. ^
Free bridge. A bridge owned and main- Congress can empower a private corporation to oc-
tained, usually by the public, free of charge cupy navigable waters within a State, and appropriate
the soil under them, in order to construct a bridge for
to ti-avelers. Toll bridge. A chartered the purposes of inter-State commerce, against the pro-
bridge, vrith the right in its owners to collect test of the State,"
toll in reimbursement of the cost of construc- The act of Congress of June 16, 1886, authorizmg
tion, repaira, etc. the construction of a railroad bridge across Staten
Private bridge. A bridge for the use of Island Sound, known as " Arthur Kill," and establish-
ing the same as a. post-road, is within the power to
individuals, generally its owners. Public
regulate commerce, to open up commercial com-
bridge. A bridge which constitutes a part munication between the States. Such privilege may
of the public highway, whether free or toil. be exercised without the consent of the State in which
See Toll, 2. the sti-ucture is to be placed. The grant is, in effect,
A bridge is to be maintained (the repair being equal of the use of the soil, not an assumption of exclusive
to the service expected) by its owner, whether a county, jurisdiction. The right of the State is not property
a township, it municipality, or a company. But the susceptible of pecuniary compensation as "private
person or persons, as, a railway company, who makes property " taken for public use.s
the structure a necessity, is to make repairs; it he Speaking generally, a chartered bridge will not be
allowed near another bridge, nor near a ferry, having
fails in this duty, the public authorities must make
thezn at his expense.* an older franchise.*
If a bridge is not kept in repair, redress maybe had See Commerce; Deawbridoe; Ferry; Navigation.
in court by indictment for maintaining a nuisance, by BIIIEF.6 A concise statement ; an epit-
injunction, by guo warranto^ by mandamus, and by ome ;an abridgment.
suit for special damage suffered by any individual Sometimes used in a verbal sense, to reduce to the
person. form of a brief, etc. See State, 1.
A State may erect a bridge over a river, provided Brief of title. An abstract of the deeds,
inter-State navigation is not thereby unreasonably ob-
structed." judicial proceedings, etc., which affect a title
What the form and character of bridges over a to realty. See further Abstract, 2. Com-
navigable stream should be, that is, of what height
and materials, and whether with or without draws, are
pare also Sea-beief.
1. In very old law, a writ. See Breve.
matters for regulation by the particular State or States
authorizing the construction, subject only to the para-
2. An abridged statement of a party's case,
mount authority of Congress to prevent unnecessary prepared by his counsel, usually for the law in-
obstruction to free navigation. Until Congress inter- formation ofthe court on the matters of
venes in such cases, and exercises its authority, the involved.** See Paper, 5.
power of the State is plenary. . Bridges are In England the essentials of a case as pre-
pared in writing by the solicitor or attorney
58 (1883). See 5 South. Law Eev. 733-35 (1880), cases; 37 for the use of the barrister who is to conduct
Me. 481; 133 Mass. 313; 41 Ohio St. 52; 110 U. S. B66; 6
Iowa, 455; Ang. Highw. § 35. the case in court is called "the brief" in the
> Proprietors of Bridges v. Hoboken Land Co., 1 Wall. case. In America the term designates the
149-51 (1863), cases; s. u., S Beasley, 603. See also memorandum counsel take into court or to a
Smith Bridge Co. v. Bowman, 41 Ohio St. 56-58 (1884).
"ToUard v. Willington, 26 Conn. 582-83 (1857), cases; ' Hamilton v. Vicksburg, &c. R. Co., 119 TJ. S. 281-82
Bardwell v. Jamaica, 15 Vt. 442 (1E43). (1886). Field, J.
s Rush County v. RushvUle, &c. R. Co., 87 Ind. 505 » Decker v. Baltimore & N. Y. R. Co., 30 F. R. 734-28
(1883); Driftwood Valley Tm-npike Co. v. Bartholomew (1887), cases, Wallace, J.
County, 72 id. 236-38 (1880), cases; Whitcher v. Somer- a Stockton, Attorney-CJeneral v. Baltimore, &c. R.
vUle, 133 Mass. 455 (1885). Co., S2 F. R. 9, 10 (1887), cases, Bradley, J. Same case,
4 Penn. R. Co. v. Borough of Irwin, &5 Pa. 336 (1877); 86 Alb. Law J. 371.
Shelby County v. Deprez, 87 Ind. 510-13 (1882), cases. « See 3 Bl. Com. 219; 4 id. 167; Enfield Toll Bridge
■» Pennsylvania v. Wheeling Bridge Co., 13 How. 662 ■a. Hartford, &c. R. Co., 17 Conn. 40, 66 (1846), cases.
(1851); People v. Kelly (Bast River Bridge), 5 Abb. N. 5 F. bref: L. brevis, short.
Cas. 383, 439 (1879); 5 McLean, 426. ' Gardner ii. Stover, 43 Ind. 357, 356 (1873).
 138
BRING INTO COURT BROKER

hearing before an auditor, master, or other Brokers take their names from the kinds of con-
commissioner, to assist in elucidating the tracts they negotiate. The more common classes are
the following:
law, and, perhaps, the facts in a particular
Bill and note brokers. These negotiate
case ; also, the statement of the law (statutes,
the purchase and sale of bills of exchange
decisions, etc.) supposed to apply to a case
and promissory nbtes.
pending before a court of review, and filed
They impliedly warrant that the paper is as repre-
for the information of the court and of op- sented, with respect to the genuineness of signatures,,
posing counsel.i but not as to the solvency of parties. '
Briefless. Without briefs ; without busi- Their usefulness would be destroyed if a purchaser
was to be affected with their knowledge as to the char-
ness requiring the preparation of briefs;
without clients. acter of the paper they offer in market for discount.^
See Exchange Broker.
Within the meaning of the rules of an appellate
Commercial broker. A person who
court, a " brief " is a statement of a case for the infor-
mation of the court. It should furnish aid in deciding negotiates sales of merchandise, or contracts
the case — show why the judgment below should be for freights, for other persons.
either reversed or affirmed.' Within the meaning of the internal revenue laws a
After the trial or argument of a cause, though the person who negotiates sales orpm-chases in the names
counsel of one of the parties gives iiotice that he will of the parties primarily liable; not, one authoiized to
furnish the court a brief of authorities, a decision sell in his own name or on his own accoimt.^
may be rendered without giving time for the prepara- Any person or firm whose business it is, as a broker,
tion of the brief. The reception of briefs being for the to negotiate sales or purchases of goods, wares, or
assistance of the court, the judges, who are presumed merchandise, or to negotiate freights and other busi-
to know the law, are not bound to receive them.'^ ness for the owners of vessels, or for the shippers, or
BEING INTO COUBT. See Payment. consignors, or consignees of freight carried by ves-
sels, shall be regarded as a commercial broker.*
BBING SUIT. See Brought; Suit.
BRISTLES. See Hair. Exchange broker. A broker who nego-
BBITISH. See Statute. tiates bills of exchange, foreign or domestic.
Every person, firm, or company, whose business it
BBOKER.' An agent employed to make is to negotiate purchases or sales of stocks, bonds, ex-
bargains and contracts between other per- change, biillion, coined money, bank-notes, promissory
sons in matters of trade, commerce or navi- notes, or other securities, for themselves or others,
gation, for a compensation commonly called shall be regarded as a broker.* Compare Bill and
Stock Broker.
brokerage.*
Brokerage. The business of a broker; Insurance broker. A person who nego-
tiates contracts of insurance.
also, his remuneration or commission. For-
He is agent for both parties. An insurance agent
merly spelled brokage and brocage. is, ordinarily, the employee of the insurer only. See
The term ' ' broker " is no longer limited to lysuKANCE, Broker.
a person employed to negotiate contracts for Merchandise broker. A broker who
the sale or exchange of goods, but is extended negotiates sales of merchandise without hav-
to almost every branch of business — to realty ing possession or control of it. See Factor.
as well as to personalty.' Pawnbroker. A person, usually licensed,
The term is applied, ordinarily, to one act- who loans money, in small sums, at usurious
ing for others.6 interest, on the security of pledges of per-
A broker is a middleman, an intervener sonalty. See further Pawn.
between the buyer and the seller : a factor or Produce-broker. A person whose occu-
pation itis to buy and sell agricultural or
agent who acts for one or the other.''
1 Gardner v. Stover, ante. farm-products. ^
2 Van Dolsen v. Abendroth, N. Y. City, Mar. Ct., 15 Not, then, one who sells from his own farm, or goes
from house to house to sell his own produce.^
Eep. 4;'a (1883).
3 In Mid. Eng. an agent, a witness of a transaction.
Probably allied to A. S. bru'can, to use, employ,— 'Baxter ii. Duren, 29 Me. 439^1 (1849), cases; Mor-
Skeat. rison V.Currie, 4 Duer, 82-85 (1854), cases; Aldrich v.
* Story, Agency, § 88; 83 N. Y. 381, infra. Jackson, 5 H. I. 219 (1668).
= Little Rock v. Barton, 33 Ark. 448, 444-49 (18T8), "^ Moorehead v. Gilniore, 77 Pa. 122. Agency: Worth-
cases, Turner, S. J. ington V. Cowles, 112 Mass. 30; 1 Dan. N. Inst. § 740 a.
« Warren v. Shook, 91 U. S. 710 (1875), Hunt, J. " [Slack V. Tucker, 23 Wall. 329 (1874).
' [United States v. Simons, 1 Abb. U. S. 478-73 (1870), < [Revenue Act, 13 July, 1866: 14 St. L. 117, 116.
McCandless, J. ' United States v. Simons, ante.
 139
BRONZES BUILDING

Beal estate broker. A broker who BBOTHEBHOODS. See Community, 3.

negotiates sales of realty. BBOUGHT. Commenced.
He may also negotiate loans on mortgages, let In the legislation of Congress on the subject of
houses, lease lands, collect rents, etc. limitation of actions, "commenced" and "brought"
Inasmuch as acting for both pai'ties, in an exchange mean the same thing. *
of lands, involves inconsistent duties he can recover A suit is brought when it is instituted or com-
remuneration from neither party, notwithstanding an menced.^ See Commence, Action.
express promise by one of the parties to pay a per- BEOWBEAT. To depress or bear down
centage, unless it dearly appears that each principal
had full knowledge of all the circumstances connected
with haughty, stern looks, or with arrogant
with his employment by the other which would natu- speechijand dogmatic assertions; to bear
rally affect his action, and had assented to the double down by impudence: as, to browbeat a wit-
employment. When such knowledge and assent are ness.' Compare Badger. See Examina-
shown, he may recover from either party.* tion, 9.
Ship broker. A broker who negotiates BBUTALITY. See Cruelty; Whip-
sales of ships, freighting of vessels, etc. See ping-post.
Commercial Broker. BUBBLE ACT. The statute of 6 Geo. I
Stock broker. A broker who buys and (1720), c. 18 (enacted after the South Sea
sells shares in corporations. See Order, project had beggared half the nation), made
Stop, 2; RiNGlNQ Up; Stock, 3, Exchange. all unwarrantable undertakings by unlawful
Ordinarily, a broker never buys or sells in his own
name, nor has he possession of the goods; wherein he subscriptions, then known as " bubbles,'' sub-
differs from a " factor " or commission merchant. By 6jectsGeo.
of prcemuni7-e.*
IV (1S26), the greater portion of that stat-
His business is to bring buyer and seller together; but
ute was repealed, and illegal companies left to be
he need not actually negotiate the bargain. Unless
there is a special agreement to the contrary, he earns dealt with by the common law.^
his commission when he prociires a party with whom "Bubble Acts" and " bubble companies "
the principal is satisfied, and who actually contracts are still in use in speaking of persons who
for the purchase of the property at a price acceptable have been defrauded by subscribing to the
to the owner. But he must establish his employment stock of companies organized either without
and that his agency was the procuring cause of the
sale. Fending an authorized negotiation at private
real capital or business, or with capital but
sale, the owner cannot take the business out of the for dishonest speculation.
broker's hands, complete the sale, and then refuse tft BUCKET-SHOP. See Wager, 2.
pay the commission.* The owner must have a good BUGGEBY. See Sodomy.
reason for refusing to fulfill his agreement to pay the BUGGY. See Wagon.
broker for his services. Usage, in the absence of an
BUILDING. In its broadest sense, an
express contract, determines the value of the serv-
ices.* When the broker does not disclose his princi- erection intended for use and occupation as
pal he may be held as principal. See Reai.izs. a habitation or for some purpose of trade,
BRONZES. See Fuknitube. manufacture, ornament, or use, constituting
BBOOD. See Partus. a fabric or edifice, such as a house, a store, a
BBOTHEL. See Bawdy-house.
church, a shed.6
BBOTHEB. See Blood, 1; Consan- A structure of considerable size, intended
guinityDescent,
; Canons of. to be permanent or at least to endure for a
' Bell V. McConnell, 37 Ohio St. 399-403 (1881), cases. considerable time.'
"See McGavock v. Woodlief, 20 How. 227 (1857); The " commencement " of a building imports some
Walker v. Osgood, 98 Mass. 348 (1867): 93 Am. Dec. work and labor on the ground, the effect of which is
171-78, cases; Keys v. Johnson, 68 Pa. 43-44 (1871), apparent, as, beginning to dig the foundation, or other
cases; Sibbald v. Bethlehem Iron Co., 83 N. Y. .381-82 work of like description, which every one can readily
(1881), cases; Vinton v. Baldwin, 88 Ind. 105-6 (1882), recognize as the commencement of a building,* —
cases; Viaux v. Old South Society, 133 Mass. 10 (1882); ' Goldenberg v. Murphy, 108 U. S. 103 (1883), Waite,
Armstrong v. Wann, 29 Minn. 127-28 (1882), cases; C. J.; 119 id. 476.
Barry v. Schmidt, 57 Wis. 172 (1883) ; Hamlin v. Schulte, ^Berger v. Commissioners, 2 McCrary, 480 (1880):
Sup. Ct. Minn. (188rj: 36 Am. Law Eeg. 106 (1887); ib. Act of Congress, 1875, § 1.
103-15, 643-68 (1887), eases; 20 Cent. Law J. 406-fi8 s Webster's Diet.
(1883), cases; Chic. Leg. Adv. (1885): 9 Va. Law J, 515, • 4 Bl. Com. 117.
2 Kans. Law J. 243; 22 Cent. Law J. 126-29 (1886), »4 Chitty, Bl. Com. 117.
cases; 21 Am. Law Eev. 705-14 (1887), cases; 26 Cent. « Truesdell v. Gay, 13 Gray, 312 (1859), Bigelow, C. J.
Law J. 75-77 (1888), cases. ' Stevens v. Gourley, 97 E. C. L. 112 (1859), Byles, J.
' Koch V. Emmerling, 22 How. 74 (1859). s Brooks V. Lester, 36 Md. 70 (1872).
 BULK 140 BURGLAR

work being done with the purpose then formed to BUNDLING. See Seduction.
continue it to the completion of the building.' BURDEN. That which is borne : charge,
The idea in all the cases which concern a "new"
building is newness of structure in the main mass — obligation, duty ; also, disadvantage. Com-
the entire change of external appearance, which de- pare BE^fEFIT ; Incumbrance ; Onus.
notes adifEerent building from that which gave place Burdensome. Grievous, oppressive: as,
to it, though into the composition of the new structure a burdensome contract.
some of the old parts may have entered. This new-
nes.s of construction must be in the exterior, the Burden of proof. The obligation im-
main plan of the building, not in the intericSi; arrange-
posed upon a party who alleges the existence
ments.2 ^& of a fact or thing necessary in the prosecution
See Addition, 1; Alter; Buiigl.4rt; Erect, 1; or defense of an action, to establish it by
House, 1; Loss, Total; Specification, 1; Structure;
Support, 2.
Bviilding or building and loan associ- Sometimes spoken of simply as "the bur-
proof. 1 den." See further Proof, Burden of.
ations. Co-operative associations, usually BUREAU. SeeBoAED, 3; Department;
incorporated, for the purpose of accumulating Health; Labor, 1.
money and loaning it to their members upon BURGESS. See Borough.
the security of their real estate.
Each member makes a monthly payment upon each
BURGLAR.2 He that by night breaketh
share of his stock, and such members as borrow from and entereth into a mansion-house with in-
the association pay, in addition, interest upon the tent to commit a felony."
sums loaned to them. When the stock, from the pay- Burglarious. Intending to commit burg-
ments of the monthly installments upon shares and
from the accumulation of interest, reaches its par
Burglary.
lary. ^ Originally, the robbery of a
value, the mortgages given by the borrowers are can-
celed, and the non-borrowers receive in cash the par
dwelling; now, breaking and entering the
of their shares of stock. house of another in the night-time with in-
Buildings, public. See Land, Public. tent to commit a felony, whether the felony
Builder. A person whose business it is to be actually committed or not.5
construct buildings, vessels, bridges, canals, *' House-breaking " describes the same offense, the
time not being regarded.
or railroads, by contract.^ See Contkactoe. Burglary, or nocturnal house-breaking, has always
He who imdertakes to build a house imj)liedly Ijfcen looked upon as a very heinoiis offense; not only
agrees with every person who may have occasion to
because of the terror that it naturally carries with it,
use it that he will exert, in the construction, such skill, but also as it is a forcible invasion and disturbance of
care, and foresight as may be expected of a man of at
that right of habitation which ev6ry individual might
least ordinary caution.*
acquire even in a state of nature."
The occupant of a house likewise agrees not to over-
By " night " is meant the period between total dis-
load afloor; and, that every part of the premises, in
appearance of daylight in the evening and its re-
and out of doors, to which the public are admitted, appearance the next morning. The disappearance is
shall be reasonably guarded against accident. See total when a face can no longer be discerned. See
Carb; Duty, 1; Mansladghtbii; Negligence; Bes,
Night.
Perit, etc.
As to the expense of changes made in plans and By "mansion-house" is meant a dwelling-house:
any building actually used for human habitation and
specifications, see Watson v. Jones, under Contract, not .permanently abandoned. It includes incidental
Executed, and Phillips Construction Co, v. Seymour,
under Covenant. out-buildings which are parcel of the ■ dwelling-house.
By statutes, extended to stores or shops. A. single
BULK. See Break. room may be such habitation: the injured owner being
BULLDOZE. See Ballot ; Conspieacy. he who has the right of possession. See Curtilage.
BULLION. Uncoined gold and silver, There must be both a "breaking" and an "enter-
either smelted, refined, or in the condition in ing." Breaking
" " means the removal of some portion
which it is used for coining. 1 People V. McCann, 16 N. Y. 66 (1857); Willett v. Eich,
Fr m an early penod, has been associated with or 142 Mass. 357 (1886).
employed as a term denoting money.' See Bank, 2 (2). = F. fturgrar, a burg-thief: ahouse-breaker: L. latro,
a robber.
1 Kelly V. Eosenstock, 45 Md. 392 (1876), cases. s Coke, 3 Inst. 63; 4 Bl. Com. 2H; 29 Ind. 80; 34 ia.
' Miller v. Hershey, 59 Pa. 69 (1868),. cases. An. 49; 53 Md. 153.
3 See Revenue Act, 13 July, 1886: 14 St. L. 121. * See 14 Tex. Ap. 664.
•1 Addison, Torts, §569; People v. Buddensieck, 4 ' Anderson v. State, 48 Ala. 666 (1872): 3 Chitty, Crim.
N. Y. Cr. E. 230, 250-72 (1886), cases. Law, 1101.
' Counsel v. Vulture Mining Co., 5 Daly, 77 (1874). «4B1. Com. 223.
 BURIAL 141 BUSINESS

ot the house intended for security against intrusion. BUENED. See Lost, 3.
This may be by lifting a latch or a window, or by get- BUENING. In the law of arson (g. v.),
ting in through artiflde or conspiracy; but not by
raising a window already open, pushing back a door
to. materially destroy the integrity of some
standing ajar, or by other entrance already made, portion of the house of another.!
except as to a chimney, which is as much closed as Burning in the hand and left cheek was anciently a
the nature ot things will pemiit. The breaking may mode ot punishment. * See C, 2; F, 1 ; T, 2.
be of an inner or chamber door, or for purposes of Prior to 30Geo. HI (1790), c. 48, the penalty for trea-
egress. The least degree of " entering ' ' with any part son was being burned alive; ' and so, anciently, as to
of the body, or with an instrument held in the hand, is arson.* But victims seem to have been first deprived
sufficient; and it maj; be before, as well as after, the of sensation, as by strangling.^
breaking. As a punishment for military offenses, branding
has been used to a very limited extent.
The " intent " must be to commit a robbery, a mur-
der, a rai>e, or other felony, whether the crime be See Brand; Punishment; Witchcraft.
actually perpetrated or not. If such specific intent is Burning fluid. See Oil.
absent the act is a mere " trespass." ^ BURSTING-. In an insurance policy,
Where the accused had himself, concealed in a
chest, transferred to an express car, intending to rob
which excepts a loss from the bursting of a
the messenger, his acts were held to constitute a boiler, synonymous with explosion, q. v.
breaking and entering.* BUSINESS. A word of large significa-
The comraou-law definition has been modified and tion, denoting the employment or occupation
different degrees of the offense have been established, in which a person is engaged to procure a
in some of the States.
See Accessary; Accomplice; Crime; Defense, 1; living. 8
Extradition, 1; Felony; Indictment; Manslaughter. "Business" and "employment" are syn-
BUBIAIi. " Burial ground " and " cem- onymous terms, signifying that which occu-
pies the time, attention, and labor of men for
etery "may be used synonymously. 3
To take up a dead body without lawful authority purposes of a livelihood or for profit. A call-
is a misdemeanor at common law. But there can be
ing for the purpose of a livelihood.' See Em-
no larceny of the body, although there may be of the ployment; Happiness.
shroud.*
Preventing the burial of a dead body is indictable. " Labor " may be business, but it is not necessarily
After interment, control over a body is in the next so; and " business " is not always labor. The making
of kin. If they differ as to the disposition to be made of a contract is business, but not laboV. ^ See Labor. 1 ;
Trade.
of it, a court of equity may not afford assistance to
" Other business," in the expression "works, mines,
either party.*
A stone vault in a cemetery used for the interment manufactory, or other business," is ejusdem generis
of dead bodies, though wholly above ground, is not a with the species of business described by the preced-
ing words, and imports, in a Wages Act, business of
"building" or "other erection or inclosure," within
the meaning of the penal code of New Tork.^ the same general character."
" Ten per cent, on the business " of a partnership
For sanitary reasons, a State may forbid the ex- may mean ten per centum of the result of the business,
humation and removal of a corpse, without a permit
being first procured.^ See Health; Sepulcher. that is, of the profits.'"
Business corporation. In the Bank-
' 4 Bl. Com. 224; Commonwealth v. Glover, 111 Mass. ruptcy Act of 1867, had a broader meaning
402 (1873), cases ; Walker v. State, 63 Ala. 60 (1879), cases. than " trading " corporation ; was held to in-
' Nicjiols V. State, 08 Wis. 416 (1887), cases. clude a railroad corporation, 'i and an insur-
» Jenkins v. Andover, 103 Mass. 104 (1869). ance company 12
* See 28 Alb. Law J. 106-8 (18^3), cases; Se Wong
Tung Quy, C Saw. 442, infra. ' See 40 Ala. 669; 46 Cal. 366; 110 Mass. 403.
» See Be Beekman Street, 4 Bradf. Sur. 502 (1856); Bo- 2 4 Bl. Com. 370.
gert V. Indianapolis, 13 Ind. 138 (1859); Wynkoop v. ' 4 Bl. Com'. 804, 376, 407.
Wynkoop, 42 Pa. 293, 301 (1868); Pierce v. Swan Point < 4 Bl. Com. 222.
Cemetery, 10 E. I. 227, 235 (1872); Craig v. Fu-st Presby. » 4 Bl. Com. 377. See 1 Steph. Hist. Cr. Law Eng.
Church, 88 Pa. 42, 52 (1878); Weld v. Walker, 130 Mass.
423 (1881), cases; Griffith v. Charlotte, cite. R. Co., 23 476-77.
» Goddard v. Chaffee, 2 AUen, 396 (1861), Merrick, J.
S. C. 39-42 (1885), cases; Johnston v. Marinus, 18 Abb. ' [Moore v. State, 16 Ala. 413 (1849); 68 id. SI; 71 id. 62;
N. Cas. 72-77 (1886), cases; 10 Alb. Law J. 70 (1874), 28 N. J. L. 546; 83 N. Y. 844.
cases; 16 Am. Law Eeg. 155 (1877), cases; 24 id. 591-600 8 [Bloom V. Eichards, 2 Ohio St. 396-403 (1853), oases.
(1885), cases; 19 Am. Law Eev. 251-70 (188.5); Bishop, » Pardee's Appeal, 100 Pa. 412 (1882).
Contr. I 237. i» Funck V. Haskell, 133 Mass. 582 (1882).
•People V. Eichards, N. Y. Ct. Ap. (Jan. 17, 1888); >' Adams v. Boston, &c. E. Co., 1 Holmes, 30 (1870);
Pen. Code, §§ 498, 404. Wmter i>. Iowa, &c. E. Co., 2 Dill. 488 (1873).
' Be Wong Yung Quy, 6 Saw. 442 (1880). " Be Independent Ins. Co., 1 Holmes, 104 (1872).
 BUSINESS 143
BY-LAW

While "business " in § 37 of that act had a broader

meaning than the word "commercial," used in the BUY. To acquire by giving a considera-
same section, such scope was not given it as to super-
tion, usually money ; to purchase, q. v.
sede "commercial " and " moneyed," or to leave these To buy 2.a note, as opposed to discount a note, see
Discount,
words without practical signification.'
Business hours. The business hours of Buy in. To cause property to be offered
the community generally.^ at public sale, and then to become the pur-
chaser thereof. See Auction.
The hours when business is ordinarily trans-
acted, down to the beginning of the hours of Buying titles. See Seisin, Disseisin.
rest in the evening, except as to paper pay- Buyer. He who becomes the owner of a
able at a bank or by a banker. ^ thing by paying the price asked ; he who ac-
Business paper. Commercial paper ; ne- quires or purchases ; a purchaser.
gotiable instruments. See Negotiable. See Caveat, Emptor; Eedeem; Sale; Wager, 2.
Business usages. See Custom; Usage. BY. 1. Near, near to; by the side of; be-
side — all denoting exclusion.
Course of business. An act done accord-
ing to the rules or methods which prevail in Used descriptively in a. grant, not " in immediate
contact with," but " near to " the object.'
business generally or in a particular line or " By land of A " means along the line of A's land."
branch of business is said to be done in the A grant of land bounded "by" a fresh- water
stream, whether navigable or unnavigable, conveys
"due," "ordinary,'' "regular," or "usual" tke soil to the middle line of the stream.' See Along.
course of business.
A contractfor the doing of a thing "by " a certain
One who talces commercial paper before its matu- day means on or before that day.* See Day.
rity, and without notice, actual or otherwise, of any
Authorized " by " may mean " in " this State.'
defense thereto, receives the paper in the due course
of business and becomes a holder for value.^ By-bidding. See Bid.
Under the Banlrruptcy Acts sales not made in the By-road. See Way, Private.
usual and ordinary course of the business of the debtor By-standers. See Tales.
were prima facie evidence of fraud on creditors; as, 2. With, through, as the means or mode;
where a retail dealer disposed of his stock at wholesale. ^ as, by the book, by the uplifted hand. See
Place of business. Tiie place where one Oath. Compare Per.
habitually or chiefly transacts his business du- 3. According to; by authority, direction,
ties is his usual or principal place of business. or allowance of: as, by agent, by writing
" Usual place of business " means the place where filed, by the court, by act and operation of
one^s business is carried on openly; the place which
law, by statute, qq. v. See also According ;
has public notoriety as one's usual place of business.'
The "priiicipal place of business "is no test of Force, 2.
residence, either of a natural person or of a corpora- staying proceedings until an issue is determined by
tion.' final judgment in another case may mean to stay the
See Bank, 2 (3); Carrt on; Commerce; Custom; proceedings " according to " the judgment."
Income; Labor, 1; License, 3; Merchant; Profit, 1; 4. May be used instead of " to; " as in the
Reside; Sunday; Tax, 3; Trade.
BUST. See Design, 2.
sentence " a person whose name is not known
BUTCHER. See Peddler; Police, 3; by BY-LAW.8
the complainant."'
1. A law affecting a single
Retailer.
village or township ; a rule governing the
BUTTAL. See Abut.
inhabitants of a locality.
BUTTERINE. See Oleomargarine.
"The by-law [of a borough] has the same effect
within its limits, and with respect to the persons upon
1 Sweatt V. Boston, &c. E. Co., 3 Cliff. 351,(1871).
2 Derosia v. Winona, &c. R. Co., 18 Minn. 154 (1872). ' Wilson V. Inloes, 6 Gill, 1S3 (Md., 1847).
^ Cayuga County Banlj v. Hunt, 2 Hill, 633, 638 (N. Y., = Peasleei;. Gee, 19 N. H. 377 (1843).
1842); Lunt v. Adams, 17 Me. 231 (1840); Hint i>. Rogers, 3 The Magnolia v. Marshall, 39 Miss. 110, 117, 134
15 id. 69 (1833). (1860).
* Brooklyn City E. Co. ii. Nat. Bank of the Republic, * Coouley v. Anderson, 1 Hill, 519, 522 (N. Y., 1841);
102 U. S. 25-28 (1880), cases. Rankin v. Woodworth, 3 P. & W. 48 (Pa., 1831). See
« Act of 1&67, § 35; Walbrun v. Babbitt, 16 Wall. B81 Higley ti. GUmer, 3 Monta. 437 (1880).
(1872), cases. ' State V. Overton, 16 Nev, 149 (1881).
« [Bank of Columbia v. Lawrence, 1 Pet. *B83 (1828); « Haubert v. Haworth, 78 Pa. 83 (1875).
Stevenson v. Primrose, 8 Porter, 155 (Ala., 1838): 33 ' Commonwealth v. Grifftn, 105 Mass. 175 (1870).
Am. Deo. 287. e Scan, byr, a town, a village,— Skeat. A. S.Mlage,
'Guinn v. Iowa Cent. E. Co., 14 P. E. a private law,— Webster. " A law made obiter, or by
McCabe v. Illinois Cent. E. Co., 13 id. 827 the by," Termes de la Lay (1721).
 143
CABLE

whom it lawfully ' operates, as an act of Parliament C. t. a. (usually, c. t. a.). Cum testamento
has upon the subjects at large." ' annexo, with the will attached. See Admin-
2. A rule or law of a corporation for its ister, 4.
own government.
CABINET.
dent. See Department; Presi-
An act of legislation; therefore the formalities re-
quired by the charter for its passage must be ob-
CABIjI!. See Commerce; Telegraph.
served. It may be in the form of a "resolution,"
although that is not necessarily a by-law.* The act of Congress approved February 39, 1888
By-laws are the orders and regulations which a cor- (25 St. L. 41), entitled an act to carry into effect the
poration, as one of its legal incidents, has power to International Convention of March 14, 1834, for the
make, and which is usually exercised to regulate its protection of submarine cables, provides:
own action and concerns and the rights and duties of " Section 1. That any person who shall willfully
its members among themselves.' See Charter, 2; and wrongfully break or injure, or attempt to break
Ordikance, 1. or injure, or who shall in any manner procure, coun-
sel, aid, abet, or be accessory to such breaking or in-

c. jiu-y, or attempt to break or injure, a submarine cable,

in such manner as to interrupt or embarrass, in whole
or in part, telegraphic communication, shall be guilty
of a misdemeanor, and, on conviction thereof, shall be
C. 1. In connection with references to
hable'to imprisonment for a term not exceeding two
statutes means chapter. See Statute, 2. years, or to a fine not exceeding Ave thousand dollars,
a. In Rhode Island, as late as 1785, was branded or to both fine and imprisonment, at the discretion of
upon the forehead as part of the punishment for coun-
terfeiting. the " court."
Sec. 2. That any person who by culpable negli-
3. As an abbreviation, may also denote gence shall break or injure a submarine cable in such
manner as to interrupt or embarrass, in whole or in
case, chancellor, chancery, chief, circuit,
part, telegraphic communication, shall be guilty of a
civil, code, commissioner, common, counsel, misdemeanor, and, on conviction thereof, shall be
court, criminal, crown: liable to imprisonment for a term not exceeding three
months, or to a fine not exceeding five hxmdred dollars,
C. A. Chancery appeals ; court of ap-
or to both fine and imprisonment, at the discretion of
C. A. v. Curia advisari vult. The court
the Sec.
com't." 3. The foregoing sections shall not apply to a
wishes to consider the^ matter. See further person who breaks or injtires a cable in an effort to
CuKiA, Advisari, etc. save life or limb, or to save his own or any other ves-
C. B. Chief baron ; common bench. sel: Provided, that he takes reasonable precautions
to avoid such breaking or injury.
C. C. Cepi corpus; chief commissioner ;
" Sec. 4. That the master of any vessel which, while
circuit, city, or county court ; chancery, civil, engaged in laying or repairing submarine cables, shall
criminal, or crown cases ; civil code. fail to observe the rules concerning signals that have
C. C. J. Circuit, city, or county court been or shall hereafter be adopted by the parties to
the convention with a view to preventing collisions at
judge. sea: or the master of any vessel that, perceiving, or
O. C. P. Code of civil procedure: court being able to perceive the said signals displayed upon
of common pleas. a telegraph ship engaged in repairing a cable, shall
C. D. Commissioners' (patent) decisions. not withdraw to or keep at a distance of at least one
C. J. Chief justice ; circuit judge. nautical mile; or the master of any vessel that seeing
O. J. B. Chief judge in bankruptcy. or being able to see buoys intended to mark the posi-
tion of a cable when being laid or when out of order
C. Ii. Civil law ; common law. or broken, shall not keep at a distance of at least a
C. L. P. Common law procedure. quarter of a nautical mile, shall be guilty of a mis-
C. O. D. Collect (q. v.) on delivery. demeanor, and on conviction thereof, shall be lia-
O. P. Common pleas (court). ble to imprisonment for a term not exceeding one
C. q. t. (or c. q. t). Cestui que trust, q. y. month, or to a fine of not exceeding five hundred
C. R. Chancery reports ; curia regis, the Sec. 5. The master of any fishing vessel who shall
dollars."
king's court. not keep his implements or nets at a distance of at
least one nautical mile from a vessel engaged in lay-
1 HopWns V. Mayor of Swansea, 4 M. & W. *640 (1889), ing or repairing a cable, or at a distance of at least a
Ld. Abinger, C. B. quarter of a nautical mile from a buoy intended to
s Drake v. Hudson River R. Co., 7 Barb. 539 (1849).
mark the position of a cable when being laid or when
Compare Compton v. Van Volkenburgh, &c. R. Co., out of order or broken, shall be guilty of a misde-
34 N. J. L. 135 (1870). meanor, and on conviction be liable to imprisonment
"Commonwealth «. Turner, 1 Cush. 496 (1848), for a term not exceeding ten days, or to a fine not ex-
Shaw, C. J. ceeding two hundred and fifty dollars, or to both fine
 CABLE Ui CALL

and imprisonment, at.the discretion of the court: Pro- in the district court for any district within which the
vided, hoioever, that fishing vessels, on perceiving or defendant may be found and shall be served with pro-
being able to perceive the said signals displayed on a cess.
telegraph ship, shall be allowed such time as may be CADET. See Graduate.
necessary to obey the notice thus given, not exceeding Naval cadets, by settled usage which has the force
twenty-four hours, during which period no obstacle of law, are appointed by certificates under the hand
shall be placed in the way of their operations. and seal of the secretary of war. They are inferior
Sec. 6. A person commanding a ship of war of the
^officers who, for purposes of instruction, may be re-
United States or of any foreign state for the time
quired to, serve as officers, non-commissioned officers,
being bound by the convention, or a ship specially
commissioned by such government or state, may exer- or privates. ^
cise and perform the duties vested in and imposed on
CADIT. See Qu^stio, Cadit.
suqh officer by the convention. C-^TEE.A. See Administer, 4; Et, Etc.
Sec. 7. Any person having the custody of the pa- CALENDAR. 1. The division of time
pers necessary for the preparation of the statements into years, months, weeks, and days, and a
provided for in article ten of the convention who shall
refuse to exhibit them or shall violently resist persons
register of them.
The pontifex maximus on the first of every month
having authority according to said article to draw up
proclaimed — Lat. catare — the month, with its festi-
statements of facts in the exercise of their functions,
vals and the time of the'new moon. From calare was
shall be guilty of a misdemeanor, and on conviction
derived " calendar." The first day of the month in the
thereof shall be liable to imprisonment not exceeding
Roman calendar was called the calendoe, the calends.^
two years, or to a fine not exceeding five thousand dol-
Calendar month. A solar month, known
lars, or to both fine and imprisonment, at the discre-
tion of the court. as January, February, etc. ; distinguished
Sec. 8. The penalties provided for the breaking or from a lunar month of twenty-eight days.
injury of a cable shall not be a bar to a suit for See further Month.
3. A list of causes arranged for trial or ar-
Sec. 9. "When an offense against this act shall have
been committed by means of a vessel, or of any boat gument; alist; a docket. 3
belonging to it, the master of such vessel shall, unless The calendar Of a criminal com-t gives the names of
some other person is shown to have been in charge, offenders and prosecutors, the nature of the charges,
be deemed to have been navigating the same, and be from what magistrates certified, numbers and terms
liable to be punished accordingly. of the cases, and like particulars.
Sec. 10. Unless the context of this act otherwise The calendar of a civil court contains the names of
the parties plaintiff and defendant, the names of
requires, the term "vessel" shall be taken to mean counsel, the nature of the demand in each case, the
every description of vessel used in navigation, in what-
defense or plea, the number and term of the case, and,
ever way it is propelled; " master" every person hav- in courts of review, the name of the lower court from
ing command or charge of a vessel; and "person" which removed.
to include a body of persons, coi-porate or incorpo-
rate. "Convention " shall mean the International Con- CALIFORIfl'IA. See Chinese; Pueblo.
vention for the Protection of Submarine Cables, made CALL. 1, V, (1) To require a prisoner to
at Paris, May 14, 1884, and proclaimed by the President present himself and answer the indictment,
of the United States May 23, 1885.
Sec. 11. The provisions of the Revised Statutes, in the immediate presence of the court, is to
from § 4300 to 4305 inclusive, for the simamary trial call him to or before the bar.* See Arraign.
of offenses against the navigation laws, shall extend (3) To admit to the rights and privileges of
to offenses against sections four and five of this act.
a practitioner of law is to call a student-
Sec. 12. This act shall apply only to cables to at-law to the bar.
which the convention for the time being applies.
Sec. 13. The district courts of the United States In England, _" call-day" is the day in each term
when those who have been students are admitted to
shall have jurisdiction over all offenses against this
act and of all suits of a civil nature arising there- practice law.
under, whether the infraction complained of shall Call a case. For a judge to announce
have been committed within or outside of the territo- that a cause is about to be placed on a par-
rial waters of the United States: Provided, that in ticular list, or to proclaim that a cause on
case such infraction is committed outside of said
waters the vessel is a vessel of the United States.
From decrees and judgments, appeals and writs of 1 Babbitt v. United States, 16 Ct. CI. 203, 215-17 (1880).
error shall be allowed as now provided by law in other See United States v. Morton, 112 U. S. 1, 3 (1884). As to
cases. Criminal actions and proceedings shall be pros- cadet-engineers, see also United States v. Redgraye,
ecuted in the district court for the district within which 116 id. 474 (1886); United States v. Perkins, ih. 483 (1886).
the offense was committed, and when not committed a Rives V. Guthi-ie, 1 Jones L. 86-87 (N. C, 1853),
within any judicial disti^ict, then in the district court Nash, C. J.
for the district within which the offender may be B See Titley v. Kaehler, 9 Bradw. 539 (1881).
foimd; and suits of a civil nature may be commenced 4 [4 Bl. Com. 322.]
 CALL 145 CANAL

such list may now be determined by a trial (2) A designation of the limit of a boundary.
by a jury or by argument before the court. A "locative call" refers to a physical ob-
Call a list or docket. To inquire pub- ject rather than to a course or distance. See
licly in open court as to what causes on a list further Botjndaey.
are ready for trial ; also, to call for trial or CALLING. See Business.
argument certain causes already set or fixed CAMP-MEETING. See Woeship.
for such determination.! The Massachusetts statute of 18S7, c. 57, which pro-
Whence, m the practice of some courts, the " first," hibits aperson, during the time a camp or field meet-
the " second," and perhaps the " third " call of a case ing is being held for religious purposes, and within
or list; also "the call." one mile of the place, from maintaining a building for
Call a jury. To draw the names of per- vending provisions or refreshments without permis-
sion of the officers of the meeting, and which provides
sons to serve as a jury, out of the names of that a person having a regular and established place
all of those who have been summoned as of business shall not be required to suspend his busi-
jurors. ness, isconstitutional,!
Call a party. To call aloud his name in The Pennsylvania act of May 8, 1878,' prohibits dis-
open court, and to command him to appear posing ofany kind of merchandise, within one mile of
any camp-meeting held for religious worship, under a
in order to perform some duty. fine of not more than one hundred dollars or impris-
Call the plaintiflF. At common law, onment of not more than six months, or both; the
when counsel for the plaintiff perceives act not applying to persons having written pennit
that his client has not made out a case, the from the managers of the meeting, nor to persons
regularly engaged in business, nor to farmers who
client may withdraw from the court room: sell the products of their farms upon the same. And
whereupon the crier is required to call the the act of March 83, 1876," provides that a judge of the
plaintiff. If he does not answer the call court of common pleas of the particular county may
(made thrice in succession), judgment of appoint as policemen such persons as the association
nonsuit is entered. ^ may designate; each to possess the powers of a con-
The nonsuit is more eligible for the plaintiff than a stable; to enforce obedience to all reasonable regula-
tions of the association not inconsistent with the
verdict against him.^ constitution and laws of the State; to detain offenders
Call a witness. To call his name aloud twelve hours, if need be, exclusive of Sunday, until
in, and perhaps about, the room of the court they can be carried before the nearest justice of the
at which he has been subpoenaed to appear, peace; and to wear a metallic shield with "camp
before an attachment issues for disobedience. police" and the name of the association inscribed
thereon, in plain view — except when employed as
Also, to present a witness for examination detectives.
in a trial or hearing then in progress.
CAMPBELL'S ACT. See Actio, Per-
Hecalling a witness, who has been once examined sonalis, etc.
and dismissed. Is a matter almost wholly within the
discretion of the trial court.* See Produce, 1. CAN. Compare Case, 4.
2, n. (1) A notice or demand by the direct- CANAL. Applied to an artificial passage
ors of a stock corporation upon a subscriber for water, includes the banks, and refers to
to pay money on account of his shares. the excavation or channel as a receptacle for
The word may refer to the resolution, its
notification, or the time when it becomes theAs water.''
used in an Internal Improvement Act, a navi-
gable public highway, for the transportation of persons
payable. < and property. . . There must be a canal fitted in
A court of equity may enforce payment of stock all respects for navigation and open to public use be-
subscriptions though there have been no calls for fore benefits can accrue to the owner to overcome his
them by the company. . . Subscriptions are in the
nature of a fund for the payment of debts, and calls claim for damages.'
The title of owners of land abutting on a canal ex-
may be made whenever funds are needed for such tends to the line of the canal, subject to the use of the
payment. . . A formal call need not be made before bank by the owners of the canal for purposes of
a bill in equity is filed: filing the bill is equivalent to
a, call.' See Put, 3; Stock, 3 (3). commerce.*
»1 P.
Commonwealth
L. 63. v. Bearse, 132 Mass. 548, 551 (
•See Blanchard v. Ferdinand, 132 Mass. 391 (1882). s P. L. 9.
2 [3 Bl. Com. 376.
'Keating v. Brown, 30 Minn. 10 (If 3 3). ' Bishop V. Seeley, 18 Conn. *394 (1847).
'Ambergate, &o. E. Co. u. Mitchell, 4 Ex. E. *543 s Kennedy v. City of Indianapolis, 103 U. S. 604 (1880),
(1849), Parke, B. Waite, C. J.
'Hatch V. Dana, 101 U. S. 214-15 (1879), Strong, J. « Morgan v. Bass, 14 F. E. 454 (
(10)
 146
CANCEL
CAP

A general grant of premises upon the bank of a Cancellation destroys a deed, annulling all cov-
liver, in -whicli is constructed a canal, conveys the enants, as far as the deed is executory. It will not
grantor's right to the river's center. Where the canal revest in the grantor an estate once completely trans-
company, as such, has the right only to use the bed ferred to another.!
and water, at dissolution such right reverts to the " Canceling an executed contract is an exertion of
proper owners.^ the most extraordinary power of a court of equity.
Navigable water situated as is the Illinois and Lake The power ought not to be exercised except in a clear
Michigan canal, — a highway for commerce between case, and never for an alleged fraud unless the fraud
ports and places in different States,— is public water be made clearly to appear; never for alleged false
of the United States, within admiralty jurisdiction, representations unless their falsity is certainly proved,
although the canal is wholly within the body of the and unless the complainant has beeti deceived and in-
State of Illinois." jured by them." = See Patent, 2.
See Commerce; Toll, 2,
Compare Null; Rescission; "Vacate; 'Void.
CATTCEL.s 1. To dra-w lines over the face CANDIDATE. One who seeks or aspires
of an instrument, in the forms of lattice- to some office or privilege, or who offers
work. 3. To oblitei-ate, deface, efface, ex- himself for the same.
punge; to do away with, set aside, strike In a constitutional provision that any person who,
while a candidate for office, shall be guilty of brib-
out of existence. 3. To satisfy, pay. ery, etc., is used in that popular sense; any one who
A deed may be rendered of no effect by delivering
it up to be canceled; that is, to have lines drawn over seeks an office, whether nominated or not.^
See Bribery; Legal, Illegal; Libel, 8; Lxbeety, 1,
it in the form of lattice-work: though 'the phrase is Of the press. '
now used figuratively for any manner of obliteration
or defacing it.*
CANISTER. See Case, 4.
To draw cross-lines over the face of an instrument CAJSrON.4 A rule ; a law.
is a common mode of showing an intention thereby to Canon law. Ecclesiastical law.
make an end of it as an instrument in force. In earlier
In particular, a body of ecclesiastical laws
times, when few persons could lyrite, the mass of men relative to matters over which the church of
could manifest their intention, with pen and ink, only
by unlettered marks. . . When the instrument is so Rome had or claims to have had jurisdiction.'
marked by the maker as to show clearly that the act CompUed from opinions of the fathers, decrees of
was designed to be a canceling, that act becomes councils, and decretal epistles and bulls of the holy
effectual as a revocation of a will by canceling.' see. Received, in England, by immemorial custom,
Cancel is not a technical word. In a statute of wills or else by consent of parliament; otherwise, ranked as
it is presumed to retain its popular meaning. . . A unwritten law.'
canceled bond or note has meant exclusively a bond Canons of construction. Rules of con-
or note over which lattice-work lines have been drawn. struction, q.V.
. . Revocation of a will by cancellation means by Canons of descent or of inheritance.
any act done to the paper which, in common imder-
The rules which regulate the descent of in-
^nding, is regarded as cancellation when done to any-
other instrument.^ heritances the
; rules according to which
In a contract, may not be equivalent to rescind; estates are transmitted from ancestor to
may mean no more than " doing away with " an exist- heir. 6 See further Descent.
ing agreement upon the terms, with the consequences, CAP. When a person, who has been sen-
mentioned.'"'
Cancellation will be ordered, by a court of equity, tenced to capital punishment by hanging, is
of a writing which was obtained without considera- about to be executed, it is customary to
tion, or which became a nullity, or which may cause place over his head and neck a sack or bag,
injury to the plaintiff, or be used to vex him after the which, from the color of the material, is
evidence to impeach it has been lost, or which may
throw a cloud over histitle.^ called the white cap or black cap, and,
' Day v. Pittsburgh, &c. B. Co., 44, Ohio St. 418 (1886); generally,
In Englandtheand" Canada, death cap."
when a judge formally
Pittsburgh, &o. R. Co. v. Bruce, 102 Pa. 33 (1882). passes sentence of death upon a prisoner, he usually
a Exp. Boyer, 109 U. S. 682 (1884).
SL. L. cancellare, to draw lines across: L. canceHi, 1 See 4 Kent, 452; 1 Greenl. Ev. § 265.
lattice-work. Compare Chahobry. a Atlantic Delaine Company v. James, 94 U. S. 214
' 2 Bl. Com. 309. (1876), Strong, J. Approved, Union E. Co. v. Dull,
124 id. 188 (1888), Harlan, J.
« Warner -u. Warner's Estate, 87 Vt. 362-68 (1864). >
« Evans's Appeal, 58 Pa. 843-44 (1868), Strong, J. See ' Leonard v. Commonwealth, 112 Pa. 624 (1886): Web-
ster; Const. Penn. Art. Vni, sec. 9.
also Ladd's Will, 60 Wis. 189-99 (1884), cases, Casso-
day, J. * Gk. kanon', a reed, rod, rule.
'WiutouD. Spring, 18 Cal. 455 (1861); Weill). Jones, n Bl. Com. 88, 79, 19. See 2 Steph. Hist. Cr. L. Eng.
53 id. 47 (1878). 440; 85 Hen. Yin, c. 19; 1 Eliz. c. 1.
8 1 Story, Eq. §§ 692-711 ; 17 Blatch. 145. • 2 Bl. Com. 208.
 147
CAPACITY CAPERE

wears a "black cap." Some writers trace the prac- Serves the purpose of compelling an appea
rance in
tice tothe ancient custom by which rulers covered the court, on the part of a defendant, in action
head on occasions of great solemnity; while other which damages are claimed, as, in actions s of tort, in
for slander
writers find its origin in a prohibition against persons hbel, false arrest, malicious prosecution,
and other
m holy orders (from which class the judges were trespasses. Being the species of the writ
most fre-
largely selected) imposing the death penalty -as of- quently issued, is often
ficials ofthe church. Since it was obligatory that capias." i See Process, 1. designated as a or the
such sentences should be pronounced, the judges Cfflyims rrrf intisfaciendum. That you take
such occasions, were supposed to lay aside their on
ecclesiastical character by "covering the clerical for satisfying: arrest (and imprison) the de-
fendant so that you may have him in court
tonsure " with the
days wore as a part black cap which
of their official all judges
dress i in early on a given day, in order that he may then
CAPACITY. AbUity to take, do, act: and there pay the plaintiff such debt, dam-
competency, qualification, fitness, power. ages, and costs as he may recover. Abbre-
See Capax. viated ca. sa.
1. Power or fitness to perform a particular At common law, after this writ no other process
could be issued against a debtor's property. The
legal act ; mental qualification : as, capacity early use of the writ has been restricted by statutes
to enter into a contract, disposing or testa- aboHshmg unprisonment for debt or facilitatmg the
mentary capacity. discharge of debtors, in cases in which no fraud is
Capacity for guilt: will joined with an act." shown to have been practiced.^
The test of capacity to make an agreement or a Capias in withernam J That you take in
conveyance is, that a man shall have the ability to reprisal ; that you distrain for a distress.
understand the nature and effect of the act in which
A writ for seizing property of a distrainor on ac-
he is engaged.' See Influence.
count of property concealed, eloigned, or otherwise
3. Character or function, relation or office, withheld by him so that it could not be replevied.* See
invested or confeiTed by law: as, capacity Eloign.
to 'act as an executor, administrator, guard- Capias utlagatum. That you arrest the
ian, trustee, referee, judge, sheriflf, or other outlaw, q. V.
officer. Cepi. I have taken, or arrested. The
Whence also flduciaiy, judicial, ministerial capac- distinctive word in old Latin forms of re-
ity; professional capacity; men in public capacity — turns of service to orders for making arrests.
see Libel, 5; Descriptio, Personae.
CAPAX. L. Receiving or containing: Cepi corpus. I have taken the body,— ar-
rested the defendant. Abbreviated C. C.
able, fit for ; having capacity, q. v.
Cepi corpus et bail bond. I have arrested
Capax doli. Competent to intend wrong, the defendant and discharged him on a bail
to commit a crime. Doli incapax: incapa-
bond. Abbreviated C. C. et B. B.
ble of committing crime. See further Dolus.
Capax negotii. Competent to transact Cepi corpus et committitur. I have arrested
business. and imprisoned the defendant. Abbreviated
C. C. et C.
CAPERE. L. To take, seize; to arrest.
Capias. That you take. A common-law Cepi corpus et est eustodia. I have arrested
writ commanding the sherifE to take a de- the defendant and he is in custody.
fendant into custody. Cepi corpus et est languidus. I have ar-
Named from the emphatic word in the writ when rested the defendant and he is sick. See
expressed in Latin. Languidtjs.
Has come to designate the whole class of Cepi corpus et paratum habeo, I have ar-
writs by which arrests are made by a con- rested the defendant and have him in readi-
stable, sheriff, or marshal. The species are: ness. See -AjiREST, 2 ; Bail, 1 (2).
Capias ad respondeiidum. That you take Cepit. , He took. The emphatic word in
for answering : arrest (and imprison) the de- the Ijatin writs of trespass for taking person-
fendant so that you have him in person alty, and in declarations in trespass and re-
before the court on a certain day to answer plevin. Still used as descriptive of the action,
the plaintiff's complaint. > See 3 Bl. Com. 414.
« See 4 Bl. Com. 319.
> See 23 Am. Law Eev. 121 1 ' With'-er-nam is A. S. vndlier, against, and niman,
» i Bl. Com. 80. to seize.
» Eaton V. Eaton, 37 N. J. L. 113 (1874); 2 Bl. Com. 230. <See3Bl. Com. 149.
 CAPIAS 148
CAPTUEE

as in replevin for a mere taking — when the its use, consists the profits made in the busi-
action is said to be " in the cepit." See Non
Cepit. nes , i not, any more than when used with respect
It does
Cepit et abduxit. He seized or took and to corporations, embrace temporary loans in the regu-
lar course of business. ' See Moneyed.
led away — a person, or a living chattel.
" Capital stock," or " shares of capital stock," signi-
Cepit et asportavit. He took and carried fies the sum upon which calls may be made upon the
away — an inanimate thing, goods. See As- holders of the stock of a corporation, and upon which
portare; Carry, 1. dividends are declared.'' See further Stock, 3 (a).
Cepit in alio loco. He took in another CAPITATION. See Tax, 2.

place — than that declared npon. A plea in CAPTION". 1. A taking, a seizure, q. v.;
replevin justifying the taking and claiming an arrest ; a capture, q. v. See also Capeeb.
a return. Kecaption. When any one deprives an-
Non cepit. He did not take. The general other of his personal property, or wrongfully
issue in replevin : denies taking and detaining. detains his wife, child, or servant.'
CAPIAS. See Capehe, Capias. The owner of the good^, and the husband, parent,
or master, may claim and retake them wherever he
CAPITA. See Caput, Capita. finds them, so that it be not attended with a breach of
CAPITAIi.i 1, adj. For which death is the peace. The owner may have this only opportu-
the penalty : as, a capital oflEense. nity to do himself justice.' See Defense, 1.
Probably from "decapitation," once a common 3. The heading of a legal document, in
mode of executing, the sentence of death. which is shown the time when, the place
Those judgments are capital which extend to the
where, and the person by whose authority,
life of the offender, and consist, generally, in his being
hanged by the neck till dead.' See Death, Penalty. it was prepared or executed.
This use of the word is not warranted by its deriva-
3, n. Money or property invested in a busi-
tion— captio, a taking, and not caput, a head; but it
ness enterprise. is quite common in law books.
The actual estate, whether in money or Though usual, is not necessary to an affidavit.*
property, which. is owned by an individual when an inferior court, in obedience to the man-
or a corporation.' date of the king's bench, transmitted an indictment to
The chief thing, the head, the beginning and basis the crown office, it was accompanied with its history —
naming the court in which, the jurors by whom, and
of an imdertaJdng or enterprise. . . "Capital "and the time and place when and where, it was found.
"capital stock," in ordinary parlance, when applied All this was entered of record by the clerk of the
to combinations or associations for transacting busi-
ness, have the same meaning, the former being an superior court immediately before the indictment, and
abbreviation of the latter.* was called the " caption," but was not then and is not
now a part of the indictment itself.*
Used with respect to the property of a cor- See Affidavit; Commence, Indictment; Title, 2.
poration or association, the term "capital" CAPTURE. A taking, seizure. See
has a settled meaning. It applies only to the Capere.
property or means contributed by the stock- In the law of marine insurance, any un-
holders as the fund or basis for the business
lawful taking by force, including a piratical
or enterprise for which the corporation or as-
taking as well as such as is made jure belli.^
sociation was formed. . . Eef eiTing to the Synonymous with prize (g. v.), as used in Europe.
property of individuals in any particular The popular use of a taking by force or violence from
business, the term has substantially the same without, to which a vessel in the course of a maritime
adventure might be exposed, corresponds with the use
import. It then means the property taken
in marine insurance."
from other investments or uses and set apart A taking by the enemy of a vessel or its
for and invested in the special business, and
cargo as prize, in time of open war, or by
in the ihcrease, proceeds or earnings of which
property, beyond expenditures incurred in
' Bailey v. Clark, 21 Wall. 886-87 (1874), Field, J.
" Sanger v. Upton, 91 U. S. 60, 47 (1875), Swayne, J.
' L. capitalis, chief: caput, the head. s [3 Bl. Com. 4.
»4B1. Com. 376. * Harris v. Lester, 80 III. 311 (1875).
3 People V. Commissioners, 83 N. Y. 219 (1861), Come- 'People V. Bennett, 37 N. T. 182 (1867); Exp. Bain,
stock, C. J. 121 U. S. 7 (1887): Starkie, Cr. PI. p. 287.
* San Fi-anoisco v. Spring Valley Water Works, 63 'Dole V. New England Mut. Mar. Ins. Co., 6 Allen,
Cal. 539 (1883), Thornton, J. ; Gas Light Co. v. Assessors, 3S6-90 (1863), Bigelow, C. J. See Hfleld v. Ins. Co. of
31 La. An. 477 (1879), Manning, C. J. Penn., 47 Pa. 176-77, 189 (1864), cases.
 149
CAPUT
CAEB

way of reprisal, with intent to deprive the quantity contemplated could be made certain by aver-
owner of it.i ment and proof.' See also Carriage, 1."
This was probably the primary Idea in instruments CARDS. See Game, 3. '
of marine insurance. Losses of ships and cargo en- CARE. Attention, caution, circumspec-
gaged in commerce, by the public enemy, were the tion, vigilance, diligence.
most to be apprehended and provided against. But Due care. In cases where the gist of the
usage, and the course of decisions by the courts, have
very much widened this meaning, and it now may action is negligence, implies not only that a
embrace — party has not been negligent or careless, but
The taking of a neutral ship and cargo by that he has been guilty of no violation of
a belligerent jure belli; also, the taking forci- law in relation to the subject-matter or trans-
bly by a friendly power, in time of peace, action which constitutes the cause of action.2
and even by the government itself to which Great care. The degree of attention
the assured belongs, i which a very thoughtful man exercises
Technically, a taking by military power; toward securing his own interests.
a seizure, a taking by civil authority. 2 Ordinary care. That degree of care
" Captured property " may mean property seized which every person of ordinary iDrudence
or taken from hostile possession by the military or takes of his own concerns.'*
naval forces of the United States.'
In the law of bailment, that degree of care
As to recapture, see Postliminy. See
also Eansom. which, under the same circumstances, a per-
son of ordinary prudence would take of the
CAPUT. L. Ahead, the head; an indi-
vidual. particular thing were it his own.^
Ordinary care, skill, and diligence is such a
^stimatio capitis. The value of a head :
the worth of a life. degree of care, skill, and diligence as men of
In Saxon law, a prescribed sum to be paid for an ordinary prudence, under similar circum-
unlawful taking of another man's life. In modem stances, usually employ.5
law, the amount of damages recoverable for causing Ordinary care implies the exercise of reasonable
a death. diligence, and reasonable diligence, as between a cor-
poration and its employees, implies such watchfulness,
Capita. Heads: bodies; individual per- caution, and foresight as, under all the circumstances
sons.
of the particular service, a coi*poration controlled by
Per capita. By heads: according to the careful, prudent officers ought to exercise.*
individuals. Opposed, per stirpes, by the The same degree of care which a railroad company
ancestor. should take in providing and maintaining its machinery
In distributing the personalty of an intestate, the must be observed in selecting and retaining its em-
persons entitled thereto are said to take per capita ployees, including telegraphic operators. Ordinary
when they claim in their own rights as in equal degree care on its paii; implies, as between it and its employ-
of kindred, and not in right of another — per stirpes. ees, not simply the degree of diligence which is cus-
This rule of succession was borrowed from the civil tomary among those intrusted with the management
law. The common-law rule was the per stirpes rule.* of railroad px'operty, but such as, having respect to
the exigencies of the particular service, ought reason-
Caput lupinum. A wolf's head : .an out- ably to be observed. It is such care as, in view of the
lawed felon — who might be knocked on the consequences that may result from negligence on the
head like a wolf.^ part of employees, is fairly commensurate with the
Caput mortuum. A dead head : a mat- perils or dangers likely to be encountered. . A
ter of no legal validity ; a thing void as to all degree of care ordinarily exercised in such matters
may not be due, or reasonable, or proper care, and
persons and for all purposes. ^ therefore not ordinary care, within the meaning of
CAB. See Caebier, Common ; Railkoad.
Car load. A contract for a certain number of car the law."
loads of ice was held not void for uncertainty, that the 1 Schreiber v. Butler, 84 Ind. 576 (1882).
2 Jones V. Inhabitants of Andover, 10 Allen, 20 (1865),
1 Mauran v. Alliance Ins. Co., 6 Wall. 10 (1807), Nel-
Bigelow, C. J.
son, J. » 2 Pars. C'ontr. 87, tit. Bailment.
2 United States v. Athens Armory, 2 Abb. C. C. 137 4 [Heathcock v, Pennington, 11 Ired. L. 643 (1850),
(1868). Eufttn, C. J.
s United States v. Padelford, 9 Wall. 540 (1869). ' Brown v. Lynn, 31 Pa. 513 (1858), Williams, J.
4 See 2 Bl. Com. 517, 218; 49 Conn. 222; 143 Mass. 239; » Wabash Ry. Co. 1). McDaniels, 107 U. S. 460-61 (1882),
91 N. Y. 446-47. Harlan. J. See also 26 Ind. 197; 74 Me. 497: 104 Mass.
« 4 Bl. Com. 320. 104; 132 id. 426; 58 N. H. 528; 10 Oreg. 254; 41 Eng. C.
«See96U.S. 195-96. Law, 425.
 150
CARGO
CAEEIER

Eeasonajble care. The care and fore- as understood by people in general. In a bill of lading
sight which men of ordinary prudence are therefore, a " carriage " will not include a street car.'
See Bicycle; Carrier; Pbeight; Vehicle.
accustomed to employ.'
Care exercised in proportion to the danger 2. Manner of carrying one's self, behavior.
See Behavior; Lascivious.
of doing harm to others.^
A relative term, with no ftxed meaning. The caution CARRIER. One who engages to trans-
which persons of ordinary prudence would exercise in port persons or property.
any given case is "reasonable care" in law. That Common carrier. One whd undertakes,
care which under some circumstances would be rea-
for hii-e or reward, to transport the goods of
sonable care might imder other circumstances be
such as choose to employ him, from place to
gross negligence.*
Slight care. The degree of care which place. 2 Private or special carrier. One
every man of common sense, though inat- who agrees in a special case, with some pri-
tentive to his own affairs, applies to them.* vate individual, to carry for hire.^
See further Carrier; Caution; DiLieBNCs; Ddtt, 1; A common carrier holds himself out "in
Knowledge, 1; Negligence; Prudence. common," that is, to all persons who choose
CARGO. Goods on board of a vessel." to employ him, as ready to carry for them.'
All the merchandise and effects laden on If it is his legal duty to carry for all alike,
board a ship, exclusive of persons, rigging, who comply with the terms as to freight,
ammunition, provisions, guns, etc. What is etc., he is a common carrier; if he may
laden on board as merchandise. ^ carry or not, as he deems best, he is but a
Generally speaking, the entire load of the private individual, and may make such con-
ship.' tracts as suit himself.*
See Bottomry; Charter-party; Collision, 2; Dis- A private carrier, like an ordinary bailee for hire, is
patch; Hypothecate; Sail; Salvage; Ship, 2. only liable for the injury or loss of the goods intrusted
CAEICATURE. See Libel, 5. to him when it results from the failure of himself or
CAKLISLE TABLES. See Table, 4. his servant to exercise ordinary care. He is not
bound to carry for any person unless he enters into a
CARN"AL. See Knowledge, 3. special agreement to do so.^ He is not an insurer, but
CARPENTER. See Conteactor ; Man- must use care and skill.^ The bailor must prove neg-
ufacturer. ligence.
CARRIAGE. 1. The act of carrying: A common carrier is bound to carry for all who
offer such goods as he is accustomed to carry, and who
transportation, conveyance; also, "that which tender reasonable compensation for carrying them.
carries or conveys. If he refuses to perform his obligation in this respect
To the ordinary mind, does not convey the idea of he may be held liable in damages.'
a railroad or street railway car, nor of a wheeled Common carriers are classified as carriers of goods
vehicle for the transportation of merchandise or prod- or merchandise, and as carriers of passengers. Their
ucts used in ordinary business. The idea is a vehicle oflace is quasi public: the public have an interest in
for the transportation of persons for pleasure or busi- the faithful discharge of the duties. Their property,
ness, drawn by horses or other draught animals over being devoted to a pubhc use, may be regulated by
the ordinary streets and highways of the country, and
the legislature.'
not that of a "car" used upon a railroad or street I. Common Carrier of Goods or Merchandise. To
railway expressly constructed therefor. As yet, in
him "common carrier" and "carrier" are applied
this country, the" vehicles used for transporting pas- by way of pre-eminence. His relation, at common
sengers on railroads and street railways are generally law, is that of insurer against all losses except such as
called cars, occasionally coaches; seldom, if ever, result from an act of God or of the public enemy.
carriages. The deflpition given by the older lexicog- As against any other cause of loss, the law conolu-
raphers of " carriage " was very general and indefi-
nite, while that given in our own times is more in
consonance with the restricted meaning of the word 1 [Cream City R. Co. u. Chicago, &c. B. Co., 63 Wis.
97 (1885), Taylor, J.
I [Johnson v. Hudson Eiver R. Co., 6 Duer, 646 (1837). ' Dwight V. Brewster, 1 Pick. '53 (1882), Parker, C. J.
= Dexter v. McCready, 54 Conn. 172 (1886), Park, C. J. = Allen V. Sackrider, 37 N. Y. 342 (1867), Parker, J.
' Read V. Morse, 34 Wis. 318 (1874), Lyon, J. See also See also 3 Wend. 161; Story, Contr. § 752, a.
100 U. S. 195; 1 Flip. 13. * Piedmont Manuf . Co. v. Columbia, &c. R. Co., 19 S. C.
' [3 Pars. Contr. 87; 20 N. Y. 69. . 364 (1883), Simpson, C. J.
0 Seamans v. Loring, 1 Mas. 142 (1816), Story, J. » Varble v. Bigley, 14 Bush, 702-6 (1879), cases.
» [Thwing V. Great West. Ins. Co., 103 Mass. 406-7 'The Margaret, 94 U. S. 497 (1876), oases. See also
(1869), cases. Gray, J. 25 Am, Law Reg. 451-61 (1886), cases.
'Macy u. Whaling Ins. Co., 9 Meto. 366 (1845); 113 ' See Munn v. Illinois, 94 U. S. 113, 130 (1876). See
U. S. 49. generally 1 Sm. L. Cas. 406-41, cases.
 151
CARRIER CARRIER

sively presumes negligence on his part — a rule which fort and safety of the passengers. Tor non-compli-
proceeds upon the ground of public policy. He and ance with a proper regulation, he may expel a pas-
his employer are not on equal terms: the prop- senger. Each passenger is to take at least ordinary
erty iswithm his power, and it would be difficult for care of himself. The carrier is expected to exercise
the owner to prove misconduct. He may limit the the highest degree of vigilance — he represents that
operation of this rule by a special agreement — just all the means of conveyance are sound, and that his em-
and reasonable in itself, not against legal policy, and ployees will use the utmost of human foresight toward
not exempting him from liability for negligence or preventing accidents and securing a safe journey."
misconduct.^ The engagement of a railroad company is to carry
Toward avoiding the effects of an overpowering its passengers safely; for an injury arising from a de-
cause, ordinary diligence only is exacted. ^ fect in its road, which could have been guarded against
He may regulate his business by such rules as are by the exercise of proper care, it will be liable in dam-
in themselves reasonable, consistent with law and ages. Though a carrier of passengers is not, like a
public policy, and distinctly made known to shippers.' carrier of property, an insm'er against all accidents
For a reasonable cause he may refuse to receive except those caused by an act of God or the public
goods. enemy, it is charged with the utmost care and skill in
The common law does not require him to charge the performance of its duty; which implies not merely
equal i-ates for can-iage.* the most attention in respect to the movement of cars,
He has a right to know both the general nature and but to the condition of the road, and of its ties, rails,^
the value of packages offered for carriage."* But the all appliances essential to the safety of the train and
law does not exact of him knowledge of the contents passengers. For injuries through negUgence, to which
of a package, nor permit him, in cases free from sus- the passenger does not contribute by his own act, it
picion, to require information as to the contents, as a
condition to ti*ansportation.* is liable.'*
In guarding passengers from dangers not incident
He has a lien for freight, g. v. to ordinary railway travel, the rule of liability is less
On the service of legal process, he may surrender stringent than in the case of the ordinary perils from
goods into the custody of the law.' appliances, servants, and operation of trains; but in
The fair result of the cases limits his liabihty, where no case must the carrier expose the passenger to
no special contract exists, to his own line. But if he extra-hazardous dangers that might readily be discov-
undertakes the entire service, he cannot make another ered or anticipated by reasonable and practicable care
carrier the agent of the consignor or consignee.' andThe
foresight.'
n. Common Carrier of Passengers. His duty is to standard of duty should be according to the
carry aU persons who apply for transportation, if his consequences that may ensue from carelessness. The
accommodations are sufficient and there exists no rea- rule has its foundation in public policy. It is approved
sonable objection to the persons." by experience, and sanctioned by the plainest prin-
He may make reasonable regulations tor the com- ciples of reason and justice. The coiuis should not
relax it. The terms in question do not mean all the
'See Southern Express Co. v. Caldwell, 31 Wall. care and diligence the human mind can conceive of,
267-72 (1674), cases; York Co. v. Illinois Central E. Co., nor such as will render the transportation free from
3 id. 111-13 (1805), cases; N. Y. Central, &c. B. Co. v. any possible peril, nor such as would drive the carrier
Lockwood, 17 id. 359-81 (1873), cases; Bank of Ken- from his business. . . The rule is beneficial to both
tucky V. Adams Express Co., 93 U. S. 181 (1876); Brown parties. It tends to give protection to the traveler,
V. Adams Express Co., 15 W. Va. 816-26 (1879), cases. and warns the carrier against the consequences of de-
2 Memphis, &c. K. Co. v. Reeves, 10 Wall. 189-91
(1869), cases. linquency.*
a New York Central & Hudson Eiver E. Co. v. Fraloff , 'Philadelphia, &c. E. Co. v. Derby, 14 How. 486
100 U. S. 27 (1879). (1853); Hall v. Memphis, &c. R. Co., 15 F. E. 57, 69-97
* 2 Pars. Contr. 173.
(1882), cases.
» Muser v. Holland, 17 Blatch. 414-15 (1880), cases. 2 Vicksburg & Meridian E. Co. v. O'Brien, 119 U. S.
• Nitro-Glycerine Case, 15 Wall. 535-36(1873), cases; 109 (1886), Field, J.
State V. Coss, 59 Vt. 271 (1886), cases. » (Chicago, &c. E. Co. v. Pillsbury, Bl. Sup. Ct. (Nov.
' 2 Pars. Contr. 207.
11, 1887): 26 Cent. Law J.' 288; ib. 290-93(1888), cases.
8 Michigan Central E. Co. v. Manufacturing Co., 16 The plaintiff took aboard non-union laborers (under
Wall. 324 (1873); Ogdensburg, Sic. R. Co. v. Pi-att, 22 police protection) who went into the smoking-car with
id. 129 (1874); Bank of Kentucky v. Adams Express other passengers, among whom was Pillsbury. The
Co., 93 U. S. 181 (1876); St. Louis Ins. Co. v. Railroad train, while stopping at a crossing (not a station), was
Co., 104 id. 157-59 (1881); Myrick v. Michigan Central R. boarded by a mob who attacked the laborers, and shot
Co., 107 id. 106-10 (1882), cases; Atchison, &c. R. Co. u. Pillsbury. The company was held liable in damages
Denver, &c. E. Co., 110 id. 680 (1884); Keep v. Indianap- for his death, on the ground that the attack might
olis, &c. E. Co., 3 McCrary, 208, 214-19 (1881), cases; have been foreseen and the death of the passenger
Algen V. Boston, &c. R. Co., 132 Mass. 435 (1883), cases; averted.
Central Trust Co. v. Wabash, &c. R. Co., 31 P. R. 248 < Indianapolis, &c. E. Co. v. Horst, 93 U. S. 296-97
(1887), cases. On the carriage of freight generally, see (1876), cases, Swayne, J. See also 26 Cent. Law J.Sup. 50-
23 Cent. Law J. 79 (1886), cases. 55 (1888), cases; Hyman v. Pennsylvania E. Co.,
» Pearson v. Duane, 4 Wall. 615 (1866). Ct. Pa. (1888).
 CARRY 152 CASE

He is liable tor the slightest fault. He cannot by

special contract exempt himself from liability for
3. When a party becomes entitled to the
negligence or misconduct. The burden of disproving payment of costs as an incident to a verdict
, negligence rests upon him. He must show by affirm- in his favor, the verdict is said to " carry
ative evidence that he exercised the requisite degree costs." See Damages.
of care.i 4. That to carry safely is the obligation of
What will be misconduct on the part of servants a common carrier, see Oareiee.
toward a passenger cannot be defined by a rule appli-
cable to every case, but must, depend upon the par- Carry on. A single act pertaining to a
ticular circumstances in which they are required to particular business will not constitute one as
act. In the enforcement of reasonable regulations " carrying on'' or engaged in that business.!
established by the carrier for the conduct of its busi- Making a contract in Colorado to build and to de-
ness, the servant may be obliged to use force. But liver in Ohio certain machinery was held not " carry-
the law will not protect the carrier if the servant uses ing on " busmess in Colorado.' See further Find, 2.
excessive or unnecessary force. 2 Carry stock. When a broter buys stock
A passenger upon a railroad, taking a drawing-room and holds it on account of a customer, he is
car, has a right to assume that the car is there under a
contract with the railroad corporation, and that the said to " carry stock." s
servants in charge of the car are its servants, for CART. See Wagon.
whose acts, in the discharge of their duty, it is hable.s CARTA. See Chaeta.
The negligence of a servant of a palace-car com- CASE. 1. That which happens or comes
pany whose car forms part of the carrier's train is about; an occurrence; a circumstance to
negligence in the railroad company, though an addi-
tional sum has been paid to the former company. * See which something applies. Compare CASUS.
Sleeping-cae. In the Eevised Statutes, § 5392, limiting perjury to
See further Accident; Act, 1, Of God; BAGaAOE; oaths in a case in which the law authorizes an oath to
Bailmekt; Commerce; Delivebt, 1; Express Company; be administered, " case " is not confined to a suit or
Lien; Negligence; Passenger; Policy, 1; Eailroad; proceeding in court. The meaning is, the law must
Eight, 2, Civil Eights Acts; Stoppage; Tort, 8; Tug- authorize the oath under the circumstances existing;
boat; Warehouseman; Whareinger. as, in justifying bail.*
CARRY. 1. In the law of larceny, The expression "all cases" often signifies all cases
of a particular class only. The generality of the
"carry" is not the same as "carry away." words will be restrained by the context and the gen-
"Did, take and carry away" is the transla- eral scheme of the instrument. ^
tion of " cepit et asportavit," used in indict- Thewords " in case he lives " imply a condition as
ments when processes and records were in explicitly as "if," "upon," and the like, and express
a contingency.^ See Then; Upon, 2.
Latin. "Away "or some other word must 2. A state of facts which furnishes occasion
be subjoined to " carry " to modify its gen- for the exercise of the jurisdiction of a court
eral signiiication.* See Laecent.
" Take and haul away " has the same meaning as of Ajustice.'
take and cai-ry away." question contested before a court of jus-
2. To bear: as, to "carry a concealed tice; an action or suit in law or equity.^
An action, suit, or cause, qq. v.
weapon."
Locomotion is not essential.^ See further Weapon. In the sense of " a state of facts involving a ques-
tion for discussion or decision, a, cause or suit in
court," will include a question pending before a com-
1 Pennsylvania Co. v. Eoy, 102 U. S. 456 (1880), cases; mission authorized to hear and determine matters per-
Hart V. Penn. E. Co., 112 id. 338-43 (1884), cases; Water-
taining to railroads.^
bury V. N. Y. Central, &o. E. Co., 17 F. E. 671, 674-93 The word is applied in New York to at least three
(1883), note; 32 Am. Law Eev. 198-202 (1888), cases. abstract ideas: a suitor action at law; the combina-
As to^ contract for non-liability for negligence, see tion of facts upon which each party relies to sustain
also Griswold v. New York, &c. E. Co., 53 Conn. 385-86
(1885), cases, pro and con. ; Lake Shore, &c. E. Co. v. 1 Weil V. State, 52 Ala. 20-21 (1875); United States v.
Spangler, 44 Ohio St. 476 (1886); Little Eock, &c. E. Co. Jaclison, 1 Hughes, B38 (1875).
■0. Eubanks, 48 Ark. 465 (1886), cases. ' Cooper Manuf . Co. v. Ferguson, 113 \}. S. 735 (1885).
^ New Jersey Steamboat Co. v. Brockett, '121 TJ. S. 5 Peckering v. Demerritt, 100 Mass. 421 (1868).
646^7 (1887), cases. As to servants, see 23 Cent. Law < United States v. Volz, 14 Blatch. 17 (1876).
J, 127 (1886) — Justice of the Peace (Bug.). "Phillips V. State, 15 Ga. 521 (1854); 27 Ark. 564;
' ThoiTpe V. N. Y. Central & Hudson Elver E. Co., 76 11 Ohio St. 252; 18 Pa. 388: 118 U. S. 491.
N. Y. 402 (1879). « Eobert's Appeal, 69 Pa. 72 (1868).
« Commonwealth u. Adams, 7 Gray, 46 (1856); Com- ' Kundolt V. Thalheimer, 13 N. Y. 596 (1865), Gardi-
monwealth V.Pratt, 132 Mass. 247 (1882). ner, C. J.
s SpittorflE V. State, 108 Ind. 172 (1886). " Exp. Towles, 48 Tex. 433 (1877), Eoberts. 0. J.
• Owen V. State, 31 Ala. 389 (1858), Eice, C. J. ' Smith V. City of Waterbury, 54 Conn. 177 (1886).
 153
CASE CASE

his side ot a controversy; and the aggregation of 3. In pleading, a term for "action on the
papers and evidence presented to an appellate court
on the argument of an appeal.' case," " trespass on the case," " special action
Case in judgment. The facts which con- of trespass on the case"— a common-law
form of action.
stitute the case under consideration or already A generic term, embracing many
decided. different species
of actions, those of most frequent use being assumpsit
Case law. That part of the jurisprudence and trover.'
of a country which is deducible from the de- A remedy for all personal wrongs com-
cisions rendered by the courts ; law made by mitted without force — where the injury is
decided cases.
consequential. Called " case " because the
Case reserved. When the jury find a plaintiff's whole cause of complaint is set
verdict generally for the plaintiff, but sub- forth at length. 2
ject to the opinion of the court on the special Where the act done is in itself an immediate injury
case stated by counsel on bothsides with re- the remedy is by an action of trespass vi et armis.
Where there is only a culpable omission, or where-
gard to a matter of law. 2 the act is not immediately injurious, but only conse-
Case stated. When the parties submit quentially a.nd collaterally so, the remedy is by an
to the court a written statement of the facts action on the special case for the damages consequent
in the case as they agree upon them, to ob- on such act or omission,"
Where any special consequential damage arises,
tain a decision upon the question of law
which could not be foreseen and provided for in the
arising out of the facts. Also called a " case ordinary course of justice, the party is allowed, by
agreed upon," or "case made." common law and by statute of Westminster 2, c. 24,
A case stated is a substitute for a special ver- to bring a special action on his own case, by a writ
dict,' q. V. formed according to the pecuhar circumstances of his
If a question of mere law arises in the course of a particular grievance.* See Casus, Consimili casu.
cause iif chancery, it is referred, for an opinion, to the The action of case lies for a tort not committed
king's bench or the common pleas, upon a case stated with force, actual or implied; for a tort committed
for that pxupose, wherein all the material facts are forcibly where the matter affected was not tangible,
admitted, and the point of law is submitted to their as tor an injury to a right of way or to a franchise;
decision.' for an injury to a relative right; for an injury result-
ing from negligence; for a wrongful act done under
Cases and controversies. By "cases'
and controversies," in the judicial article of legal process regularly issued from a court of compe-
tent jurisdiction; for a wrongful act committed by
the Constitution, are intended the claims of
defendant's servant without his order, but for which h&
litigants brought before the courts for deter- is still responsible; for the infringement of a right
mination bysuch regular proceedings as are given by statute; for an injury done to property of
established by law or custom for the protec- which the plaintiff has the reversion only.
Damages not necessarily resulting from the act
tion or enforcement of rights, or the preven-
complained of must be alleged specially. The plea
tion, redress, or punishment of wrongs. " not guilty " raises the general issue; and under this
Whenever the claim of a party under the plea almost any matter ot defense, except the statute
Constitution, laws, or treaties takes such a of limitations, may be given in evidence. In some
form that the judicial power is capable of States the distinction between "trespass" and "case"
has been abolished.
acting upon it, it becomes a case. The term
See Amendment, 1; Damages, Special; Trespass.
implies the existence of present or possible 4. A chest, box, or package.
adverse parties whose contentions are sub- By statute 35 and 36 Vict. (1872), c. 77, s. 23, no ex-
mitted to the court for adjudication. 6 plosive or inflammable substance shall be taken into a
The term " controversies," if distinguishable from mine " except in a case or canister," etc. Held, that
"cases," is so in that it is less comprehensive than the " case " means something solid and substantial m the
latter, and includes only suits of a civil nature.' See nature of a canister, and that a package like a bag
Controversy; Judicial, Power.
See also Admiralty; Fictitiods; Lbadino; Merits; of linen or calico was not contemplated.'
Ovbrrxjled; Report, 1 (2); Table, Of cases.
1 [Carrol v. Green, 92 U. S. 513 (1875), Swayne, J.
2 [3 Bl. Com. 122, 154.
■ [15 Alb. Law J. 242 (1877). S3 Bl. Com. 188; Scott t>. Sbepherd,2W. Bl. 892(1773):
2 [3 Bl. Com. 378. 1 Sm. L. C, Part I, *754-fi9; Cooley, Torts, 70; 30 Conn.
s Whitesides v. Eussell, 8 W. & S. 47 (1844).
4 3 Bl. Com. 453. 182, 180.
*3B1. Com. 123-23, 50-51.
' Be Pacific Railway Commission, 32 F. B. 255 (1887), 'Foster v. Diphwys Casson Slate Co., L. Rj, 18 Q.
Field, J. B. D. 428 (1887).
 154
CASH
CASUS

CASH. In all sales for cash the money CASK. See Empty.
must be paid when the property is deliv- CASSETUR. See Quash.
ered.! CAST. To transfer, invest with, place
A sale for cash is a sale for the money in upon; as, in saying that the law casts the
hand.2 legal ownership of the property of an intes-
But wlien a factor is directed to sell grain for cash,
tate upon the administrator, ^ or casts the es-
evidence may be given of a well-established custom to
allow the purchaser to receive the grain, and call for tate upon the heir.^
the money in a few days after delivery. ''i ^ Cast away. For a vessel to be lost, to be
Where goods are sold for cash, but the delivery is irrecoverable by ordinary means, to perish.'
unconditional and without fraud or mistake, the title Casting vote. See Vote.
vests in the vendee notwithstanding the cash was not CASTIGATORY. See Scold.
in fact paid.' CASTLE. See House, 1 ; Manor.
The idea of a sale on credit is that the vendee is to
have the thing sold on his assumption to pay, and be- CASUAL.* That which happens by acci-
fore actual payment.* dent or is brought about by an unknown
See Credit; Cdbhent,2; Monet; Place, 1, Of deliv- cause. Compare Regular.
ery, payment; Sale; Value.
Casual ejector. A nominal defendant in
CASHISR. An officer or agent whose
the action of ejectment at common law.
business is mainly to take care of the money By a fiction he was supposed to have entered and
of ail institution, of a private person, or of a ejected the lawful possessor.'
firm. Casual pauper or poor. A person who
The cashier of a bank is the executive ofBcer is assisted under the poor laws in a district
through whom the financial operations are conducted. other than that of his lawful settlement.
He receives and pays out its moneys, collects and pays
its debts, receives and transfers its commercial securi- Whence " casuals." See further Poor.
ties. Tellers and other subordinate offlcers are under Casualty. An inevitable accident, g. v.
his direction, and are, as it were, the arms by which "Unavoidable casualty," in common use
designated portions of his functions are discharged.' in leases, comprehends only damage or de-
Evidence of powers habitually exercised with the
acquiescence of the directors of the bank deiines and struction arising from supervening and un-
establishes, as to the public, those powers — provided controllable force or accident. By strict
the charter is not violated.' definition, an event or accident which
He is the general financial agent. He acts, or is human prudence, foresight, and sagacity
presumed to act, according to general practice, and
the course of business; and this binds the bank in cannot prevent." See Act, 1, Of God; In-
surance.
favor of one who possesses no other knowledge.'
See Agent; Bane, S (3); Check; Deposit, 2. CASUS. L. A thing that happens: an
occurrence ; a combination of circumstances ;
■ Bliss V. Arnold, 8 Vt. 255 (1836). an event ; a case, 5. v.
= Steward v. Scudder, 21 N. J. L. 101 (1853).
' Foley V. Mason, 6 Md. 49 (1854), cases. Casus foederis. The case of the treaty:
* Merchants' Nat. Bank of Memphis v. Nat. Bank of the case contemplated in a compact or con-
Commerce, 91 U. S. 95 (1875), Strong, J.
See also 24 Am. Law Reg. 514-19 (1885), cases ; 20 Cent. tract.'
Casus fortuitous. An inevitable occur-
Law J. 304-7 (1885), cases; 1 Cal. 45; 54 id. 218; 4Mass.
245; 103 id. 17; 5 Allen, 91; 27 N. T. 378; 62 id. 513; rence or accident. 8
69 id. 148; 9 Johns. 120; 19 id. 144; 39 Barb. 283; 1 Ohio, Casus major. An unusual accident.^
189; 34 Pa. 344; 28 Gratt. 165. See Accident ; Act, 1, Of God.
' Merchants' Nat. Bank v. State Nat. Bank, 10 WaU. Casus omissus. A case not provided for.
«50 (1870), cases,, Swayne, J.
A combination of circumstances overlooked.
"Ibid. 604, 644; Moores v. Citizens' Nat. Bank of
Pjqua, 111 U. S. 156, 169 (1884), cases.
' Case V. Citizens' Bank of Lomsiana, 100 U. S. 464 1 143 Mass. 393; 52 Pa. 333; 7 Wheat. 107
2 36 Cal. 333.
(1879); Martin v. Webb, 110 id. 14 (1884); Xenia Bank v.
Stewart, 114 id. 234 (1885); Knickerbocker Life Ins. Co. = 1 Wash. 373; 3 id. 382; 4 Dall. 413.
V. Pendleton, 115 id. 344 (188.5); Bostwick v. Van Voor- * L. easualia, happening by chance.
' 3 Bl. Com. 303.
his, 91 N. Y. 353 (1883); Merchants' Bank v. Jeffries, 81
W. Va. 504 (1883); 20 Cent. Law J. 126-30 (1885), cases; « [Welles V. Castles, 3 Gray, 325 (1855), Bigelow, J.
133 Mass. 23; Story, Agency, §§ 114-15; Whart. Ag. See also Thompson v. Tillotson, 56 Miss. 36 (1878).
§§ 684-87; 3 Am. Law Eev. 612^0 (1869), cases; Bank. ' See 1 Kent, 49.
Mag., July, 1860. As to his signature, see Robinson v. ' See 3 Kent, 317, 300; Whart. Neg. §§ 113, 553.
Xanawha Valley Bank, 44 Ohio St. 448 » story, Bailm. § 340.
 CATALOGUE 155
CAUSE

or deemed unimportant, in a statute or a Within the meaning of a penal statute, " buffaloes "
contract. may not be cattle.'
Where the letter of a statute would have been en- See Animal; Damage-peasant; Feed; Fence;
Heifer; Hog; Horse; Perishable; Provisions
larged to Include an occurrence, had the legislature
foreseen it, the courts will bring the case within the CAUCUS. See Bribery.
spirit of the statute.' CAUSA. L. That which operates to
But, under this rule, a court may not go so far as produce an effect ; that on account of which
virtually to make a law.^
Consimili easu. a thing is done ; that which supplies a motive,
In like case. or constitutes a reason.
To quicken the diligence of the clerks in chancery,
who were much attached to ancient precedents, it was Causa causans. The originating, effi-
provided by statute of Westm. S, 13 Edw. I (1285), o. 84, cient cause; the immediate cause. Causa
that when " in one case a writ shall be found in the causae causantis. The cause of the cause
chancery, and in a like case falling under the same
operating; i. e., the near, not the direct,
right and requii-ing like remedy, no precedent of a cause, 2 See Cause, 1.
writ can be produced, the clerks shall agree in form-
ing a new one; and if they cannot agfee, it shall be Causa mortis. See Donatio, Mortis, etc.
adjourned to the next parliament." . . This pro- Causa proxima, non remota, speeta-
vision might have answered all the purposes of a court tur. The near cause, not the removed, ia
of equity.^ considered. See at length Cause, 1, Proxi-
CATALOGUE. See Copyright. mate, etc.
CATCHITfG. See Bargain.
Causa sine qua non. A cause without
CATCHPOLE. Formerly, an officer, as which a thing cannot be or exist : as, a cause
a deputy-sheriff or a constable, who made without which an injury could not have oc-
an-ests.
He was supposed to catch the prisoner by the poll — curred.'
the head, or neck. The term now expresses contempt Causa turpis. An unlawful motive or
or derision. purpose : an immoral or illegal consideration.
CATTLE.'' Domestic animals generally ; Ex turpi causa non oritur actio. Out of
ai^imals useful for food or labor. an illegal consideration an action cannot
" Sheep, oxen, swine, and horses, which we in gen- arise : no court will aid a party who founds
eral call cattle, may be estrays." ^ his claim for redress upon an illegal act.*
Not only domesticated horned animals, but See further Delictum, In pari, etc.
also swine, horses, asses, and mules.^ CAUSE. 1. Eng. (1) That which pro-
In an indictment " steer " may be used for " cattle " duces or effects a result; that from which
or " neat cattle." '
anything proceeds, and without which it
1 See 1 Shars. Bl. Com. 61 ; 2 id. 260; 4 id. 302. would not exist. 5
2 See United States v. Union Pacific E. Co., 91 U. S. Proximate cause. The nearest, the im-
S5 (1875); Hobbs v. McLean, 117 id. 579 (1886). mediate, the direct cause ; the efficient cause ;
a 3 Bl. Com. 50-51. the cause that sets another or other causes
* L. L, catalla, movables. In old English, " cattle "
had not that meaning, — Marsh, Eng. Lang. 246. From in operation ; the dominant cause. Remote
L. capitalis, the head or chief. Compare "pecun- cause. The removed, the distant, the in-
ia-ry," and '* feud." When wealth consisted in heads direct, the intermediate cause.
of cattle (capita, capitalia), the word which desig- The law concerns itself only with the direct
nated them came to include all kinds of property. In
the Elizabethan age " quick cattle " meant live stock. cause of an event — that force or influence
In time " chattel " denoted dead, inanimate property; which, in the order of causation, is nearest
and " cattle " sensate possessions. Wiclif, in 1380, to the effect or result under consideration, and
translated Luke viii, 44, " a woman that spendid all is sufficient of itself to produce the result.
hir catel in leechis; " and Chaucer, in 1.388, wrote that The principle is of frequent application in the law
&n avaricious man "hath hope in his catel." See of insurance ; and in cases of involuntary negligence,
Trench, Glossary, 29. as distinguished from wanton or intentional injuries.
» 1 Bl. Com. 298.
'See United States v. Mattock, 2 Saw. 149-51 (1872);
Decatur Bank v. St. Louis Bank, 21 Wall. 299 (1874); • State V. Crenshaw, 22 Mo. 458 (1856).
Ohio, &c. E. Co. V. Brubaker, 47 111. 462 (1868); Toledo, ' See 12 Wall. 399; 96 U. S. 132; 4 Gray, 398.
&c. R. Co. V. Cole, 50 id. 186 (1869); Hubotter v. State, s 111 U. S, 241.
32 Tex. 484 (1870); 27 id. 726; 45 id. 84. « The Florida, 101 U. S. 43 (1879); 8 Pet. *539; 87 Ind.
' Staf« V. Lange, 22 Tex. 591 (1858); State v. Abbott, 2r3; 46 Iowa, 241.
SO Vt. 537 (1848). « Webster's Diet.
 CAUSE 156
CAUSE

If we could deduce from the cases the best possible

common imderstanding. In a succession of events an
expression of the rule, it would remain after all to de-
cide each case largely upon the special facts belonging interval may always be seen by an acute mind be-
tween a cause and its effect, though it may be so ini-
to it, and often upon the very nicest discriminations.
perceptible as to be overlooked by a common mind.
One of the most valuable criteria furnished by the au- Thus, if a building be set on fire by negligence, and an
thorities is to ascertain whether any new cause has
adjoining building be destroyed without any negli-
Intervened between the fact accomplished and the al- gence in the occupants of the first building, no one
leged cause. If a new force or power has intervened,
would doubt that the destruction of the second build-
of Itself suflQcient to stand as the cause of the mis-
ing was due to the negligence that caused the destruc-
fortune, the other must be considered as too remote. ^ tion of the fla-st. Yet in truth, in a, very legitimate
No difficulty attends the application of the maxim sense, the immediate cause of the burning of the
when the causes succeed each other in the order of second building was the burning of the first. The
time. When one of several successive causes is s,uffi- same might be said of the burning of the furniture in
cient to produce the effect (for example, to cause a the first. Such refinements are too minute for rules
loss), the law will never regard an antecedent cause of social conduct. In the nature of things, there is in
of that cause, or the causa caiisans, q. v. But when every transaction a succession of events, more or less
there are two concurrent causes, the predominating depending upon those preceding, and it is the province
efficient one must be regarded as the proximate, when of a jury to look at this succession of events or facts,
the damage done by each cannot be distinguished. and ascertahi whether they are naturally and probably
Ajid certainly that cause which set the other in motion, connected with each other by a continuous seqtience,
and gave to it its efficiency for harm at the time of the or are dissevered by new and independent agencies-,
disaster, must rank as predominant.'' and this must be determined in view of the circum-
What is the proximate cause of an injury is ordi- stances existing at the time.i
narily a question for the jury. It is not a question of The question is not what cause was nearest in time
science or of legal knowledge. It is to be determined or place to the catastrophe. The proximate cause is
as a fact, in view of the circumstances of fact attend- the efficient' cause, the one that necessarily sets the
ing it. The primary cause may be the proximate other causes in operation. The causes that are merely
cause of a disaster, though it may operate through incidental or instruments of a superior or controlling
successive instruments, as an article at the end of a agency are not the proximate causes and the respon-
chain may be moved by a force applied to the other sible ones, though they may be nearer in time to the
end, that force being the proximate cause of the move- result. It is only when the causes are independent of
ment, as in the of t/ited case of the squib thrown in each other that the nearest is, of course, to be charged
the market-place/ The question always iiSfWas there with the disaster. The proximate cause is the domi-
an unbroken couTiection between the wrongful act and nant cause, not the one which is- incidental to that
the injury, a continuous operation? Did the facts con- cause, its mere instrument, though the latter may be
stitute a continuous succession of events, so linked to- ■ nearest in place and time to the loss.^
gether as to make a natural whole, or was there some The jury must determine whether the facts consti-
new and independent cause interveniDg between the tute a continuous succession of events, so linked to-
wrong and the injury? It is admitted thatfthe rule is gether that they become a natural whole, or whether
difficult of application. But it is generally held that, the chain of events is so broken that they become in-
to warrant a finding that negligence, or an act not dependent, and the finaL result cannot be said to be
amounting to wanton wrong, is the proximate cause the natural and probable consequence of the primary
of an injury, it must appear that the injury was the cause — the negligence of the defendant.*
natural and probable consequence of the negligent or When several proximate causes contribute to an
wrongful act, and that it ought to have been foreseen accident and each is an efficient cause, without the
in the light of attending circumstances. y/\ We do operation of which the accident would not have hap-
not say .that even the natural and probable conse- pened, it may be attributed to all or to any, of the
quences of a wrongful act or omission are in all cases
to be chargeable to the misfeasance or non-feasance. That some agency intervenes between the original
causes.*
They are not when there is a sufficient and iudepend; wrong and the injury does not necessarily bi'ing the
ent cause operating between the wrong and the injury. cause within the rule. It is firmly settled that the
In such a case the resort of the sufferer must be to the intervention of a third person, or of other and new
originator of the intermediate cause. But when there
is no intermediate efficient cause, the original wrong 1 Milwaukee, &c. R Co. v, Kellogg, 94 tf. S. 474-76
must be considered as reaching to the effect, and prox- (1876), Strong, J. In this case a mill was destroyed by
imate to it. The inquiry must, therefore, always be fire communicated from an eleyator, and to the ele-
vator from a boat.
whether there was any intermediate cause, discon-
2 ^tna Fire Ins. Co. v. Boon, 95 XT. S. 130, 133 (1873),
nected from the primary fault, and self -operating, cases. Strong, J. See also Crandall v. Goodrich
which produced the injury. Here lies the difficulty.
^ But the inquiry must be answered in accordance with Transp. Co., 16 F. E. 75 (1883). •
3 Pennsylvania R. Co. v. Hope, 80 Pa. 377-78 (1876),
1 Mutual Ins. Co. v. Tweed, 7 Wall. 52 (1868), Miller, J. ; cases, Agnew, C. J. ; Hoag v. Lake Shore, &c. R. Co.,
Travelers' Ins. Co. v. Seaver, 19 id. 542 (1873). 85 id. 297-98 (1877), cases.
2 Howard Fire Ins. Co. v. Transportation Co., 13 4 Ring V. City of Cohoes, 77 N. Y. 90 (1879), Earl, J.;
Wall. 199 (1870), Strong, J. Eeiper v. Nichols, 31 Hun, 495 (1884), cases
 157
CAUSE CAUSE

causes, does not preclude a recovery, if the injury was A wrong committed or threatened.!
the natural and probable result of the original wrong.l A plaintiff must show himself entitled to the relief
Everything which induces or influences an accident called for by the facts stated in his complaint. The
does not necessarily and legally cause it. . There allegations, the evidence, and the findings should cor-
«au be no fixed rule defining a proximate cause. Much respond inlegal intent.'
must depend upon the circumstances of each case.^ The expression implies not only a right of action,
Strictly, the law knows no cause but a responsible but that there is some person in existence who is qual-
human will. When such a will negligently sets in ified to institute process. The right must be capable
motion a natural force that acts upon and with sur- of being legally enforced; and so there must be a per-
rounding conditions, the law regards such human
son to be sued.''
action as the cause of resulting injury.' The elements are : a right possessed by the plaintiff,
Whether a particular act of negligence is the prox- and an infringement of such right by the defendaht'
imate cause is a question of fact to be determined by
Where the distinction between " trespass " and
the jury under instructions.' " case " is abolished, the plaintiff in his petition may
The unlawful act of a third person, though directly present such facts as show a blending of those com-
induced by the original wrong of the defendant, is not mon-law forms of action. 3 Bee LiMiTATmN, 3, Stat-
to be attributed to the original wrong as a proximate ute of.
cause of the damage.* See Act.I, Of God; Blastimo; To " show cause of action " is to exhibit the facts
Consequences; Damages. upon which a right of action rests. The practice is
(2) The occasion for action ; that by reason resorted to in actions of tort to reduce the amount of
of which a thing is done ; reason or ground bail required, as where it will appear that the causa
for action. of action is purely technical or is of a very ordinary
nature.
The origin or foundation of a thing, as of See Meritorious; Split.
a suit or action ; a ground of action.* ^ Tor cause. See Challenge, 4; Re-
Cause of action. The right which a move, 3.
party has to institute and carry through a Good, cause. Has no certain rneaning in
proceeding. 6 a stipulation for canceling a contract.*
The act on the part of the defendant which Probable cause. Within the meaning
complaint.''
cause toof define of the law relating to actions for malicious
gives
Jurists found his
plaintiff
thehave it difficult a cause of
action. It may be said to be composed of the right of prosecutions, — a reasonable cause of suspi-
the plaintiff and the obligation, duty, or wrong of the cion, supported by circumstances sufficiently
defendant.^ strong in themselves to warrant a cautious
man in the belief that the person accused is
1 Billman v. Indianapolis, &c. E. Co., 76 Ind. 16&-71 guilty of the offense with which he is
<1881). See also Louisville, &c. E. Co. v. Erinning, 87
id. 354-55 (1882), cases; 12 Bradw. 168, charged.5
Such a state of facts in the mind of the
' Spaulding v. Winslow, 74 Me. 534-35 (1883), cases.
prosecutor as would lead a man of ordinary
See also Jucker v. Chicago, &c. E. Co., 52 Wis. 152-63
caution and prudence to believe, or entertain
<1881), cases; N .Y. Express Co. v. Traders' Ins. Co., 132
Mass. 382-85 (1882); Nelson v. Chicago, &c. E. Co., 80 an honest and strong suspicion, that the per-
Minn 77 (1882); Eansier v. Minneapolis, &c. E. Co., 33
son arrested is guilty.^
id. 334 (1884), cases; Georgetown, &c. E. Co. v. Eagles, The existence of such facts and circum-
8 Col. 547 (1886), oases; 14 Pet. 99; 10 Wall. 191; 66 Ga.
stances as would excite the belief in a rea-
750; 4 Gray, 412; 76 Mo. 393; 3 Kent, 374; 4 Am. Law
Eev. 201-16 (1870), cases; 4 South. Law Eev. 759-68 sonable mind, acting on the facts within the
(1878), cases; Whart. Neg. § 78. knowledge of the prosecutor, that the person
"Adams v. Young, 44 Ohio St. 86-91 (1886), oases,
FoUett, J. Sparks, negligently thrown from a mfil
smoke-stack, set fire to a stable one hundred feet also Eodgers v. Mutual Endowment Association, 17
away, from which a second building, two hundred feet S. C. 410 (1881).
1 Miller v. Hallock, 9 Col. 453 (1886), cases. Beck, C. J.
distant, took fire, and from that the buUdmg in suit,
n Fruitt V. Anderson, 13 Bradw. 430 (1883).
sixty feet distant. See' same and other cases, 25 Am. 3 Atchison, &c. E. Co. v. Eice, 36 Kan. 600 (1887),
Law Eeg. 668-70 (1886).
4 The Young America, 81 F. R. 753 (1887), cases, Valentine, J.
Wallace, J.
1 Cummer v. Butts, 40 Mich. 3-32 (1879).Washington, J. ;
s United States v. Rhodes, 1 Abb. 0. C. 33 (1866): » Munns v. Dupont, 3 Wash. 37 (1811),
Burrill.
2 Denio, 617; 97 U. S. 645; 37 Md. 318, 331.
« [Meyer v. Van CoUem, 28 Barb. 231 (18=8). 0 Bacon v. Towne, 4 Cush. 238 (1849), Shaw, C. J. See
'Jackson "J. Spittall, L. E., 5 C. P. *553, 544 (1870), also Mitchell v. Wall, HI Mass. 497 (1873); Heyne r.
Brett, J.
Blair, 62 N. Y. 32 (1876); Staoey v. Emery, 97 U. S. 645
(1878),
e Veeder v. Baker, 83 N. Y. 160 (1880), Earl, J. See
 CAUSE 158 CAUTION

charged was guilty of the crime for which he could not meet his obligations as they mature in
he was prosecuted.i the ordinary course of business.*
When information as to the commission of A recital in the certificate of a magistrate that
" satisfactory cause " has been shown for issuing a
a crime is believed, and is such, and from warrant of arrest is not equivalent to a statement
such sources, that the generality of business that he is satisfied that there is "reasonable cause"
men of ordinary care, prudence, and discre- to believe that the charge contained in the preliminary
tion would prosecute upon it under the same affidavit is true."
To avoid, as a fraudulent preference in the Bank-
, conditions. 2
rupt Act, a security taken for a debt, the creditor
The constitutional provision that a warrant of ar- must have had such knowledge of facts as to induce a
rest can issue only " upon probable cause, supported reasonable belief of his debtor's insolvency. . .
by oath or affirmation," contemplates an oath or af- Eeasonable cause " to believe " and " to suspect " are
firmation bythe person who, of his own knowledge,
deposes to the facts which constitute the offense; the distinct, in meaning and effect.^ See Prefer, 2.
mere belief of the affiant is insufficient. ^ , (3) An action at law, a suit at law or in
"Probable cause for making an information " does judicial proceeding'.
not mean actual and positive cause. The complaint In any a legal
equity; sense, action, suit, and cause
may be made upon information and belief.* are convertible terms.*
Prize courts deny damages or costs where there " Case " is more limited, importing a collection of
has been probable cause for a seizure. Probable
cause exists where there are circumstances sufficient facts with the conclusions thereon. A ' ' cause ' ' pends,
to warrant a reasonable ground of suspicion, even is postponed, appealed, removed; whereas a "case"
is made, vested, argued, decided, etc.^
though not sufficient to justify condemnation.^ See Action, 2; Aduirai,T7;. Case, 2; Chancery;
There is no substantial difference between " prob- Joinder; Suit; Title, 2.
able cause " and " reasonable cause " of seiziu-e.* See 2. Fr. A case; a trial.
PROSECtfTioN, Malicious.
Beasonable cause. A fact which would Cause eelebre. A celebrated trial ; plural,
causes cdebres.
suggest to persons of average intelligence the
In French law, resembles a " State trial " in English
same inference or action ; such facts as would law. Among English and American writers, a trial,
constrain a person of ordinary caution and or a reported case, famous for the parties and the facts
sagacity to pursue a particular course of involved.
conduct; legal cause or excuse; probable CAUSEWAY. See Bridge.
cause. CAUTELA. L. Caution; providence;
In the law of homicide, reasonable cause or ground care; heed.
to apprehend harm or death. A bare fear, unaccom- Ad majorem cautelam. For the sake of
panied by any overt act indicative of the supposed the greater caution. Ex abundant! eau-
intention, will not warrant a killing, if there is no
actual danger.^ See further Defense, 1.
tela. Out of extreme caution. Ex majors
The reasonable cause which will justify a husband cautela. By way of greater vigilance.
or wife in abandoning the other is, in Pennsylvania at Applied to the use of apparently superfluous words
least, that which would entitle the party so separating and the doing of things seemingly supererogatory,
himself or herself to a divorce. '^ See Abandon, 2 (1). from an apprehension that otherwise some right may
Keasonable cause to believe a debtor insolvent ex- be yielded or prejudiced, some power or privilege
ists when the condition of his affairs is known to be waived, or an estoppel created: as where formal,
such that prudent business men would conclude that technical, and synonymous terms are employed in
instruments; where slightly varying averments are
made in pleading: where special statutory power to do
I Wheeler v. Nesbltt, S4 How . 5B1-52 (1860), Clifford, J. a thing is conferred, on the supposition that power may
• [Hamilton u. Smith, 39 Mich. 226-29 (1878), cases,
Graves, J. See also Burton v. St. Paul, &c. E. Co., 33 not already exist."
Minn. 191 (t885), cases; 1 Am. Ld. Cas. 213; 28 Ind. 67; CAUTIOH'. Attention to the effect of a
12 Bradw. 635; 52 Me. 505; 76 Mo. 670; 20 Ohio, 129; 28 thing about to be done; regard to contin-
Iowa, 49; 45 Tex. 544. gencies; forethought; care. See Cautela.
' United States v. Tureaud, 20 F. E. 623-24 (1884),
cases, Billihgs, J. See also Swart v. Kimball, 43 Mich. i Merchants' Nat. Bank v. Cook, 95 U. S. 346 (1877),
451 (1880). cases. Hunt, J. ; Dutoher v. Wright, 94 id. S57 (1876)
4 State V. Davie, 62 Wis. 308 (1885). cases; Stucky v. Masonic Bank, 108 id. 74 (1883).
s [The Thompson, 3 Wall. 163 (1865), cases, Davis, J. ' May V. Hammond, 144 Mass. 152 (1887), cases.
" Stacey v. Emery, 97 U. S. 646 (1878). ' Grant v. First Nat. Bank of Monmouth, 97 U. S. 81
' Wiggins V. People, 93 U. S. 478-80 (1876), cases, Clif- (1S77), Bradley, J.
ford, J. * Exp. Milligan, 4 Wall. 112 (1866), Davis, J.
6 Gordon v. Gordon, 48 Pa. 334 (1864); Butler v. But- 6 18 Conn. App. 10.
ler, 1Pars. Sel. Cas. Eq. 337 (1849). « 6 Wheat. 108; 2 Saw. 150; 59 Pa. 333.
 CAVEAT 159 CENSUS

Cautionary. By way of warning ; made The fundamental inquiry is whether, under the cir-
cumstances ofthe ease, the buyer had the right to rely
or done in anticipation of a change in cir- and necessarily relied upon the judgment of the
cumstances; providing for an adverse con-
tingency. The rule applies to a purchaser at a judicial sale:
seller.'
Cautionary judgments may sometimes be entered he takes the defendant's interest only.''
or confessed to bind lands or to charge special bail. SeeCoMMENnATio; Deceit; Dictum, Gratis; Fraud,
Cautionary orders are intended to provide for in- Actual ; Sale, Judicial ; Sample ; Sound, 8 (2).
demnity against loss by reason of an injunction issued, i Caveat venditor. Let the seller take
CAVEAT. L. Let liim take heed; let heed.
him beware. This maxim of the civil law expresses a doctrine
A formal notice or warning to an officer or contrary to the rule of caveat emptor of the common
law. An implied warranty of title on the sale of a
a court not to do a specified act ; as, not to
chattel is common to both systems; but while in the
probate a will, grant letters of administra- civil law a fair price implies a warranty also of the
tion, issue letters-patent for an invention or soundness of the article, by the common law, as seen
for land, — until the person procuring the above, to make the vendor answerable for the quality
there must be either an express warranty or fraud on
order can be heard in opposition to the con-, his part. The civil law maxim applies to executory
templated act or proceeding.2 sales, to contracts for goods to be manufactured or
Caveator. He who interposes a caveat. produced, and to sales where the buyer has no oppor-
Caveatee. He against whom a caveat is tunity to inspect the article purchased.'
interposed. Caveat viator. Let the traveler take
Protects the rights of one person against rights care.
wliich, without it, might arise in favor of another A traveler upon a highway must use reasonable
person out of the proposed proceeding. Thus, for care in detecting and avoiding defects in the roa4.*
example, it secm-es time to perfect an invention See Sidewalk; Street.
without the risk of a patent being granted to another — CEASE. See Ratio, Cessante, etc.
allows an opportunity to show priority of invention
Where a lot was to revert if a school -house ' ' ceased "
and title.' to stand on it for two years, and none was built, held,
Caveat actor. Let the doer beware. that the lot did not revert. A thing cannot " cease "
Caveat emptor. Let the buyer beware. until after it has begun.'
Insurance conditioned to be void if the premises
.A purchaser of property must examine and
" cease to be operated " as a factory was held not void
' judge for himself as to its title and quality, because of a temporary suspension on account of yel-
unless dissuaded by representations.
In the absence of fraud or an express warranty, the low fever.'
CEDE. See Cession.
purchaser of realty has no relief against a defect in CEMETERIES. See Burial.
the title, or for the unsuitableness of the land for a
A rating, numbering, valu-
particular purpose, either of wliich an examination, CENSUS.
which he was free to make, would have revealed. And ing, assessing.
so as to personalty, in the absence of imposition or " Representatives and direct Taxes shall be appor-
of an express assurance, no warranty of title or of tioned among the several States . according to
quality is implied. The maxim does not apply where their respective numbers. . The actual Enumera-
a specific article is ordered for a known pui-pose, nor tion shall be made withui three Years after the first
where merchandise is sold not by sample nof.under Meeting of the Congress of the United States, and
the Inducement of an express warranty, but with op- within every subsequent Term of ten Years, in such
portunity for thorough inspection. In other cases a Manner as they shall by Law direct." '
warranty te implied that the article will reasonably In connection with the ascertainment of the num-
answer the purpose for which it is ordinarily used. ber of inhabitants, the act of Congress provides for ta-
Where there is neither fraud nor warranty, and the quiries as to age, birth, marriage, occupation, and
buyer receives and retains the goods without objec-
tion, he waives his right to object afterward. Where ' Kellogg Bridge Co. v. HamUton, 110 U. S. 116, 112-15
the buyer has no opportunity to inspect, and no war- (1884), cases; Wissler v. Craig, 80 Va S3 (1885): BurweU
ranty is given, the law implies the condition that the V Fauber, 31 Gratt. 463 (1871), cases.
con- >Oslerberg v. Union Trust Co., 93 U. S. 428 (1876);
thing shaU fau-ly answer the description in the
tract.* 105 111. 339.
' See Wright v. Hart, 18 Wend. 453 (1837), Walworth,
IE. S. §718. (1851),
Ch.; ib. 432; Hargous v. Stone, 5 N. Y. 81-84
> See Slocum v. Grandin, 38 N. J. E. 488 (1884).
>R. S. §4902. * Cornwell v. Commissioners, 10 Exoheq. •774 0855).
* Miller v. Tiffany, 1 Wall. 309 (1863); Barnard v. Kel- « Jordan v. HaskeU, 63 Me. 192 (1874).
logg, 10 id. 388 (1870); 2 Kent, 478; 1 Story, Eq. § 212; • Pass V. Westei-n Assurance Co., 7 Lea, 707 (1881).
3 Bl. Com. 165. 7 Constitution, Art. I, sec. 2, cl. 3. See R. S. tit. XJCSI.
 CENT CERTIFICATE
160

other matters of general interest. For a refusal to

answer an inquiry a small penalty is imposed. There ity and make the meaning of the averments
is no attempt to inquire into private affairs, nor are clearly intelligible.'
the courts called upon to enforce answers to inquiries. ■ Three degrees of certainty were formerly recog-
Similar inquiries usually accompany the taking of a nized: Certainty to a common intent— words
census of every country, and they are not deemed to used in their ordinary sense, buf susceptible of a dif-
ferent meaning. This degree was required in defenses
encroach upon the rights of the citizen.^ and in instruments of an ordinary nature. Certainty
CETTT. See Coin.
to a certain intent in general — the meaning as-
CENTER. See Filum ; Road, 1 ; Street. certainable upon a fair and reasonable construction,
CEPI; CEPIT. See Capebb, Cepi, Cepit. without recurrence to possible facts which do not ap-
CERA. See Seal, 1. pear. This degree was required in indictments and
declarations. Certainty to a certain intent in
CERTAIN. Known, established, definite :
particular — such technical accuracy of statement
as, a certain date, a certain instrument. See as precluded all question, inference, or presumption.
Certum ; Custom ; Debt. This was required in estoppels and as to disfavored
Since " uncertain " may include any doubt, whether
reasonable or unreasonable, a jury should not be told A negotiable instrument must have certainty as to
that if they feel uncertain that a witness is to be payor, payee, amount, time, fact of payment, and,
believed, they should acquit." perhaps, place of payment.*
Certainty. 1. Assurance; confident be- A postal card containing the words " Send us pice
lief: freedom from doubt or failure; also, of counter screen " was held to present a case of in-
curable uncertainty; and the judge properly refused
that which is established beyond question.
to submit to the jxny to determine whether " pice "
Compare Contingency ; Then : When. meant " piece " or " price." *
The certainty of the law is of the highest conse- CERTIFICATE.5 A writing giving as-
quence. See Hardship. - surance that a thing has or has not been
Moral eertaintu. A state of impression
done, that an act has or has not been per-
produced by facts in which a reasonable mind formed, that a fact exists or does not exist.
feels a sort of coercion or necessity to act in
To " certify " is to testify to in writing: to
accordance -with it.^ make known or establish as a fact. The
The phrase, borrowed from the publicists and meta-
physicians, signifies only a very high degree of prob- word is not essential to a "certificate : " it is
ability. .Proof bsyond a reasonable doubt is enough that the law calls a statement a cer-
proof to a moral certainty, as distinguished from an tificate.6 See Check, Certified.
absolute certainty. As applied to a judicial trial for Certificates are such as are authorizetj or required
crime, the two phrases are synonymous and equiva- by law, and such as are purely voluntary. " Author-
lent; each has been used by eminent judges to explain ized or required by law "are: a certificate of a bal-
the other.* See further Doubt, Reasonable. ance due, of costs, of a divorce, that a married
3. Distinctness, accuracy, clearness of state- .woman has been decreed a feme sole trader, that a
bailkrupt has been discharged, that an alien has been
ment ;opposed to uncertainty and ambigu-
naturalized, that a physician is qualified to practice
ity, q. V. medicine; a certificate of copyright, or of a trade-
Generally refers to written language. mark registered; a certificate that a document is au-
In pleading, statement of alleged facts so thentic, or genuine; an officer's return of service of
clear and explicit as to be readily understood proc^^ "Voluntary" certificates include: ceitlfl-
by the opposite party who is to make answer, eates of benefits receivable, of check, of deposit, of
interest, of loan, of no defense, of search, of stock, of
by the jury which is to find the truth, and
scrip, of transfer, a receiver's certificate, qq. v.
by the court which is to pronounce judg- Voluntary certificates are not conclusive evidence
ment. ^ of the facts they state, except where, otherwise, an
Consists in alleging the facts necessary to innocent party would be the loser. Certificates re-
quired by law of ofloers are conclusive of the facts
be stated, so distinctly as to exclude ambigu-
1 [Gould, Pleading, IV, sec. 24.
» Be Pacific Railway Commission, 38 F. E. 250 (1S87), ' See Coke, Litt. 303 a; Gould, Plead, m, sec. 52;
Field, J. ; R. S. § 2171. Steph. Plead. 380; 3 Cranch, 0. C. 56; 5 Conn. 423; 9
« State V. Ah Lee, 7 Oreg. 258 (1879). Johns. 314.
s Montana v. McAndrews, 3 Monta. 165 (1878), Wade, "See 1 Parsons, Notes & Bills, 30, 37; 34 Am. Law
C. J.: Bur. Giro. Bv. 199. Reg. 719-24 (1885), oases; 69 Iowa, 649.
* Commonwealth v. Costley, 118 Mass. 23 (1875), Gray, 442< Cheney
(1886). Bigelow Wire Works v. Sorrell, 142 Mass
C. J. See also United States v. Guiteau, 10 F. K. 164
° L. certificatus, assured, made certain.
» See Andrews v. Whitehead, 13 East, 102, 107 (1810). « State V. Sohwln, 65 Wis. 218 (1886): Webster.
 CERTIORARI 161 CESSION

mentioned, but fraudulent procurement may be shown. prosecutor as a matter of right, and to a defendant as
Certificates authorized by statute are evidence of such a matter in discretion.*
facts only as the offlcei' may certify under the statute. ' Will not, in general, be issued where the party has
3. A writing made by a court, a judge or another remedy, as by appeal."
an officer tliereof, and properly autlienti- Bill of certiorari. An original bill, in
cated, to give notice to another court of a equity, to remove
court. a cause into a higher
thing done in the court a quo. See Opin-
ion, 3, Division of. States the proceedings in the lower court, the in-
CEBTIORABI. competency inthe powers of such court to do com-
L. To be certified. A
plete justice, etc. Rarely used in the United States."
writ by which the record of a proceeding in a CERTUM. L. Perceived, determined:
lower court is removed into a higher court definite, known, certain.
for review.
Certum est quod certum reddi po-
The emphatic word in the Latin writ, which read: test. That is certain which can be made
quia certis de causis certiorari volumus, tor as much
as concerning certain causes we wish to be certified. certain — or reduced to a certainty.
From certior, the comparative of certvs, Imown, When the law requires certainty, that is accepted
established. See Certum. for certainty which, by computation or testimony, can
After indictment found, a writ of certio- be shown to be already certain; as, in questions re-
specting the_sum to be paid on a negotiable instru-
rari facias [that you cause to be certified]
ment, the liquidation of damages for non-performance
maybe had to certify and remove the indict- of a contract, reasonable time, and the like.*
ment, with all the proceedings thereon, from CESSANTE. See Ratio, Cessante, etc.
any inferior court of criminal jurisdiction CESSER,. A ceasing ; formerly, neglect
into the court of king's bench.^ llpf duty. Also, a yielding up, a cession, q. v. :
The writ, at common law, issued out of as, thfe cesser of an interest conferred by a
chancery or the king's bench, directed, in
the king's name, to the judges or oflicers of CESSIO. L. A giving up ; surrender. See,
the inferior courts, commanding them to re- Cession.
wijl.s
turn, before him, the record of a cause de- Cessio taonorum. A surrender of goods.
pending before them, that the party may In civil law, an assignment for the benefit of
have more sure and speedy justice or such creditors.
other justice as he shall assign to determine Discharged the debtor to the extent of the property
the cause.' made over; and exempted him from imprisonment.
The writ has been extended, and the practice under French, cession des bi&is.^
it regulated, by statutes in each State. Speaking gen- CESSION. A yielding up; transfer. See
eral y, itis employed for removing statutory proceed- Cessio.
ings for completion, when the lower court fails to do
so; it serves as an auxiliary process to obtain a full Cede: to give up, yield up.'' Compare
Abandon, 1.
return to other process; it effects a review of the de-
terminations ofspecial tribunals, commissioners, and Concession. A grant, as of lands, be-
magistrates; it secures an inspection of the record tween sovereignties. Recession. A re-
where a writ of habeas corptis has been siq^out.
conveyance bya sovereign.
t7nless a statute directs otherwise, or palpable injus-
Thereby public property passes from one govern-
tice will be done, it does not lie to review a decision ment to the other, but private property remains as
based on a matter of fact, nor as to a matter resting
before, and with it those municipal laws which are
in discretion; nor does it lie for an error in formality,
designed to secure its peaceful use and enjoyment. As
substantial justice being dispensed. a matter of course, all laws, ordinances, and regula-
The application for the writ must disclose a proper
tions in conflict with the political character, institu-
case upon its face. The plaintiff may have to furnish
security for the demand, with interest and costs, be- ' See 4 Bl. Com. 321 ; Exp. Hitz, 111 U. S. 766 (1884).
fore the writ will operate as a supersedeas, q. v. 'Alabama Great Southern R. Co. v. Christian, 82
The judgment is that the proceedings be quashed
Ala. 309 (1886), cases.
or affirmed, in whole or in part. At common law
' Story, Eq. PI. § 298; 2 Hale, PI. Cr. 215.
neither party recovered costs. * See 1 Bl. Com. 78; 2 id. 143; 2 Kent, 480; 2 Black,
At common law, also, the writ was granted to a
504; 99 U. S. 439; 101 id. 633; 9 Col. 279; 73 Ga. 92; 80
Va. 761 ; 69 Wis. 600; 61 id. 183; 66 id. 427; 67 id. 434.
' See 1 Whart. Ev. §§ 120-86, cases; 10 Oreg. 847. »91 U. S. 724.
'4B1. Com. 380. "See 2 Bl. Com. 473; 1 Kent, 422; 15 Wall. 605; 32-
a [Dean v. State, 63 Ala. 154 (1879); 18 Fla. 523; 15 F. R. 1.
Blatch. 386; 108 U. S. 31. ' Somers v. Pierson, 16 N. J. L. 184 (1837).
(11) _
 CESTUI CHALLENGE
162

tions, and constitution of the new government are at

4. Objection to a juror or jurors drawn to
once displaced.^ See Land, Public; Pueblo.
CESTUI. He ; that one ; the one. Also try a cause.
Challenge to the array. An exception
spelled cesiuj/. See Addenda^- // ^ to the whole panel in which the jury are
Pronounced cgst-we. A law- Erench term,' corre-
sponding to the classic French c' est lui {ceXu€): it is arrayed or set in order by the sheriff in his
for him that, etc. Plural, cestuis.
return. 1
The reason which, before awarding the venire, would
Cestui que trust. He for whom a trust
be sufficient to cause it to be directed to the coroner
exists, or was created : the beneficiary under
or to elisors, will be sufficient to quash the array when
a trust.2 made by an officer of whose partiality there is any fair
The que is pronounced kS. See further TRttsT, ground of suspicion; also, if the sheriff arrays the
Cestui, etc.
panel under the direction of either party, i
Cestui que use. He for whom a use — Challenge to the polls. An exception
exists : he for whose benefit land is held by to particular jurors.
another.' See further Use, 3, Cestui, etc. Lies for any matter showing disqualifica-
Cestui que vie . He for whose life — land tion. Also known as " principal challenge"
is held by another : * he whose life measures
and as the " challenge for cause."
the duration of an estate.^ Challenge for cause. For which a reason
CP. An abbreviation of the Latin con- is assigned, — to the array or to the polls.
ferre, compare. An objection to a particular juror; and may be
Used in references to analogous cases or subjects. "general" — that he is disqualified from serving in
CH. An abbreviation of chancellor, chap- any case, or "particular" — that he is disqualified
ter, chief. froin serving in ttie action on trial.*
Vhallenge for favor. Of the same nature
CHALN". See Absteaot; Evidence, Cir-
cumstantOBLiaATION,
ial ; 1. and efiEect as a principal challenge "propter
It is incorrect to speak of a body of circumstantial
evidence as a "chain," and allude to the different affectum."
Peremptory challenge. For which no rea-
circumstances as the "links." A chain cannot be son is assigned.
stronger than its weakest link. The metaphor may
perhaps be correctly applied to the ultimate and es- Principal challenge. 1. "Propter defec-
sential facts necessary to conviction in a criminal' tum "— for disability : as, alienage, infancy,
case; but it is not true that every minor circumstance unsound mind, insu'fiicient jsroperty. 3.
introduced to sustain the ultimate facts must be " Propter affectum " — for bias or partiality :
proven with the same degree of, certainty.^ as, opinion formed ; of kin to a party, or of
CHAIBJVLAIT. See Desceiptio, Persoiise.
the same fraternity or corporation ; his attor-
CHALLENGE.' 1. A request to fight — ney, servant, or tenant, or entertained by
to fight a duel. him ; promised money for verdict ; sued by
Whether made by word or letter, is indictable at
common law. Tends to a breach of the peace. He exceptant in an action involving legal mal-
who knowingly carries «■ challenge for , another is ice ;being formerly a juror or an arbitrator
guUty of the offense." See Phize-mght. in the matter ; influenced by scruples against
2. Objection to the legality of a vote about the punishment. 8. "Propter delictum" —
to be cast. See Ballot. for an offense committed: as, convicted of
3. Objection to a cause being tried before treason, forgery, perjury, or otlier crimen
a particular judge on account of alleged
bias, prejudice, interest, or other disquali- A jiu-or unsuccessfully challenged for cause maybe
fication. challenged peremptorily. In felonies, at common
falsi.3
law, thirty-five peremptoi-y challenges were allowed
the accused; at present the number is about twenty in
' Chicago & Pacific R. Co. v. McGlinn, 114 U. S. 547 capital cases; in civil cases, if allowed at all, o^ly to
(1885), Field. J.
2 3 Bl. Com. 328. a very limited extent. The State is allowed peremp-
toiy challenges in capital cases, the number varying
>2 Bl. Com. 338; 4 Kent, 301; 1 Washb. E. P. 103. in the different States.
*3B1. Com. 123; j6. 46'l. When a challenge for bias, actual or implied, is dis-
» [1 Washb. E. P. 88. allowed, and the juror is peremptorily challenged and
" Clare V. People, 9 Col. 133 (1886), Helm, J.
' Mid. E. chalenge^ a claim: F. chalotige, a dispute, ' 3 Bl. Com, 359.
accusation. 'Cal. Penal Code, § 1071; 70 Oal. 11.
« See 4 Bl. Com. 160 ; 3 East, 581 ; 6 Blackf . 30 ; 1 Dana, " See 8 Bl. Com. 361-63; 4 id. 362; 29 Kan. f 0; 17 S. &
524. E. 162.
 163
CHAMBER CHAMPERTY

excused, and a competent juror is obtained in his which he belongs, or extend to the matters with which
place, no injury is done the accused, if, until the jury his court has nothing to do.'
is completed, he has other peremptory challenges "A judge at chambers" is simply a judge acting
which he can use.^ out of court.' See Vacation.
Experience has shown that one ot the most effective CHAMPERTY.3 A bargain with a
means to free the jury-box from men unfit to be there plaintiff or defendant, eampum partire, to
is the exercise of the peremptory challenge. . . The
number of challenges must necessarily depend upon
divide the land or other matter sued for be-
the discretion ot the legislature, and may vary accord- tween them, if they prevail : whereupon the
ing to the condition of different communities, and the
champertor is to carry on the party's suit at
difficulties in them of securing intelligent and impar- his own expense. . . The purchasing of
tial juries.
Originally, by the common law, the crown could a suit or right of suing.*
Champart, in the French law, signifies a similar
challenge peremptorily without limitation as to num-
ber. By an act passed in the time ot Edward I, the division of profits, being a part of the crop annually
right was restricted to challenges for cause. But, by due to the landlord by bargain or custom. *
rule of court, the crown wrfs not obliged to show cause Champertor. One who purchases or pro-
till the whole panel was called. Those not accepted motes another's suit; a person chargeable
on the call were directed to stand aside; and if a full with champerty. Champertous. Infected
jury was not otherwise obtained, the crown was re- with champerty.
quired to show ^ause against those jurors; if no suffi-
cient cause appeared, the jury was completed from Champerty is the unlawful maintenance
them. of a suit in consideration of some bargain to
The right to challenge is the right to reject, not to have a part of the thing in dispute, or some
select, a juror. If from those who remain an impar-
tial jury is obtained, the constitutional right of the ac- profit out of it.'
A common example is (or was) the case of a con-
cused ismaintained.^
tract by an attorney to collect a claim for a percent-
Challenges are to be made before the jury is sworn. age.' Also of a champertous character are: purchases
In the Federal courts the justness of a challenge is of demands involving litigation, of pretended titles,
determined by the judge, without the aid of triors." and like claims which cannot be realized upon except
See Jurt; Opiniox, 2; TRmas; Voia DraE.
CHAMBER. A room in a house, used by As
lawsuit.'
between an attorney and his client, it is essen-
for purposes of a dwelling, of an office, or tial that the attorney prosecute the suit at his own
expense. 8 ,
of a court. See House, 1 ; Stak-Chambeb ;
Where the right to compensation is not confined to
Survey, Of land. an iDterest in the thing recovered, but gives a right
Chambers. In London, the offices of bar- of action agamst the party, though pledging the avails
risters. of the suit as security tor payment, the agreement is
Chambers, or at eham.bers. A private not Some
champertous.^
courts have ruled that if the fact that a suit is
room or other place where parties may be
being prosecuted upon a champertous contract comes
heard and orders made by a judge, in such to the knowledge of the court in any proper manner,
matters as the law does not require shall it should refuse longer to entertain the proceeding.
be considei-ed in open court or by a full court. Other coiu-ts have held, what seems supported by the
Of such are acts done in a court room while better reason, that the fact that there is a champer-
tous contract for the prosecution of a cause of action
the court is not in session.
Jurisdiction at chambers Is incidental to and grows is no ground of defense thereto, and can only be set
out of the jurisdiction of the court itself. It is the up by the client against the attorney when the cham-
pertous agreement is sought to be enforced. . The
power to hear and determine, out of court, such ques- tendency is to relax the common-law doctrine so as to
tions arising between the parties to a controversy as
might well be determined by the court itself, but which
the legislature has seen fit to intrust to the judgment ' Pittsburg, Ft. W., &c. E. Co. v. Hurd, 17 Ohio St.
146-47 (1866).
of a single judge, out of court, without requiring " Whereatt v. Ellis, 65 Wis. 644 (1886).
them to be brought before the court in actual session. ' Sham'-perty.
It follows that th« jurisdiction of a judge at cham-
bers cannot go beyond the jurisdiction of the court to « 4 Bl. Com. 163. See a Story, Eq. § 1048; 4 Hughes,
683; 10 F. E. 633; 63 Ind. 317; 22 Wend. 405.
> Spies -B. Illinois (The Anarchists' Case), 123 U. S. <■ Stanley v. Jones, 7 Bing. '377 (1831), Tindal, C. J.
168 (Nov. 2, 1887), Waite, C. J. ; Hopt v. Utah, 120 id. 436 « See Ackert v. Baker, 131 Mass. 437-^ (1881), cases;
(1887). McPherson v. Cox, 06 U. S. 404, 416 (1877); Atchison,
'Hayes v. Missouri, 180 U. S. 70-71 (1887), cases, &c. E. Co. V. Johnson, 29 Kan. 227 (1883), cases.
Field, J.
' 2 Story, Eq. §§ 1048-57.
8 E. S. § 819; Reynolds v. United States, 98 U. S. 157 sphUlips V. South Park Com'rs, 119 111. 637 (1887).
(1878). 9 Blaisdell v. Allen, 144 Mass. 335 (1887), cases.
 164
CHANCE CHANCERY

permit greater liberality of contracting between at- Lord chancellor. The presiding judge
torney and client than was formerly allowed, for the
in the court of chancery.
reason that the condition of society which gave rise to
the doctrine has, in a great measure, passed away. In In the courts of the Roman emperors he was a chief
some States the common-law rule is altogether re- scribe or secretary, afterward invested with judicial
pudiated.^ powers and supervision over other officers. From the
The English common law and statutes against empire the name passed to the church: every bishop
maintenance and champerty had their origin, if not had a chancellor, the principal judge of his consis-
their necessity, in a different state of society from that tory. And when the modern kingdoms were estab-
which prevails at the present time. When the doc- lished, almost every state preserved its chancellor,
with different jurisdictions and dignities. In all of
trine was established, lords and other large land-
holders were accustomed to buy up contested claims them he had supervision of such instruments of the
against each other, or against commoners with whom crown as were authenticated in the most solemn man-
ner. When seals came into use he had the custody of
they were at variance, in order to harass and oppose
those in possession. On: the other hand, commoners, the king's great seal.^
by way of self-defense, thinking that they had title to The office. is created by delivery of the king's great
land, would convey part of their interest to some seal into the custody of tjie nominee. -He becomes
a privy counsellor by his office and prolocutor of
powerful lord, in order, through his influence, to se- the house of lords by prescription. He appoints all
cure their pretended right. The want of sufficient
written conveyances, and records of titles, and the justices of the peace. Being formerly an ecclesiastic,
feudal relation of villein and liege lord, afforded facil- presiding over the king's chapel, he b^pame keeper of
ities for the combinations and oppressions which fol- the king's conscience, visitor to all hospitals and col-
lowed this state of things. The power of the nobles leges of the king's founding, and patron of certain of
became mighty in corrupting the fountains of justice. the king's livings. He is the general guardian of all
infants, idiots, and lunatics ; he superintends all chari-
To remedy these evils, the law against both mainte- table uses. These powers belong to him apart from
nance, and champerty was introduced.'^ the extensive jurisdiction he exercises in his judicial
CHAI^CE. A thing happens by chance
capacity in the court of chancery. • See Chancery, 1 ;
to a person which is neither brought about Woolsack.
norpre-estimated by his undei-standing.' See Vice chancellor. One of a class of equity
Game, 2; Medley. judges who held court independently of the
CHANCELLOR." 1. In England, sev- lord chancellor, but whose decisions were re-
ei-al officers bear this name. viewable in his court. They perhaps orig-
Chancellor of tlie exchequer. A high inally acted in his place.
officer of the crown, who sometimes sat in 3. In the United States, the judge of a
court, sometimes in the exchequer chamber, court of equity.
and, with the regular judges of the court, As a judicial title, in use in Alabama, Del-
saw that matters were conducted to the king's aware, Kentucky, Mississippi, and New
advantage. His chief duties now concern Jersey. See Chancery, 3.
the management of the royal revenue. 3. A person sitting as a judge in equity ; as
Under the Judicature Act of 1873, he is de- in saying that a circumstance in a case would
prived of his judicial functions.^ See Ex- cause a " chp,ncellor " to hesitate to enter a
chequer. decree in favor of a particular person. See
Title, Marketable.
'Courtright v. Burnes, 13 F. E. 317 (1883), cases, CHANCEB,Y.2 1. In England, the high-
McCrary, J.; ib. 328-29, oases; s. o. 3 McCrary, 63, est court next to parliament.
fi8-75, cases. See generally Fowler v. CaUam, 102
N. Y. 397 (1886). Originally consisted of two distinct tribu-
'Hovey v. Hobson, 51 Me. 64 (1863), Dickerson, J. nals : an ordinary court, or court of common
See also S9 Ala. 680; 70 id. 118, 179; 17 Ark. 624; 40 law ; and an extraordinary court, or court of
Conn. 570; 57 Ga. 284; 73 111. 13; 89 id. 183; 6 T. B. Mon.
416; 1 Pick. 416; 132 Mass. 388; 4 Mich. 538; 13 Ired. L. equity.
The "ordinary court" was the more ancient. It
198; 4 Duer, 375; 13 Ohio St. 175; 3 Baxt. 457; 39 Wis. had jurisdiction in proceedings to cancel letters-
506; 19 Alb. Law J. 468-69 (1879), cases; 19 Cent. Law
J. 402-8 (1884), oases; 34 id. 198 (1887), cases. patent, in cases of ti-averse of office, and the like;
and of personal actions against officers of the court.
' [Goodman v. Cody, 1 Wash. T. 335 (1871). Whenever any such cause came to an issue of fact,
* F. chaticelier: L. L. cancellariuis; a cancellando, the chancellor, having no power to summon a jury,
from canceling — illegal letters-patent, — 4 Coke, Inst.
88; 3 Bl. Com. 46. He stood near the screen, cancellus, > 3 Bl. Com. 46, 47, 49.
before the judgment seat,— Skeat. See also 1 Camp- ' Chancelry: L. L. cancellaria, the record-room of
bell's Lives Ld. Ch. 1-3. a chancellor,— Skeat. L. cancelli, bars, lattice — to
»3B1. Com. 44, 55. keep off the people,— 3 Chltty, Bl. Com. 46.
 165
CHANCERY CHARACTER

sent the record to the court of king's bench for trial. CHANGE. See Alter; Fundamental;
Out of this ordinary tribunal also Issued original writs Paety, 2; Venue.
imder the great seal, commissions of charitable uses,
of bankruptcy, of lunacy, etc. ; for which the court 'CHANGE. See Exchange, 3.
was said to be always open: whence called the offlcina CHANNEL. The main channel is that
justitice, ^ bed of a river over which the principal body
The "extraordinary court" became the court of of water flows.i See Aqua, Currit, etc. ;
greatest consequence. When the courts of law, which Navigable.
followed strictly the directions of the original writs,
CHAPTER. See Statute, 2.
■pronounced a hai'sh or imperfect judgment, applica-
tion for redress was at first made to the king in person CHAEACTER. The qualities impressed
and his coimsel; they, in time, referred the matter to by nature or habit on a person, which dis-
the chancellor and a select committee, or, by degrees,
tinguish him from other persons. These con-
to the chancellor alone, — the referee being empow-
ered to mitigate the severity or to supply the defects stitute his real character; while the quali-
of the judgment pronounced in the courts of strict ties he is supposed to possess constitute his
law, upon consideration of all the circumstances in estimated character or reputation.
each case." See Chancellor.
The equitable jurisdiction of the court grew out of "Reputation'' may be evidence of character,
but it is not character itself. ^
the exigencies of the times and of judicial administra-
tion: as from petitions to the king in council; cases as That which a person really is, in distinction
to which the precedents furnished no form of action from that which he may be reputed to be. 3
for a remedy ; cases calling for relief from fraud, ac- Character [reputation] is the slow-spread-
cident, mistake, forfeiture; cases involving uses and
trusts. The well-defined development of its distinct
ing influence of opinion, arising from the de-
exercise dates from the timq of Edward I (about 1300) ; portment of a man in society.*
but its character was crude until the time of Cardinal In many cases it has been said that the regular
Woolsey and Sir Thomas Moore, under Henry VIII mode of examining a witness is to inquire whether he
knows the general character of the person whom it is
(1509-47). Lord Bacon reduced the practice to some-
what of a system. But Sir Heneage Finch (about intended to impeach, but in all such cases .the word
" character " is used as synonymous with " reputa-
1680) so laid the foundation of modern equity jurispru-
tion." What is wanted is the common opinion, that
dence as to have been called " the father of equity." in which there is general concurrence; in other words,
l,ater lord chancellors, notabl.7 Hardwicke and Mans-
general reputation or character attributed. That is
field, extended and improved the system.'
Under the Judicatm-e Act of 1873 the court of presumed to be indicative of actual character. "
chancery became the Chancery Division of the High General character. The estimation in
Court of Justice, retaining its former extraordinary which a person is held in the community
jurisdiction; with part of its former ordinary jurisdic- where he has resided.
tion transferred to the Court of Appeal, and the rest Ordinarily, the members of that community are the
to the Courts of Common Law. only proper, witnesses to testify to such character. |
A too severe application of common-law rules Evidence of character is founded on opinion, and
brought the court of chancery into existence. . . a witness testifying as to the general character of an-
The body of chancery law is nothing else than a sys- other must have the means of knowing such char-
tem of exceptions — of principles applicable to cases
falling within the letter, but not within the intention, Good character. Good general reputa-
of particular rules.* acter.^
tion for one, several, or many qualities — as,
2. In the United States, "chancery" cor-
for honesty, chastity, veracity, peaceable-
responds to " equity," and a " court of chan- ness, integrity.
cery " to a " court of equity," that is, a court Moral .character and conduct may be proven: to
exercising equitable powers. afford a presumption that the person is not guilty of
Here equity jurisprudence has grown up chiefly a criminal act; to affect the damages where the
since the close of the last century, the English com-t amount depends upon character and conduct; to im-
of chancery being followed as a model. In some of peach or confirm the veracity of a witness.
the States, and in the national tribunals, chancery
powers are exercised by the common-law courts." ' St. Louis, &c. Packet Co. v. Keokuk Bridge Co., 31
See further Equity.
F. K. 757 (1887), Love, J.
1 3 Bl. Cora. 47-48. = [Carpenter v. People, 8 Barb. COS (1860), Welles, J.
' 3 Bl. Com. 49-.50, 50-95. ' Andre v. State, 5 Iowa, 394 (1857), Woodward, J.
l,Story, Eq. §§ 41-52; 3 Bl. Com. 53-55; 1 Kent, < Trial of Hardy, 24 St. Tr. 1079 (17i,5), Erskine (Ld.),
494.s See
arguendo.
s Knode v. Williamson, 17 Wall. 688 (1873), Strong, J.
• Pennock v. Hart, 8 S, & R. 377 (1822), Gibson, J.
• 1 Story, Eq. §§ 54-58; 1 Pomeroy, Eq. §§ 1-42; 3 Story, See State v. Egan, 69 Iowa, 637 (1882).
Const. §§ 506-7, 644-45.
« Douglass V. Tousey, 2 Wend. 354 ("
 CHARACTER 166
CHARGE

In civil suits the character of a party is not admis- son that while every man is supposed to be fully pre-
sible in evidence unless the nature o£ the action in- pared to meet those general inquiries, it is not likely
volves his general character or directly affects it. In he would be prepared, without notice, to answer as to
the case of a tort, when the defendant is charged
with fraud from mere circumstances, evidence of his particular acts.'
Unwillingness to believe a man under oath must be
general character is receivable to repel it. Such evi- based upon two facts: that the witness knows the
dence will be rejected, whenever the general charao-
reputation for veracity among the man's neighbors,
t-er is involved by the plea only and not by the nature and that such reputation is bad."
of the action. Character in regard to a particular Proof of a general disposition to do a thing is not
trait is not in issue, unless the trait is involved in the proof of that thing. Thus, proof of a habit of gam-
matter charged. ^ bling when drunk is not proof that the person gambled
The bad character of the plaintiff may be shown when drunk on a particular day; nor will proof of a
in suits for damages for seduction, breach of promise habit of loaning money at a usurious interest prove
to marry, slander, libel, and malicious prosecution, that a loan was made in a particular instance.^
qq. V. The burden of proof is on the assailant." See further Baj), 1; Chaste; Communication, Priv-
In homicide, evidence^ of prevloias good character ileged, 1;Rephtatiok; Sdspioion, 3.
may be made the basis on which to form a doubt.' CHARGE. 1, V. To lay on, to place
But when the evidence is positive and satisfactory,
good character cannot overcome the presumption of
under or upon, as, a burden, a duty, a trust.
guilt: ■■ against facts strongly proven, good character
Opposed, discharge, q. v.
cannot avail." (1) To place under a duty or obligation
The old rule, that evidence of the good character with respect to knowing or doing: as, to
of the defendant is not to be considered unless other
evidence leaves the mind in doubt, has been much
charge one with notici3 of such facts or in-
criticised; the weight of authority is now against it. formation as inquiry {q. v.) would disclose,
If evidence of reputation is admissible at all its or with notice of what the law requires ; to
weight should be left to be determined by the jury in charge an acceptor or indorser by present-
connection with all the other evidence in the case.
The circumstances may be such that an established
reputation for good character, if it is relevant to the
ment.*
(2) To impose, upon a person or thing, the
issue, would alone create a reasonable doubt, al- duty or obligation of paying money: as, to
though without it the other evidence would be con- charge the estate of a decedent with a debt ;
vincing.^ to charge a legacy upon land devised; to
A witness called to impeach the veracity of another
charge a purpart in partition with owelty.
witness may be asked: " Is the character of the wit- See Leg ACT; Owelty.
ness for truth on a par with that of mankind in
general?" In Euglish courts the inquiries are: "Are (3) To enter, in an account, an item of
you acquainted with the character of the witness? moiiey due. See Account, 1.
What is his general character? Would you believe (4) To place upon one the burden of crime
him under oath? " ^
or guilt ; to accuse of a wrong or offense; to
Courts differ as to whether the general reputation of indict.
a witness for truth and veraciiy is the true and sole
criterion of his credit, or whether the inquiiy may The implication is, usually, that the offense has
not properly be extended to his entire moral character been alleged according to the forms of law — that
and estimation in society. They also differ as to the legal process has issued.' See Charge, n. (2, b).
right to inquire of the impeaching witness whether (5) For a jury to be charged with the fate
he would believe the other on his oath. All agree, of a prisoner,' see Jeopardy.
I however, that the first inquiry must be restricted
(6) To instruct in the nature of a duty im-
either to his general reputation for truth and veracity,
or to his general character; and that it cannot be ex- posed :as, for a judge or a coroner to charge
a jury.
tended to particular facts or transactions, for the rea-
Chargeable. Subject to charge; capable
' 1 Greenl. Ev. §§ 54-65, cases; 4 Wall. 471; 86 Alb. L.
J. 364. As to evidence of, in civil cases, see particularly of being or of becoming charged : " as, to be
Simpson v. Westenberger, 28 Kan. 757-62 (1682), cases.
.."1 Whart. Ev. §§ 47-56, cases. ' Teese v. Huntingdon, 23 How. 11-13 (1859), cases,
» Kilpatrick v. Commonwealth, 31 Pa. 216 (1858). Clifford, J. See, generally, as to evidence, 25 Cent.
* United States v. Freeman, 4 Mas. 510 (1837). Law J. 146 (1887), cases.
'Commonwealth ti. Webster, 5 Cush. 325 (1850); 59 " Spies eta(. v. People,, 122 111. 208(1887).
Cal. 601; 68 id. 29; 50 Md. 833. = Thompson v. Bowie, 4 Wall. 471 (1860), cases.
'Commonwealth v. Leonard, 140 Mass. 470, 479 ' 94 U. S. 433; 101 id. 697.
(1836), cases, Field, J. ; 26 Cent. L. J. 515-19 (1888), cases. ' Day V. Inhabitants of Otis, 8 Allen, 478 (1864), Bige-
'State V. Randolph, 24 Conn. *367 (1836); Langhorne low, C. J.
V. Commonwealth, 76 Va. 103 (1882); State v. Rush, 77 » State V. Connor, 6 Coldw. 313 (1868).
Mo. 519 (1883). ' 46 Vt. 625; 107 Mass. 426.
 CHARGE 167
CHARGE

chargeable with a loss;i a tax chargeable overcharge," signifies, as ordinarily, a charge

on land; a pauper chargeable upon a dis- of more than is permitted by law.i
trict. See also Rent-charge ; Surcharge.
"Chargeable," in Its ordinary acceptation as appli- (3) Charge upon a Person, Anything in
cable to the imposition of a duty or burden, signifies the nature of a burden, or of a duty or obli-
capable ot being charged; subject, liable, proper to be
charged." gation, resting upon one or more individuals.
While- in this substantive sense the word
2, n. A burden, duty, obligation, responai-
biUty, or disability — imposed upon a person "charge" may have it meaning correspond-
or attached to a tiling. Opposed, discharge ing to any one of the foregoing verbal senses,
(which see). it distinctly signifies :
(1) Charge upon a Thing, Whatever is in (a) The duty of paying money.
the nature of a lien or incumbrance {qq. v.) (b) Responsibility for a wrong or an of-
resting upon an object of property and to be fense, asfor negligence or crime, particularly
satisfied out of it or out of the proceeds of the latter — formal accusation of criminal
conduct.
it: as, a legacy to be paid out of land. Of
this nature also are assessments and taxes An accusation, made in a legal manner, of
upon realty, 3 qq. v. illegal conduct. 2
Chaxges. (a) Pecuniary impositions upon May imply an original complaint made in the first
instance preliminary to a formal trial.' See Indict-
property — real estate. ment.
(b) Book-entries of moneys due. (c) Instruction judicially given by the
(c) Expenses incurred in settling an es- judge of a court to a jury in regard to their
tate.< See Account, 1. duty as jurors, in particular to a traverse
(d) Referring to litigation, something more jury as to their duty in finding a verdict.
than costs, q. v. An authoritative exposition of the law
(e) In equity pleading, allegations in denial
which it is incumbent upon the jury to obey.*
or avoidance of a defense. Delivered to grand jurors before they proceed to
Charge and discharge. Describes the consider indictments and presentments; and to petit
or common jurors before they retire to deliberate over
mode formerly pursued in accounting be-
the evidence in a particular case.
fore a master: the complainant exhibited
the items of his claim in a form called a General charge. Instruction upon a
case in its entirety. Special charge.
charge, while the respondent exhibited con-
Made, at the request of counsel for a party,
trary items or claims by way of discharge —
upon one or more points in the case.
as, a release. 5 It is clearly error to charge upon a conjectural state
Charging order. An order of court that of facts, of which no evidence has been offered. The
stock shall stand pledged to the payment of instruction presupposes that there is some evidence
a judgment. See further OnoER, 2. before the jury which they may think sufficient to
establish the facts hypothetically assumed in the
Charging part. Allegations, in a bill in
opinion of the court; and if there is no evidence
equity, intended to anticipate and controvert which they have a right to consider, then the charge
the answer.* does not aid them in coming to a correct conclusion,
Collateral charge. An obligation in a but the tendency is to mislead and embarrass them.
bond binding the heir, executor, and admin- It may induce them to indulge in conjectm-es, instead
istrator,— descends upon the heirs and holds ot Where
weighingthere
the istestimony.'
an entire absence of testimony, or
assets by descent.' it is all one way, and its conclusiveness is fi*ee from
Overcharge. In a statute providing for doubt, it is competent tor the court to direct the jury
recovery from a railroad company "for any to find accordingly.'
1 Woodhouse v. Eio Grande R. Co., 67 Tex. 418(1887),
1 101 U. S. 19.
Stayton, A. J.
' Walbridge v. Walbridge, 48 Vt. 63.5 (1874). » Tompert v. Lithgow, 1 Bush, 180 (1866).
s See Harris v. Miller, 71 Ala. 34 (1881); 59 id. 317; 69 s Ryan v. People, 79 N. Y. .598 (1880); 16 Nev. 91.
id. 127; 25 id. 333. * See Commonwealth v. Porter, 10 Mete. 385-86 (184.5).
' [Goodwin v. Chaffee, 4 Conn. 166 » United States v. Breitling, 20 How, 254(1857), Taney,
» See Daniel, Chanc. Piact. 1173. C. J.; Goodman v. Simonds, ib. 359 (1857); Michigan
• See Story, Eq. PI. § 31. Bank v. Eldred, 9 Wall. 553 (1869).
' [2 Bl. Com. 340. • Meguire v. Corwine, 101 U. S. Ill (1879); ib. 6S7.
 ]68
CHARGE
CHARITY

When, after giving a party ■the benefit of every in- It is not ei'ror to refuse to give an instruction asked
ference that can fairly be drawn from all the evidence, for, even if correct in point of law, provided those
it is insufacient to authorize a verdict in his favor, it is given cover the entire case and submit it properly to
proper for the court to give the jury a peremptory in- the jmy.i
struction for the other party. ^ Failure to embrace all the issu& in one instruction
The court may sum up the facts, and submit them, is not error, if they are included in those given, which,
with the inferences of law, to the judgment of the on the whole, are correct, not contradictory, nor cal-
jury. But care is to be taken to separate the law from culated to mislead."
the facts, and to leave the latter, in unequivocal terms, Although an instruction, considered by itself, is too
to the jury, as their true and peculiar province." general, yet if it is properly limited by others, so that
With the charge of the court upon matters of fact, it is not probable that it could have misled the jury,
and with its commentaries upon the weight of evi- the judgment will not be reversed.'
dence, the Supreme Court has nothing to do; such If the court has laid down the law fully and cor-
observations are understood to be addressed to the rectly, itis not bound to repeat an instmction in terms
jury merely for their consideration as the ultimate varied to suit the wishes of a party.*
judges of matters of fact, and entitled to no more im- Where a charge embraces several distinct proposi-
portance than the jury choose to give them.^ tions, a general exception to it will not avail the party
But, as the jurors are the triors of the facts, an ex- if any one of the propositions is correct.**
pression of opinion by the court should be so guarded Where any portion of the charge is correct, an ex-
as to leave the jury free in the exercise of their own ception to the entire charge will not be sustained.*
judgments.* A nice criticism of words will not be indulged when
A general statement will be taken in connection the meaning of the instruction is plain and obvious,
with the facts in the particular case.^ and cannot mislead the jury.'
In some States the court neither sums up the evi- Exceptions to a charge are made after the jury re-
dence, nor expresses an opinion upon a question of tire; and each must cover a distinct point or part
fact, the charge being strictly confined to questions of only. See further Direct, 2; Instruct, 2; Jury, Trial
law, leaving the evidence to be discussed by counsel, by; Nonsuit; Point.
and the facts to be decided by the jury without com- CHAKGE D'AFFAIRES. See Minis-
ment or opinion by the court. But most of the States ter, 3.
have adopted the English practice, where the judge CHAEITY. 1. In its widest sense, aU
always sums up the evidence, and points out the con-
clusions which in his opinion ought to be drawn from the good affections men ought to bear to-
it; submitting them, however, to the judgment of the ward each other; in a restricted and com-
juiy. The judge of a Federal coiut may express his mon sense, relief of the poor.8
opinion on the facts.*
At a trial by jury in a Federal court the judge
The benevolence which limits itself to giv-
may express his opinion upon the facts; the expres- ing alms to the poor comes within the re-
sion, when no rule of law is incorrectly stated and all stricted definition but falls far short of that
facts are ultimately submitted to the determination true charity which has its» origin in the two
of the jur.y, cannot be reviewed by writ of error; and
great sources of all good deeds — the love of
the power of, the court in this respect is not controlled
by a State statute forbidding judges to express an God and the love of man. *•
opinion upon thefacts.' Nor can a State constitution In considering what is lawful to be done
prohibit the judges of the Federal courts from charg- on the Lord's day, " charity " includes every-
ing juries with regard to matters of fact.^ thing which proceeds from a sense of moral
No error is committed in refusing a prayer for in-
structions consisting of a series of propositions, pre-
sented as an entirety, if some of them should not be iLaber v. Cooper, 7 Wall. 566 (1808); Indianapolis,
&c. R, Co. V. Horst, E3 U. S. 295 (1876); The Schools v.
given to the jury."
Risley, 10 Wall'. 115 (1869); Wheeler v. Winn, .53 Pa.
127-29 (1.866).
' Marshall v. Hubbard, 117 U. S. 419 (1886), cases.
, 3 M'Lauahan v. Universal Ins. Co., 1 Pet. 182 = Muehlhausen v. St. Louis R. Co., 91 Mo. 346 (1886),
Story, J. Norton, C. J.
s Carver v. Jackson, 4 Pet. 80 (1880), Story, J.; » Spies et al. u. People, 122 III. 245-46 (1887), cases.
Hayes v. United States, Bi F. R. 663 (188T), cases. ■• Northwestern Mut. Life Ins. Co. v. Muskegon Bank,
• Tracy v. Swartwout, 10 Pet. 96 (1833), McLean, J. ; 122 U. 8.510(1887), cases,
Games v: Stiles, 14 id. 327 (1840). ° Lincoln v. Claflin, 7 Wall. 183, 139 (1868); Johnston
' Northern Bank v. Porter Township, 110 U. S. 615 ■u. Jones, 1 Black, 221 (1861).
(1884), cases; 6 Wheat. 264. « Boogher v. N. Y. Lite Ins. Co., 103 U. S. 98 (1880),
• Mitchell V. Harmony, 18 How. 130 (1881), Taney, C.J. cases.
' Vicksburg & Meridian R. Co. v. Putnam, 118 U. S. ' Rogers v. The Marshal, 1 Wall. 654 (1803).
653 (1886), cases. Gray, J. ' Morice v. Bishop of Diu-ham, 9 Ves. *405 (1804), Sir
"St. Louis, &c. R. Co. V. Vickers, 182 U. S. 360(1887). William Grant. Approved, Same v. Same, 10 id. *640
• Worthington v. Mason, 101 U. S. 149 (1879); Beaver (1805), Lord Eldon.
V. Taylor, 93 id. 54 (1876), cases. » Price V. Maxwell, 28 Pa. 36, 85 (1857), Lewis, C. J.
 169
CHARITY CHARITY

duty, or a feeling of kindness and humanity, God, or for the love of your neighbor, in the catholic
and universal sense — given for these motives, and to
and is intended wholly for the relief or com-
these ends — free from the stain or taint of every con-
fort of another, and not for one's own benefit sideration that is personal, private and selfish; " and
or pleasure.! this definition was approved in Price's Case, 28th Pa.
Charity is active goodness. It is doing ante. A more concise and practical rule is that of
Lord Camden, adopted by Chancellor Kent, by Lord
good to our fellow-men. It is fostering those Lyndhurst, and by the Supreme Court of the United
institutions that are established to relieve
States — " A gift to a general public use, which ex-
pain, to prevent suffering, and to do good to tends to the poor as well as the rich." Jones v. Will-
manliind in general or to any class or portion iams, Ambl. 652 (17BT) ; Coggeshall v. Pelton, 7 Johns.
of mankind. Tlie term no doubt takes on Ch. 294 (18i3); Mitford v. Reynolds, 1 Phil. Ch. 191
(1842); Perin v. Carey, 24 How. 508 (1860).'
shades of meaning f rojn the Christian relig-
ion.2 See further Sunday. A charity, in the legal sense, may be more
fully defined as a gift, to be applied consist-
2. A gift, devise, or trust, intended to pro-
mote a charitable use. ently with existing laws, for the benefit of
an indefinite number of persons, either by
In law, oiarity and eiaritable use are converti-
ble terms. The latter was originally employed in bringing their minds or hearts under the in-
contradistinction to " superstitious use," and desig- fluence of education or religion, by relieving
nated such " good and worthy use " as was deemed their bodies from disease, suffering, or con-
not within the pm-view of statute 23 Hen. VIIl (153J),
c. 10, which abolished certain uses invented by the straint, by assisting them to establish them-
clergy. But, inasmuch as that statute swept away selves in life, or by creating or maintaining
many meritorious uses, statute 1 Edw. VI (1547), c. 14, public buildings or works, or otherwise less-
was passed to legalize, as recited in the preamble,
ening the burdens of government, i
several "good and godly uses" — such as schools It is immaterial whether the purpose is called
for educating the youth, provision for the poor, etc. " charitable " in the gift itself, it it is so described as^
This preamble became the germ of the law of *' chari- to sbow that it is charitable in its nature. ^
table uses." Before 1347, such uses had never been A testator must be taken to have used the word
grouped together as a distinct class, and pe'culiar " chai'itable " in its legal sense.^
principles applied to them. Since the enactment The statute of Elizabeth is the principal source of
of statute 43 Eliz. (IfiOl), c. 4, no uses have been re- legal charities,— has become the general rule of char-
garded as '■ charitable " except uses within the letter ities. The signification of the word is chieflj derived
or spirit of that statute; and these are wholly " pub- from it, and not from the popular understanding of
lic*'in nature.' "good affection " between men, nor of relief of the
What is a charity is rather a matter of de-
That statute names as distinct charities: 1, relief of
scription than of definition.*
A charity is a gift for a public use ; as, a the aged, impotent, and poor; 2, maintenance of sick
and maimed soldiers and mariners; 3, schools of
gift in aid of the poor, to learning, to relig- poor.*
learning; 4, free schools; 5, scholars in the universi-
ion, to a humane object. -^ ties; 6, houses of correction; 7, repair of bridges,
A precise definition of a legal charity is hardly to
be found in the books. The one most commonly used ports, havens, causeways, churches, sea-banks, high-
ways; 8, the education and preferment of orphans;
in modem cases, originating in the judgment of Sir 9, marriage of poor maids; 10, support and help of
William Grant, confirmed by that of Lord Eldon, in young tradesmen, handicraftsmen, persons decayed;
Morice's Case, 9th and 10th Vesey, ante — that those 11, relief and redemption of prisoners or captives;
purposes are considered charitable which are enumer- 12, aid of the poor in paying taxes; 13, setting out of
ated in the statute of 43 Elizabeth, or which by analogy
are deemed within its spirit and intendment— leaves soldiers.*
These char'ties are but instances under three gen-
something to be desired in point of certainty, and eral classes: 1, relief and assistance of the poor and
suggests no principle. Mr. Binney, in his argument in needy; 2, promotion of education; 3, maintenance of
the Oirard Will Ouse. p. 41 (1844), defined a charitable public buUdings and works. The inquiry in each case
or pious gift to be " whatever is given for the love of
~Jackson v. Phillips, 14 Allen, 555-58 (1867), Gray, J.
See also Detwiller v. Hartman, 37 N. J. E. 353 (1888);
~j Doyle V. Lynn
C. J. & Boston B. Co., 118 Mass. 197 (18T5),
cases. Gray, White t.-. Ditson, 140 Mass. 353 (18S5); Humane Society
= Allen V. DufBe, 43 Mich. 7 (1880), Cooley, J.
V. Boston, 142 id. 27 (18S6). Definitions collected, Prot-
' Owens V. Missionary Society, 14 N. Y. 385, 3S9, 897, estant Episcopal Education Society v. Churchman,
v. 80 Va. 762-68 (1885).
403 (1856), Selden, J. See also Baptist Association
a Howe v. Wilson, 91 Mo. 49 (1886).
Hart, 4 Wheat. 2, 27 (1819); ib., App. 1; IT How. 151-52,
165; 9Ves. *405; 30 Kan. 638; 8 Bl. Com. 273; 2 Story, s Town of Hamden o. Rice, 31 Conn. *335 (1836),
Eq. §§ 1133-49. Ellesworth, J.
* Perin v. Carey, 24 How. 494 (1860), Wayne, J. < Ould V. Washington Hospital, 98 U. S. 309-11 (1877),
»Kain V. Qibboney, 101 V. S. 365 (1879), Strong, J. Swayne, J.
 170
CHARITY CHAEITY

is: Is the purpose of the gift within the principle and port of education for the benefit pf the public without
reason^of the statute, although not expressly named any view to profit, it constitutes a charity which is
in it. '
Gifts for repairing a church, for building an organ purely
Trustspublic. 1
for public charitable purposes must be for
gallery, for erecting and maintaining a parsonage, for the Ijneflt of an indefinite number of persons; for, if
the worship of God, for the advancement of Christian- all the beneficiaries are personally designated, the
ity, for the benefit of ministers of the gospel, have trust lacks the element of indefiniteness, which is one
been held to be valid charities.'' characteristic of a legal charity. If the founder de-
The statute of Elizabeth was simply remedial and scribes the 'general nature of the trust, he may leave
ancillary to the common law.^ Courts of equity had, the details of its administration to be settled by trust-
and still have, an original and inherent common-law ees under the superintendence of a coiutof chancery."
jurisdiction over charities, except in a few States, as If the general object of a bequest is pointed out, or
in Maryland, North Carolina, and Virginia.* if the testator has provided a means of doing so by
. While the provisions of the statute of Elizabeth the appointment of trustees with that power, the gift
have been re-enacted in some States, in others new will be treated as suflSciently definite for judicial
purposes have been enumerated. In Connecticut, the
District of Columbia, Maryland, New York, North cognizance.
When a charitable * ti*ust has been fully constituted,
Carolina, and Virginia, the statute seems to have been and the funds have passed into the hands of the in-
repudiated; in Georgia, Indiana, Iowa, Kentucky, stitution or organization intended for its administra-
Massaohu-setts, Rhode Island, Vermont, and in some tion, the court of chancery becomes its legal guardian
other States, it is still in force.* and protector, and will take care that the objects of
the trust are duly pursued, and the funds rightfully
A good charitable use is "public," not in
appropriated. But where contributions to a charity
the sense that it must be executed openly are proposed to be made upon certain express Condi-
and in public, but in the sense of being so tions, the rights of the donors stand upon contract;
general and indefinite in its objects as to be and if the conditions are not performed, their obliga-
deemed of common and public benefit. Each tion to contribute is discharged.*
individual benefited may be private, and A devise to a corporation in favor of a charity is
the charity may be distributed in private and
There is no implication, in such case,- that the cor-
valid.'
■by a private hand. Opposed is a "private poration isof a "religious " nature. *
Where there is a valid devise to a, corporation in
charity : " not a public or general charity, in
view of the statute of Elizabeth or of a court trust for charitable purposes, the sovereign may en-
of chancery, but an association for the mut- force the execution of the trust, by changing the ad-
ministrator, ifthe corporation be dissolved, or, if
ual benefit of the contributors and of no
not, by modifying and enlarging its franchises, pro-
others. Such a case wants the essential ele- vided the trust be not perverted, and no wrong be
ment of indefiniteness in the immediate done to the beneficiaries.^
objects, if not that of gratuity in the contri- Equity will not enforce a trust whose object is the
propagation of atheism, infidelity, immorality, or hos-
bution.« tility to the existing forms of government.^
A charitable use is essentially shifting. When a The essentials to a valid charity are: ability in the
trust defines the beneficiaries with certainty, it is donor; capacity in the donee; an instrimient or means
rather private than public. " Charity begins where whereby it is given; a thing to be given; = a legal pur-
uncertainty of the beneficiaries begins." ? pose; a gift not absolute, but available through the
When private property is appropriated to the sup-
medium of a trust.*
Equity will not admmister a foreign charity, unless
' Jackson v. Phillips, 14 Allen, 551 (1867), cases. it be valid under the laws of both States, and the
Gray, J.
2 Bishop's Residence Co. v. Hudson, 91 Mo. 676 (1887), 1 Gerke v. Archbishop Purcell, 25 Ohio St. 247, 248
cases.
(1874), White, J.
' Ould V. Washington Hospital, ante. " Russell V. Allen, 107 U. S. 167 (18S3), cases, Gray, J. ;
■•Kain v. Gibboney, Ould v. Hospital, ante; Vidal American Academy of Arts v. Harvard College, 12
V. Girard's Executors, 2 How. 155 (1844); Howe v. Wil- Gray, 596 (18-32), Shaw, C. J.
son, 91 Mo. 49 (1886), cases; 80 Va. 773; 107 U. S. 167. s Howe V. Wilson, 91 Mo. 53 (1886), Black, .T. See also
^ See 1 Bouvier, 304, cases. Webster u Morris, 66 Wis. 366 (1886).
"Saltonstall v. Sanders, 11 Allen, 466, 464 (1865), * Printing House i,. Trustees, 104 U. S. 727 (1881),
Bradley, J.
cases. Gray, J. See also Jones i;. Habersham, 107
U. 3. 174 (1883), cases; s. c. 3 Woods, 443; Beckwith v. » Perin v. Carey, Vidal v. Girard's Executors, ante.
The Rector, 69 Ga. 569(1882); De Wolf u. Lawson, 61 ' De Wolf V. Lawson, 61 Wis. 480 (1884).
Wis. 480(1834); Protestant Epis. Education Society v. ' Girard's Executors v. Philadelphia, 7 Wfril. 14-16
Churchman, 80 Va. 718 (1885); Kent v. Dunham, 142 (1868); Philadelphia v. Fox, 64 Pa. 182 (1870).
Mass. ai6. 218 (1886). 8 Manners ■v. Library Company, 98 Pa. 173 (1880),
' Dodge V. Williams, 46 Wis. 98, 91-103 (1882), oases, cases; Jones v. Habersham, 107 U. S. 189 (1882), cases.
Ryan, C. J. ; Fontain v. Bavenel, 17 How. 384 (1834). ' Owens V. Missionary Society, 14 N. T. 335 (1856).
 171
CHART CHAKTER

trustee has capacity to receive and carry out the Charter-party. A contract by which the
trust. 1
By the law of England, before the statute of Eliza-
owner lets his vessel to another for freight.i
beth, and by the law of this country at the present A contract by which an entire ship, or some
day (except where resti-icted by statute or decision, as principal part thereof, is let to a merchant
in Virginia, Maryland, and New York), trusts for pub- for the conveyance of goods on a determined
lic charitable purposes are upheld imder circum-
stances as to which private trusts would fail. Bein^
voyage to one or more places.^
All contracts under seal were anciently called
tor objects of permanent interest and benefit to the
'.' charters," and divided into two parts, one for each
public, they may be perpe,tvial in their duration; and
party. Whence charta-partUa; a writing divided;
tlie instruments creating them should be so construed
like an indenture (g. v.) at common law.*
as to give them effect if possible, and to carry out the Charterer. He who hires a vessel under
general intention of the donor, when clearly mani-
fested, even if the particular form and manner pointed a " charter-party." Charter-money. The
out by him cannot be followed." sum agreed to be paid for the use of the
Board of charities. A board of public charities, vessel.
in several of the States, is a body of commissioners, Charge of navigating the vessel may be retained by
appointed by the governor of each State (possibly by the owner or assumed by the hirer.
and with the consent of one of the houses of the legis- The contract is generally effected through a broker
lature), and charged with the duty of examining into
acting for the ship-owner.
the condition of all charitable, reformatory or cor-
A ship thus chartered is opposed to a "general
rectional institutions in the State; having regard, in
particular, to the methods of government and instruc- The instrument is not usually under seal. It names
tion, the official conduct of trustees or officers, the the vessel, master, and contract parties; and specifies
-finances, buildings, etc. ship."
the tonnage, the times and places for loading and dis-
See Auerican; Association, 3; Benevolence; charge, the charter-money, and the allowance for
Cy Pres; Indigent; Legacy; Mabshal, 2; Masses; delay. It is a commercial instrument, subject to the
Mortmain; Protestant; Subscribe, 2; Visit, 2. rules applicable to other commercial contracts. It is
CHART. As used in the copyright law, to be construed liberally, in agreement with the inten-
does not include sheets of paper exhibiting tion of the parties, the usages of trade in general and
tabulated or methodically arranged informa- of the particular trade.*
An action in rem cannot be maintained for the
tion.
breach of a charter-party when the voyage was not
In the Copyright Act of 1790, where the word was undertaken, and no part of the cargo delivered on
first used, a chart was a marine map, as is shown by
all the dictionaries of the time. A definition covering See Defect; Dispatch; Freight; Lading, Bill of;
board.*
Sail.
such a sheet of paper was introduced into Worcester's
dictionary in 1864, and into Webster's in 1865. The 2. The primary meaning — a deed or sealed
word, in the present act, is separated from the word
instrument — is obsolete. Used alone, the
"book," and kept with the word "map" and other
words of artistic import, thus showing an intention to word now refers to certain instruments
continue its use in the sense of a chart of the class which emanate from government, in the
of maps, and other works of art.* See Copyright. nature of letters-patent.^
Compare Map.
The king's grants, whether of lands, honors, liber-
CHARTA. L. Paper; a writing; a ties, franchises, or aught besides, are contained in
charter. See Magna Chaeta; Officina; charters or letters-patent,^ g. u.
Chaktarum. Charter of incorporation. The instru-
CHARTER. 1. A deed is sometimes ment evidencing the act of a legislature,
called a charter from its materials.* See governor, court, or other authorized depart-
Charta. ment or person, by which a corporation is or
Charter-land. Land held by deed under was created.
The charter of a private corporation, duly ac-
certain rents and free services; book-land.
cepted, is an executed contract. It is construed
Opposed, folk-land; which was held by an
assurance i-n writing.* See MANOR.
1 Spring V. Gray, 6 Pet. 164 (1833), Marshall, C. J.
"Vandewater v. Mills, 19 How. 91 (1856), Grier, J.;
' Taylor v. Trustees of Bryn Mawr College, JM
N. J. E. 101 (1881), cases: 13 Eep. 80. Ward V. Thompson, 22 id. 333 ((859).
s 2 Kent, 201.
2Kussell V. Allen, ante; 13 Wall. 723. See generally
23 Cent. Law J. 364-68 (1886), cases. iLowber v. Bangs, 2 Wall. 744 (1864); 113 V. S. 40;
3 Taylor ■./. GUman, 24 F. E. 633-34 (1885), cases, 115 id. 353.
Wheeler, J. « The Missouri, 30 P. E. 384 (1887), cases.
* a Bl. Com. 895. • See 1 Story, Const. § 161.
S.2B1. Com. 90. '2 Bl. Com. 346; 1 id. 108, 473.
 CHARTER 173
CHATTEL

strictly, against the corporation, and in favor of the

or doubt arising out of the terms used by the legis-
public. Nothing passes but what is granted in explicit lature must be resolved in favor of the public. ^
terms. The charter of a munfcipal corporation is not
a contract, i See Corporation; FuNDAMEauTAL; Impair; Rail-
;
road Ultra Vires.
The charter of a bank is a franchise, and not tax- CHASE. See Game, 1.
able if a fair price has been paid for it and accepted
in lieu of taxation. No power of sovereignty will be CHASTE, Actually pure as to conduct
and principle; virtuous. ^^^^^^
held to be surrendered, unless expressed in tei-ms too
plain to be mistaken.^ Chaste
moral character. Personal^^^^e ;
purity. ^^^^
A power reserved by the legislature to alter, amend,
or repeal a charter authorizes it to make any altera- , Refers not to reputafcon but to moral
tion or amendment of a charier, granted subject to
such power, which will not defeat or substantially qualities — to what a person really is. 2
impair the object of the grant or of any right vested Actual personal virtue — actually chaste
under it, and which the legislature may deem neces- and pure in conduct and principle.
sary for securing either that object or a public right. ^ Applies to one who, having fallen, has subsequently
To " create " a charter is to make one which never reformed and become chaste. ^ j
existed before. To "renew" a charter is to give a Although a female, from ignorance or other cause,
new existence to one which has been forfeited, or may have so low a standard of propriety as to commit
which has lost its vicality by lapse of time. To " ex- or permit indelicate acts or familiarities, yet, if she
tend" a charter is to give one which now exists have enough of the sense of virtue that she would not
greater or longer time in which to operate than that to surrender her person, unless seduced to do so under a
which it was originally limited.* promise of marriage, she cannot be said to be a woman
It is a well settled rule of construction of grants to of " unchaste character " within the meaning of a stat-
corporations, whether public or private, that only such
ute punishing seduction under a promise of marriage.*
' powers and rights can be exercised under them as are Chastity. The virtue which prevents un- ^
clearly comprehended within the words of the act or lawful sexual commerce.
derived therefrom by necessary implication, regard
Offenses against chastity are: fornication, adultery,
being had to the objects of the grant. Any ambiguity
incest, seduction, lascivious caiTiage, keeping or fre-
quenting houses of prostitution, bigamy, marrying the
» Dartmouth College v. Woodward, 4 Wheat. 518, 634 husband or wife of another, obscene libels, sodomy,
bestiality.
(1819), MarshaU, C. J. ; ib. 708, 713, Story, J.
» Jefferson Branch Banku. Skelly, 1 Black, 446 (1861); Solicitation of chastity. Inviting another
Thomas v. West Jersey R. Co., 101 U. S. 83 (1879), to commit adultery or fornication.
a Close V. Glenwood Cemetery, 107 U. S. 476 (1683), A solicitation is not an attempt. Until some for-
cases, Gray, J. See also Union Passenger Ry. Co. v. bidden overt act is committed, the law will not detect
Philadelphia, 101 id. 539-40 (1879); Spring Valley Water and punish the intent. The contrary rule would be
Works V. Schottler, 110 id. 352-53 (1884); Coimty of
Santa Clara v. South. Pacific R. Co., 18 F. R. 406-8 (1883). impracticable,
Charges of sunchaste conduct are seldom made in
Although an attempt to shake or limit the conclusion direct words ; usually by insinuation. However made,
reached in the Dartmouth College Case was made in they are slanderous when they convey to the mind of
Bank of Toledo v. Toledo, 1 Ohio St. 633(1853), and in the hearers the meaning that the peraon in question is
other cases at about the same time, the doctrine was
re-asserted and even generalized and extended by the, unchaste.*
See Attempt; Bad, 1; Pretium, Pudicitise.
Supreme Court in Fiqua Branch v. Knoop, 16 How. 369
CHATTEL. Things personal include not
(1853); Dodge v. Woolsey, 18 How. 331 (1855), and cases,
ib. 380, 384. Much space would be needed for expound- only things movable, but something more:
ing the decisions which have applied the doctrine, and the whole of which is comprehended under
for tracing its application to different kinds of char- the general name of "chattels," which Coke
ters. To do so is the less necessary because the legis-
latures have become accustomed to grant charters says is a French word signifying goods —
from the technical Latin caialla, which
subject to a general reserved power to alter or repeal
them. There are, no doubt, a few corporations char- meant, primarily, beasts of husbandry, and,
tered before 1819, and some created since, without res-
ervation of such power, wh|ch are independent of leg- 1 Minturn v. Larue, 23 How. 436 (1B59), Nelson, J. ; 76
islative changes made without their assent; but the Va. 9fU; 11 id. 319.
great mass of private corporations now active are sub- 2 [State V. Carron. 18 Iowa, 375-76 (1865), cases; State
ject to a right reserved to the legislature to make V. Prizer, 49 id. 532 (1878) ; 5 id. 39 1 ; 59 id. 686 ; 70 id. 464 ;
28 Minn. 52.
changes. Addison, Contr. *3, Am. ed., A. & W. (1888),
note. See also New Orleans v. Great Southern Tel,, 3 Carpenter v. People, 8 Barb. 608-9 (1850).
&ci. Co., Sup. Ct. La. (Feb. 23, 1868): 26 Cent. Law J. 233; * State V. Brihkhaus, 34 Minn. 235 (18S5), Mitchell, J.
ib. 234-36 (1883), cases. s Smith V. Commonwealth, 64 Pa. 211-14 (1867), cases;
<Moers v. Mayor, &c. of Reading, 31 Pa: 201 (1853), ,14 id. 226; 7 Conn. 270; 1 Bish. Cr. L. § 767.
Black, C. J. « Kedrolivansfcy v. Niebaum, 70 Cal. 218 (
 173
CHAUD-MEDLEY CHECK

secondarily, all movables in general. In mon prudence cannot guard against: as, using false
weights and measures (g. v.), or falsetotenslaTuTor
Normandy, a chattel stood opposed to a fief
where there is a conspiracy to cheatTi
or feud.i See further Cattle. ' Technically, the offense is "false pretenses."
Any species of property not real estate or Spoken of one in relation to his vocation, the word is
defamatory and actionable.'
freehold.2^L
See Covin; Deceit; Pretenses; Swindle.
CJjIiMR^ersonal. Chattels personal are,
strictljTthings movable : vchich may be an- CHECK.' An order on a bank to pay the
nexed to or attenjj^dln the person of the holder a sum of money at the bank, on pre-
owner, and carried about with him from one sentment of the order and demand of the
part of the world to another.' money.*
Such are animals, household stuff, money, jewels, A draft or order upon a bank or banking
grain, garments, and everything else that can be put house, purporting to be drawn upon a deposit
in motion and transferred from place to place ; ' also, of funds for the payment at all events of a
choses in action; and slaves were.
certain sum of money to a certain person
Chattel real. Chattels real, says Coke, therein named, or to him or his order, or to
are such as concern, or savor of, the realty ;
the bearer, and payable instantly on demand.*
as, terms for years of land, estates by a stat- When accepted, it is an appropriation of so much
ute-merchant, statute-staple, or the like. money of the drawer in the hands of the drawee to
These are called real chattels, as being interests the payment of an admitted liability on the part of
issuing out of, or annexed to, real estate: of which the drawer. The di'awer must have an account with
they have one quality, viz., immobility, which denom- the bank, and, perhaps, money on deposit."
inates them " real ; " but want the other, viz., a suflfl- The payee of a check, before it is accepted by the
cient, legal, indeterminate duration; and this want it drawee, cannot maintain an action upon it against the
is that constitutes them " chattels." The utmost period latter, as there is no privity of contract between
for which they can last is fixed and determinate, either
for a space of time certain, or till a particular sum of A check is not an inland bill of eschailge, though
money be raised out of a particular income; so that them.'
like it. Unlike a bill, it is drawn upon .i bank or
they are not equal, in law, to the lowest estate of free- banker and against funds on deposit; acceptance of it
hold,— alease for another's life.* stops denial of funds; no grace is allowed on it; it is
Se«FixTORE; Goons; Mortgage; Property; Sale. not due until payment is demanded; the drawer is not
CHAUD-MEDLEY. See Medley. discharged by laches in the holder in presenting it for
payment, except to the extent of injury done him;
CHEAT.* Cheats which are punishable and the death of the drawer rescinds authority in the
at common law may be described to be de- bank to pay the check. In other respects checks are
ceitful practices in defrauding or endeavor- governed by the rules applicable to inland bills of ex-
ing to defraud another of his known rights change and promissory notes. When drawn outside
by means of some artful device, contrary to of the State in which the bank is located, they are like

the plain rules of common honesty.^ foreign bills of exchange.'

A check is to be presented or indorsed over to an-
Many acts which would be denounced as cheats by
other holder within such time as is reasonable, taking
the principles of morality are not legally cheats.' into view all the circumstances of the case. The holder
To " cheat and defraud " does not necessarily im- *372.
port the commission of an indictable offense. There- 1 Rex V. Wheatly, 2 Burr. 1127 (1760), Mansfield, C. J. ;
fore, in charging a conspiracy to cheat and defraud, 3 Bl. Com. 165. See 7 Johns. *204; 13 id. *293; 14 id.
the means proposed must be set out, for the informa-
tion of the court and of the defendant.' ' Heard, Lib. & SI. §§ 16, 28, 46; 6 Cush. 185; 5 Wend.
A cheat or fraud, indictable at common law, must 283; 2 Pa. 187.
be such as would affect the public, such as oom- ' Mid. E. chek, a stop: F. eschec, a " check at chess-
play." Cheque is from exchequer, and erroneous,—
1 [8 Bl. Com. 385-86; 19 HI. 584; 13 Johns. '94. Skeat; Webster.
' 2 Kent, 342. ' [BuUard v. Eandall, 1 Gray, 606 (1854), Shaw, C. J.;
■2B1. Com. 387. 10 Oreg. 35. ,
<2 Bl. Com. 386. See Insiu-anoe Co. v. Haven, 95 » 2 Daniel, Neg. Inst. § 1506 (1879): 28Gratt. 170.
U. S. 251 (1877); Hyatt v. Vincennes Nat. Bank, 113 id. « See Merchants' Nat. Bank v. State Nat. Bank, 10
415 (1885); Putnam »;. Westcott, 19 Johns. *76 (1821); Wall. 647-48 (1870), cases; Espy v. Bank of Cincmnati,
2 Kent, 342. 18 id. 604, 619-20 (1873); Gordon v. Mtlchler, 34 La. An.
1 F. escheat: from fraud used by lords of manors to
004(188-2); 12 Rep.
' First Nat. Bank 514.
of Washington u. Whitman, 94 U. S.
procure escheats.
« Hawkins, PI. Cr., b. 1, c. 23, § 1. 343-47 (1876), cases; iOO id. 689. ^
' See People v. Miller, 14 Johns. '372 (1817). 'Re Brown, 2 Story, 513 (1843); Merchants' Bank v.
8 Commonwealth v. Wallace, 16 Gray, 233 (1860), State Bank, Espy v. Bank, supra; Levy v. Laclede
Dewey, J. Bank, 18 F. R. 193 (
 CHECK 174 CHILD

can sue the drawer, if payment is refused; and the

is presumed to know the drawer's signature and the
drawer, in such case, has assumpsit against the bank state of his account. Unless the attention of the bank
for breach of contract. The holder cannot sue the oflttcer is directed beyond these two matters, his re-
bank.i sponse that the check is good will be limited to them,
Checks; regular upon their face, pass as money.'' and will not be extended to the genuineness of the
A bank is not bound to take notice of memoranda and fiUing-in or of the check as to the payee or the
figures on the margin of a check, which a depositor
places there merely for his own convenience, to pre- amount. 1
See Bank, 2; Cashier; Deposit, 2; Donatio, Mortis,
serve information for his own benefit; and in such etc.; Negotiable; Ordek^I. ^
case, the memoranda and figures are not a notice to CHEESE. See Oleomaegahine ; Po-
the bank that the particular check is to be paid only lice. 3.
fi:om a particular fund. So, too, a mark on a deposit
ticket, if intended to require a particular depositto be CHEMISTRY. See Coroner ; Expert ;
kept separate from other deposits, must be in the Process, 2.
shape of a plain direction, else such a duty will not CHICKEW. See ANIMAL: Damage-feas-
be imposed on the bank.s ant; Cruelty, 3; Nuisance; Trespass;
Certified cheek. A check marked "good" Worry.
by the banker. ,
CHIEF. '^ The head: principal; leading;
Implies that there are funds in the bank above, higher, or preceding another or others.
with which to pay it, that the same are set Compare Primary.
apart for its satisfaction, and that they will Chief Executive. The President of tlie
be so applied when the check is presented for IJnited States. See President.
payment.* Chief justice. The presiding judge of a
The act of certifying is equivalent to an accept- court of errors and appeals. See further
ance of the check. The object is to enable the holder
to use the check as money. The bank cJiarges the Judge.
check to the account of the drawer ; credits it in a cer- In chief. A shortened form of the phrase
tified check account; and, when paid, debits that ac- " examination in chief: " the first examina-
count with the amount. The bank thus becomes the
tion of a witness by the party who calls him ;
debtor of the holder.'' the direct examination of a witness.'' See
Memorandum cheek. A check having Examination, 9.
"Memorandum"' or "Mem." wi-itten across
its face. Tenant in chief. See Feud.
A memorandum of indebtedness given by a bor-
CHILD. 1. An infant — in the popular
rower. In the hands of a third person, for value, has senses. See Abandon, 2 (S); Abortion;
the force of a check without restriction. ^ Curtesy; Venter.
The check takes the place of a note, as for a tem- 3. One of tender years; a young person;
porary loan. It is not designed to-be presented at
a youth. See CrueLty, 3; Infant; Servi^
bank, but is for redemption at the time agreed upon." TUDE, 1, Involuntary.
BaiBed check. A check increased in the
3. A legitimate descendant in the first de-
amount for which it was drawn, by fraudu-
lent alteration, q. v.
When money has been been paid upon a raised 4. A legitimate descendant in any degree;
check by mistake, neither party being in fault, it may gree.
but, in this case, "children" is the word
be recovered as paid without consideration. If neither ally.
used; offspring, issue or descendants gener-
party's negligence caused the injury the holder must
bear the loss. When a peraon sends such paper to the
In common parlance, " children " does not include,
bank Upon which it is drawn, for information, the bank any other than the immediate descendants in the first
■ Bank of the Eepublic v. Millard, 10 Wall. 156 (1869). degree of the ancestor. But it may include others, as
where it appears from a will thai there are no other
See generally 20 Cent. Law J. 339-42 (1888), cases.
2 Poorman v. Woodward, 21 How. 275 (1858; ; Downey persons in existence who will answer the description
V. Hicks, 14 id. 249 (18S2). of children except descendants of a degree remoter
» State Nat. Bank of Springfield v. Dodge, 124 U. S. than the first; or, where there could not be any of the
346(1888). Blatchford, J. first degi-ee at the time or in the event contemplated
by the testator; or where he has shown by other
< Merchants' Bank v. State Bank, Espy v. Bank,
Bank v. Whitman, ante; Bank of British North Amer^ words that he used the word " children " as synony-
mous with descendants, or issue, or to designate or
ica, 91 N. Y. 110 (1888).
s Story, Prom. Notes, § 499; 16 Pick. 53S; 32 N. J. L.
96; 11 Paige, 612. ' Espy V. Bank of Cincinnati, 18 Wall. 604, 619 (1873).
' See Tumbull v. Osborne, 12 Abb. Pr. 801-7 (1872), ' F. chef, head, top.
8 1 Greenl. Ev. § 445.
 CHINA 175 CHINESE

inolude illegitimate offspring, gi-andehildren, or Btep- United States, the coming of 'Chinese laborers to the
eMldren. But, ordinarily, the reference is to descend- United States, or their residence therein, affects or
ants in the first degree only.i threatens to aif ect the interests of that country, or to
The word is generally a word of purchase; but not endanger the good order of the said country or of any
so in the case of a grant in the present tense to a man locality within the teiTitory thereof, the government of
and his children, he having no child, as in Wild's China agi'ees that the government of the United States
may regulate, limit or suspend such coming or resi-
Case.''
While the word " children " will include a grand- dence, but may not absolutely prohibit it. The limita-
chlld,' the presumption of law is against such con- tion or suspension may be reasonable and shall apply
struction.* only to Chinese who may go to the United States as
The word itself intends only legitimate children."* laborers . . and immigrants shall not be subject to
Children become emancipated at twenty-one. personal maltreatment or abuse;" and the second
Theii^ duties to their^parents arise out of natural jus- article of which provides that " Chinese subjects,
tice, and compensation. At common law they are not whether proceeding to the United States as teachers,
bound to support an infirm or indigent parent; but students, merchants, or from curiosity, together with
otherwise, now, by statute. They may defend the their body and household servants, and Chinese labor-
parent's pei-son, but may not commit crime at his ers who are now in the United States, shall be allowed
command.* to go and come of their own free will and accord, and
In a contest for the possession of a child, the wel- shall be accorded all the rights, privileges, immunities,
fare of the child is the controlling consideration. The and exemptions which are accorded to the citizens
father will be given the custody of it, unless he is
and subjects of the most favored nation." '
shown to be unfit or incompetent for that office, or The act of May 6, 1882, c. 126 (23 St. L. .58), en-
unless the welfare of the child demands a different titled "An act to execute certain stipulations relating
disposition.' to Chinese," as amended b.y the act of July 5,
Se« further Adopt, 3;. Aoe; Agent; Bastard; Dk- 1884, i;. 220 (23 St. L. 115) — the words in italics being
soendant; Die, Without, etc.; Family; Heir; Infakt; introduced by the act of 1884, while those in brackets
Issue, 5; Name, 1; Nesugence; Orphan; Parest; were in the act of 1882, but were stricken out by the
Pater, Partus, etc.; Perpetuity; Raise; Shelley's amendatory act — provides as follows:
Case; Witness. Whereas, in the opinion of the government of the
CHTNA, DECORATED. See Painting. United States, the coming of Chinese laborers to this
CHIKESE. See Bueial; Citizen; Com- country endangers the good order of certain localities
within the territory thereof, therefore be enacted,—
merce: Laundries; Poucy, 2; Quaran- Section 1. That from and after the [expiration of
tine, 3; Right, Civil Rights Act; Treaty; ninety days next after the] passage of this act, and
White. until the expiration of ten years, the coming of Chi-
The Burlingame treaty of July 28, 1868, de- nese laborers to the United States be, and the same is
clares, Art. 6, that " Chinese subjects visiting or resid- hereby, suspended; and during such suspension it shall
ing in the United States, shall enjoy the same privi- not be lawful for any Chinese laborer to come from
leges. Immunities, and exemptions in respect to travel
and residence, as may be enjoyed by the citizens or any foreign port or place, or, having so" come, [after
the expiration of said ninety da,ys,] to remaili within'
subjects of the most favored nation," and, recipro- the United States.
cally, as to citizens of the United States in China. Sec. 2. The master of any vessel who shall know-
Appeals from the Pacific coast induced the Govern- ingly bring within the United States on such vessel and
of the treaty.' This re- land, or attempt to land, or permit to be landed, any
ment to request
sultedTn the supplemen tal n treaty
a modificatio of November Chinese laborer, from any foreign place, shall be
17, 1880, the first article of which provides that deemed guilty of a misdemeanor, and, on conviction
" whenever in the ojiinlon of the government of the thereof, shall be punished by a fine of not more than
five hundred dollars for each and eveiy laborer so
1 See Mowatt v. Carow, 7 Paige, 339 (1838), Walworth,
brought, and may also be imprisoned for a term not
Ch.; Palmer i'. Horn, 84 N. Y. 530-21 (1881): Ingraham exceeding one year.
V. Meade, 3 Wall. Jr. 43 (185S); Rogers v. Weller, 6 Sec. 3. The foregoing sections shall not apply to
Biss. 168 (1870); Feit v. Vanatta, 31 N. J. E. 84 (1870); Chinese laborers who were in the United States on the
Wlnsor V. Odd Fellows' Association, 13 B. 1. 160(1880); 17th of November, 1880, or who shall have come into
Butler 11. Ralston, 69 (Ja. 489 (1882); Bates v. Dewson,
128 Mass. 3M (1880). the same before the expiration of ninety days next
after the passage of the act to which this act is
= 3 Coke, *17 (1!599); Cannon v. Barry, 59 Miss. 289,
amendatory, nor shaU said sections apply to laborers,
300 (1881), cases; Bannisters. Bull, 16 S. C. 227 (1881).
siJe Paton, 41 Hun, 500 (1886); Be Brown, 29 id. 417 [and] who shall produce to such master before going
<1883), oases. on board such vessel, and to the collector of the port
herein-
at which such vessel shall arrive, the evidence
'Pughu. Fugh, 105 Ind. 556 (1885); 94 id. 407, cases; after required of his being one of the laborers in this
Smith V. Smith, 24 S. 0. 314 (1835).
sMlnot u. Harris, 132 Mass. 531 (1882). section mentioned; nor shall the foregoing sections
•See 1 BI. Com. 453; 4 «. 28; 4 Kent, 345: People v. 1 See Treaty of 1868, 16 St. L. 739; Treaty of 1880, 32
543
Turner, 55 nl. 3&3-^<1870). St. L. 836; Heong v. United States, 112 U. S. 636,
» Be Searritt, 76 Mo. 565, 584 (1883), cases.
(1884); Act 1884, ib. 543; 134 id. 627.
 176
CHINESE CHINESE

apply to the case of any master whose vessel, being four being in and desiring to depart from the United
bound to a port not within the United States, shall
States by land, shall have the right to demand and re-
come within the jurisdiction of the United States by
reason of being in distress or in stress of. weather, or ceive, free of charge or cost, a certificate of identifica-
tion similar to that provided for in section fonr to be
touching at a port on its voyage to any foreign port or issued to such laborers as may desire to leave the
place: provided that all laborers brought on such ves- United States by water; and it is hereby made the
sel shall not be permitted to land except in case of duty of the collector of customs of the district next
absolute necessity, and must depart with the vessel on adjoining the foreign country to which said laborer
leaving port. desii'es to go to issue such certificate, free of charge
Sec. 4. For the purpose of properly identifying or cost, upon application by such laborer, and to enter
Chinese laborers who were in the United States on the the same upon registry books kept as provided for in
17th of November, 1880, or who shall have come into section four.
the same before the expiration of ninety days next Sec. 6. In order to the faithful execution of [arti-
after the passage of the act to which this act is cles one and two of the treaty in] the provisions of this
amendatory, and in order to furnish them with the act, [before mentioned,] every Chinese person other
proper evidence of their right to go from and come than a laborer, who may be Entitled by said treaty
to the United States, [of their free will and accord,] [and] pr this act to come within the United States, and
as provided by the said act and the treaty between who. shall be about to come to the United States, shall
the United States and China dated N'ovember 17, obfc^n the permission of and be identified as so entitled
1880, the collector- of customs of the district from byjme Chinese government, or of such other foreign
which any such laborer shall depart from the United gdmrnment of which at the time such person shall be
States shall, in person or by deputy, go on board each a subject, in each case, [such identity] to be evidenced
vessel having on board any such laborer, and cleared by a certificate issued [under /the authority of said]
or about to sail from his district for .a foreign port, and such government, which certificate shall be in the
on such vessel make a list of all such laborers, which flish language, [or, if not, accompanied by a trans-
shall be entered in registry books kept for that purpose, ItioQ into English, stating such right to come,] and
in whiph shall be stated the individual, family, .all show such permission, with the name of the per-
tribal name in full, the age, occupation, when dtted person in his or her proper signature, and
where followed, last place of residence, physical maj which certificate shall state the individual, family^,
or peculiarities, and all facts necessary for the and tribal name in full, title or official rank, it any,
cation of each of such laborers, which books si the age, height, and all physical peculiarities, former
safely kept in the custom-house; and evei and present occupation or profession, when and where
laborer so departing from, the United States shall be and how long pursued^ and place of residence [in
entitled to, and shall receive, free of any charge or China] of the person to whoih the certificate is issued,
cost, upon application therefor, from the collector, or and that such person is entitled [conformably to the
his deputy in the name of said collector, and attested treaty in] by this act [mentioned] to come within the
by said collector's seal of office, at the time such list United States. If the person so applying for a certifi^
IS taken, a. certificate, signed by the collector or his cate shall be a merchant, said certificate shall, in
deputy, and attested by his seal of office, in such form addition to above requirements, state the nuture,
as the secretary of the treasury shall prescribe, which character, and estimated tialue of the business carried
certificate shall contain a statement of the in- on by him prior to and at the time of his application
dividual, family, and tribal name in full, age, oc- as aforesaid; Provided, That nothing in this act, nor
cupation, when and where followed, [last place of in said treaty, shall be construed as embracing vnthin
residence, personal description, and facts of iden- the meaning of the word " tnerchant " hucksters, ped-
tification,] ofthe laborer to whom the certificate is dlers, or those engaged in taking, drying, or otherwise
issued, corresponding with the said list and registry preserving shell or other fi^h for home consumption
in all particulars. In case any laborer, after having or exportation. If the certificate be sought for the pur-
received such certificate, shall leave such vessel be- pose of travel for curiosity, it shall also state whether
fore her departure, he shall deliver his certificate to the applicant intends to pass through or travel within
the master of the vessel, and, if such laborer shall fail the United States, together with his financial stand-
to return to such vessel before her departxu-e from ing in the country from which such certificate is de-
port, the certificate shall be delivered by the master sired. The certificate provided for in this act, and
to the collector of customs for cancellation. The cer- the identity of the person named therein^ shall, be-
tificate herein provided for shall entitle the laborer to fore such person goes on board any vessel to proceed
whom the same is issued to return to and re-enter the to the United States, be vis4d by the indorsement of
United States upon producing and delivering the same the diplomatic representative of the United States in
to the collector of i customs of the district at which the foreign country from which said certificate issues^ .
such laborer shall seek to re-enter ; and said certificate or of the consular representative of the United States
shall be the only evidence permissible to establish his at the place from which the person is about to depart;
right of re-eritry; and upon [delivery] delivering of and such representative whose indorsement is so re-
such certificate by such laborer to the collector of quired ishereby empowered, and it shall be his duty,
customs at the time of re-entry, said collector shall before indorsing such certificate, to examine into the
cause the same to be filed in the custooi-house and tiy.th of the statements set forth in said certificate,
duly canceled. and, if he shall find that any of the statements therein
Sec. 5. Any Chinese laborer mentioned in, section contained are untrue^ it shall be his duty to refuse
 CHINESE 177
CHINESE

to indorse the same. Such certificate, vlsid as afore- enter by land without producing to the proper officer
said, shall be prima facie evidence ot the fact set forth of customs the certificate required of persons seeking
therein, and shall be produced to the collector of cus- to land from a vessel. And any person found unlaw-
toms [or his deputy] of the port at which the person fully here shall be caused to be removed to the country
shall arrive, and afterward produced to the proper whence he came, [by direction of the President,] and at
authorities of the United States whenever lawfully the cost of the United States, after being brought be-
demanded, and shall be the sole evidence permissible fore some justice, judge, or commissioner of a United
on the part of the person producing the same to es- States court, and foimd to be one not lawfully entitled
tablish a right of entry; but said certificate may be to remain; and in all such cases the person who
controverted, and the facts therein stated disproved, brought, or aided in bringing, such person to the
by the United States authorities. United States, shall be liable to the United States for
Sec. 7. Any person who shall knowingly and all necessary expenses incurred in s\(ch investigation
falsely alter or substitute any name for the name and removal; and all peace officers of the several
written in such certificate, or forge any such certifi- States and Territories are hereby invested with the
cate, or knowingly utter any forged or fraudulent same authority as a marshal or United States marshal
certificate, or falsely personate any person named in reference to carrying out the provisions of this act,
in any such certificate, shall be deemed guilty of a or the act of which this is amendatory, as a marshal
misdemeanor; and, upon conviction thereof, shall be or deputy marshal of the United States, and shall be
fined in a sum not exceeding one thousand dollars, entitled to like compensation, to be paid by the same
and imprisoned in a penitentiary for a term of not officers. And the United States shall pay all charges
more than five years.
for the maintenance and retum.of any person having'
Sec. 8. Tlie master of any vessel arriving from any the certificate prescribed by law as entitling sv/:h per-
foreign place shall, at the same time he delivers a mani- son to come into the United States, who may not have
fest of the cargo, and, if there be no cargo, then at the been permitted to land by reason of any provision of
this act.
time of making a report of the entry of the vessel pur-
suant to law, in addition to the other matter require^ .to Sec. 13. This act shall not apply to diplomatic and
be reported, and before landing, or permitting to land, other officers of the Chinese or other governments
any Chinese passengers, deliver and report to the col- traveling upon the business of that government, whose
lector of customs of the district in which such vessels credentials shall be taken as equivalent to the certifi-
shall have arrived a separate list of all Chinese passen- cate in this act mentioned, and shall exempt them and
gers taken on board his vessel at any foreign place, and their body and household servants from the provisions
all such passengers on board the vessel at that time. of this act as to other Chinese persons.
Such list shall show the names of such passengers, (and Sec. 14. Hereafter no court shall admit Chinese to
if accredited oflcers of the Chinese or of any other citizenship: and all laws in conflict with this act are
foreign government traveling on the business of that hereby repealed.
government, or their servants, with a note of such Sec. 15. The provisions of this act shall apply to all
facts,) and the names and other particulars, as shown subjects of China and Chinese, whether subjects of
by their respective certificates; and such list shall be China or any other foreign power; and the words
sworn to by the master in the manner required by " Chinese laborers " shall be construed to mean both
law in relation to the manifest of the cargo. Any skilled and unskilled laborers and Chinese employed
[willful] refusal or willful neglect of any such master in mining.
to comply with the provisions of this section shall in- Sec. 16. An]/ violation of any provision of this act,
cur the same penalties and forfeiture as are provided or of the act of which this is amendatory, the punish-
for a refusal or neglect to report and deliver a mani- ment of which is not otherwise herein provided for,
fest of cargo. shall be deemed a misdemeanor, punishable by fine
Sec. 9. Before any Chinese passengers are landed not exceeding one thousand dollars, or by imprison-
from any such vessel, the collector or his deputy shall ment for not more than one year, or both fine and im-
proceed to examine such passengers, comparing the
certificates with the list, and with the passengers; and prisonment.
Sec. 17. Nothing contained in this act shall be con-
no passengers shall be allowed to land from such ves- strued to affect any proceeding, criminal or civil,
sel in violation of law. begun under the act of which this is amendatory; but
Sec. 10. Every vessel whose master shall knowingly such proceeding shall proceed as if this act had nat
violate any provision of this act shall be deemed for- been passed.
feited to the United States, and shall be liable to seiz- The convention between the United States and
ure and condemnation in any district into which such China for excluding Chinese laborers from coming to
vessel may enter, or in which she may be found. the United States, signed at Washington Macph 12,
Sec. 11. Any person who shall knowingly bring into, 1888, was as follows: (See Avdexda.^ / rJLj
or cause to be brought into, the United States by land, " Whereas, on the 17th day of November, A. D. 1S80,
or who shall [knowingly] aid or abet the same, or aid a treaty was concluded between the United-States and
or abet the landing from any vessel of any Chinese China for the purpose of regulating, luniting, or sus-
person not lawfully entitled to enter, shall be deemed pending, the coming of Chinese laborers to, and their
guilty of a misdemeanor, and shall, on conviction, be residence in, the United States;
fined in a sum notexceeding one thousand dollars, and " And whereas the government of China, In view of
imprisoned for a term not exceeding one year. the antagonism and much deprecated and serious dis-
Sec. 12. No Chinese person shall be permitted to orders to which the presence of Chinese laborers has
(12)
 178
CHINESE CHINESE

given rise in certain parts of the United States, desires

United States and residing therein. To entitle such
to prohibit the emigration of such laborers from China
to the United States; Chinese subjects as are above described, to admission
into the United States they may produce a certificate
" And whereas the government of the United States from their government or the government where they
and the government of China desire to cooperate in
last resided,' vis6d by the diplomatic or consular repre-
prohibiting such emigration, and to strengthen in sentative of the United States in the coimtry or port
other ways the bonds of friendship between the two whence they depart.
countries; " "It is also agreed that Chinese laborers shall con-
Now, therefoi'e, the President of the United States tinue to enjoy the privilege of transit across the terri-
has appointed Thomas F. Bayard, secretary of state, tory of the United States in the course of their journey
as his plenipotentiary; and the Emperor of China has to or from other countries, subject to such regulations
appointed Chang; Yen Hoon, minister of the third rank by the government of the United States as may be
of the Imperial Court, etc., as his plenipotentiary; and necessary to prevent said privilege of transit from
the said plenipotentiaries have agreed upon the fol- being abused.
lowing articles: Article IV.
Article I,

" The, high contracting parties agree that for a pe- "In between
Treaty pursuancetheof United
Article States
III of and
the China,
Immigration'
signed
riod of twenty years, beginning with the date of the at Pekin on the 17th day of November, 1880, it is
exchange of the ratifications of this convention, the hereby understood and agreed that Chinese, laborers,
coming, except under the conditions hereinafter speci- or Chinese of any other class, either permanently or
fied, of Chinese laborers to the United States shall be temporarily residing in the United States, shall have
absolutely prohibited; and this prohibition shall ex- for tljie protection of their persons and property all
tend to the return of Chinese laborers who are not rights that are given by the laws of the United States
now in the United States, whether holding return cer- to citizens of the most favored nation, excepting the _
tificates under existing laws or not. right to become naturalized citizens. And the govern-
Article II. ment of the United States re-affirms its obligation, as
stated in said Article III, to exert all its, power to
"The preceding article shall not apply to the return secure protection to the persons and property of all
to the United States of any Chinese laborer who has a Chinese subjects in the United States.
lawful wife, child, or parent in the United States, or
property therein of the value of one thousand dollars, Article V.
or debts of like amount due him and pending settle- " Whereas, Chinese subjects, being in remote and
ment. Nevertheless, every such Chinese laborer shall, unsettled regions of the United States, have been the
before leaving the United States, deposit, as a condi- victims of injuries in their persons and property at
tion of his return, with the collector of customs of the the hands of wicked and lawless men, which unex-
district from which he departs, a full description in pected events the Chinese government regrets, and for
writing of his family, or property, or debts, as afore- which it has claimed an indemnity the legal obligation
said, and shall be furnished by said collector with of which the government of the United States denies;
such certificate of his right to return under this treaty and whereas the government of the United States,
as the laws of the United States may now or hereafter humanely, considering these injuries and bearing in
prescribe and not inconsistent with the provisions of mind the flrmi and ancient friendship between the
this treaty; -and should the written description afore- United States and China, which the high contracting
said be proved to be false, the right of return there- parties wish to cement, is desirous of alleviating the
under, or of continued residence after return, shall in exceptional and deplorable sufferings and losses to
each case be forfeited. And such right of return to which the aforesaid Chinese have been subjected;
the "United States shall be exercised within one year therefore, the United States, without reference to the
from the date of leaving the United States ; but such question of liability therefor (which as a legal obliga-
right of ^'eturn to the United States may be extended tion itdenies), agrees to pay on or before the first day
for an additional period, not to exceed one year, in of March, 1889, the sum of two hundred and seventy-
cases where by reason of sickness or other cause of six thousand six hundred and nineteen dollars and
disability beyond his control, such Chinese laborer seventy-five cents (1376,619.75) to the Chinese minister
shall be rendered unable sooner to return — which at this capital, who shall accept the same, on behalf
facts shall be fully reported to the Chinese consul at of his government, as full indemnity for all losses and
the port of departure, and by him.certified, to the sat- injuries sustained by Chinese subjects as aforesaid,
isfaction of the collector of the port at which such and shall distribute the said money among the said
Chinese subject shall land in the United States. And sufferers and their relatives.
no such Chinese laborer shaU be permitted to enter the Article VJ.
United States by land or sea without producing to the
proper offtcer of the customs the return certificate " This convention shall remain in force for a period
herein required. of twenty years, beginning with the date of the ex-
Article HI. change of ratifications; and if, six months before the
" The provisions of this convention shall not affect expiration of the said period of twenty years, neither
the right at present enjoyed by Chinese subjects, being government shall formally have given notice of its
ofiicials, teachers, students, merchants, or travelers for termination to the other, it shall remain in full force
curiosity or pleasure, but not laborers, coming to t^ for a,noLiior ]\',^e period of twenty years."
 179
CHINESE CHOSE

The act of 1888 was framed in supposed conformity else it is "in action,"— where he has only a bare
with the provisions of the supplemental treaty of right, without any occupation or enjoyment. In the
1880.' See Repeal. latter case the possession may be recovered by a suit
General or ambiguous expressions in the act are to or action at law: whence the thing so recoverable is
be construed so as to malce them conform to the called a thing or " chose in action " — as, money due
treaty. . " Chinese laborers " means those who on a bond, or recompense for breach of a contract."
come here with the intention to labor and enter into
The general definition of "chose in action "
competition with the labor of the country.!"
is, a right not reduced into possession. A
"Laborer "is used in its popular sense, and does
note, bond, or other promise not negotiable,
not include any persons but those whose occupation
involves physical toil, and who work for wages, or is denominated a chose in action, before the
with a Tiew of disposing of the product or result of promisor or obligor is liable to an action on
their labor to others.'
it, as well as after. A note for money, pay-
A Mongolian was not entitled to become a citizen
able on time, is a ohose in action as soon as
under the Revised Statutes as amended in 18T5. He is
not a "white person" within the meaning of those made. 2
Words as used in the naturalization laws.* See ex- The term " chose in action" is one of com-
press prohibition, sec. 14, act of July, 1884, ante. prehensive import. It includes the infinite
A. Chinaman who left this country between May 6,
1882, and July 5, 1884, and returned after the latter variety of contracts, covenants, and prom-
date, is entitled to land upon complying with the re- ises which confer on one party the right to
quirements ofthe act of 1882; such provisions of the recover a personal chattel or a sum of money
act of 1884 as relate to evidence of identity not being from another by action. A debt secured by
retroactive.
a bond and mortgage is an example.'
A person who, while abroad, has lost by theft a cer-
In its enlarged sense, a chose in action may
tificate issued under § 4 of the act of 1882, may land on
his return to the port whence he saUed (no one having be considered as any right to damages,
meanwhile presented the certificate) on proving these whetlier arising from the commission of a
facts, and identifying himself as the person to whom tort, the omission of a duty, or the breach of
the certificate was issued.
A district court may, under R. S. § 753, issue a a contract.^
At common law a chose in action was not assign-
Tiabeas corpus where a Chinaman is prevented from
able. To make over a right of going to law was en-
landing by the master of a vessel, by direction of the
couraging, iwas
t thought, litigiousness. But in equity,
customs authorities, under the provisions of the fore-
going acts; there being nothing in those acts, or in the at an early day, an assignment was viewed as a dec-
laration of trust, and an agreement to permit the as-
treaty, making the decision of the customs officers
signee to use the name of the assignor, for purposes
final, or ousting the courts of jurisdiction." of recovery — the transferee being rather an attorney
CHOIiEBA. See Quarantine, 2.
in fact than an assignee.'
CHOOSE. See Elect. Bills of exchange, by the law-merchant, and prom-
CHOSE.6 A thing recoverable by an issory notes, by statute of 3 and 4 Anne (1705), c. 9,
action at law : a thing, personalty. were made exceptions to the common -law rule; and
so were bills of lading, by statute of 18 and 19 Vict.
Chose in action. A thing of which one
(1855), c. 111. By the Judicature Act of 1873 choses are
has the right, but not the possession.' Chose assignable in all cases.
in possession. Personalty in possession, The assignee, except in the case of negotiable in-
in actual enjoyment. struments, although without notice, takes the chose
subject to all equities existing between the debtor and
Property in chattels personal may be either " in
possession," — where a man has not only the right to the The
assignor.'
assignee cannot proceed in equity to enforce,
enjoy, but has the actual enjoyment of, the thing; or
for his own use, the legal right of his assignor, merely
> Be Low Yam Chow, 7 Saw. 548-50 (Sept., 1882). upon the ground that he cannot maintain an action at
'Be Moncan, 8 Saw. 350-56 (Oct., 1882): s. a 14 law in his own name. So held where the owner of let-
F. R. 44. ters-patent assigned them, with claims for damages
s Be Ho King, 8 Saw. 433 (1883). See also 13 F. B.
286, 291; 17 id. 634; 18 id. 28; 19 id. 184, 490; 22 id. 519; 1 2 Bl. Com. 388, 396, 442.
23 id. 329, 441. > Haskell v. Blair, 3 Cush. 535 (1849), Metcalf , J.
<B. S. § 2169; Be Ah Yup, 5 Saw. 155 (1878); 2 8 Sheldon v. Sill, 8 How. 449 (1850), Grier, J. ; 37 Alb.
Kent, 72. Law J. 44-46 (1888), cases.
•United States v. Jimg Ah Lung, 124 U. S. 621 (Feb. * Magee v. Toland, 8 Port. 40 (Ala., 1839). See also
13, 1888), affirming 25 F. B. 141. Opinion by Blatch- 4Ala.351; 72Ga.51; 34 La. An. 608; 5Mas.88; 4Denio,
ford, J. ; Harlan, Field, and Lamar, JJ., dissenting as
to Identification without the certificate; 82; 14 S. C. 538; 43 Wis. 32.
»2 Bl. Com. 443; 4 id. 135; 1 Pars. Contr. 227.
» ShSse. F. from L. causa, action, suit at law. •Hill V. Wanzer, 17 How. 387-68 (1854), cases; 20
' 4 Bl. Com. 13S. i
Blatch. 277.
 CHEISTIAN 180 CHURCH

for mfiingement, and the assignee filed a bill to re- The best features of the common law, especially
cover the damages. In such case the assignee must those which regard the family and social relations, if
bring an action at law, in the name of the assignor, to not derived from, have at least been improved and
his' own use. 1 strengthened by, the prevailing religion and the teach-
See AssiQN, 3; Attach, 3; Champerty; Donatio; ings of its sacred Book. But the law does not attempt
Husband. to enforce the precepts of Christianity on the ground
CHKISTIAN. One who believes or as- of their sacred character or divine origin. Some of
sents to the doctrines of Christianity, as those precepts, though we may admit their continual
and universal obligation, we must nevertheless recog-
taught by Jesus Christ in the New Testament, nize as being incapable of enforcement by human
or who, being born of Christian parents or laws. Those precepts, moreover, affect the heart, and
in a Christian country, does not profess any address themselves to the conscience; while the laws
other reUgion, or does not belong to any one of the state can regard the outward conduct only: for
which reasons Christianity is not a part of the law of
of the other religious divisions of man. 2 See the land in any sense which entitles the courts to take
Name, 1. notice of and base their judgments upon it, except so
Christianity. The system of doctrines far they can find that its precepts and principles have
and precepts taught by Christ ; the religion been incorporated in and made a component part of
founded b)' CJirist. the law of the State."
The maxim can have no reference to the law of the
Chri.<!tianity is said to be part of the common law.
National government, since the sources of that law
" Christianity is parcel of the laws of England; and, are the Constitution, treaties, and acts of Congress.*
therefore, to reproach the Christian religion is to
See further Law, Common; BLASPHEJtY; Holiday;
speak in subversion of the law." ^ Policy, 3; Eeligion; Sunday.
" The essential principles of natural religion " and
CHROMO. SeeCoPTElGHT; Peint.
'' of revealed religion, are a part of the common law,
so that any person reviling or subverting or ridicul- CHIJE.CH. A temple or building con-
ing them may be prosecuted at common law." * secrated to the honor of God and religion ;
" The true sense of the maxim is that the law will or, an assembly of persons, united by the
not permit the essential principles of revealed religion
■ to be ridiculed and reviled." ^ profession of the same Christian faith, met
Christianity is a part of the common law of Penn- together for all religious worship.'
sylvania in the qualified sense that its divine origin Among those whose polity is congrega-
and truth are admitted, and therefore it is not to be ma-
tional or independent, a body of persons as-
liciously and openly reviled and blasphemed against,
to the annoyance of believers or the injury of the sociated together for the purpose of main-
public.^ Not Christianity founded upon any particu- taining Christian worship and ordinances.*
lar religious tenets; but Christianity with liberty of A " religious society " may be a body of persons
conscience to all men.'' associated for worship, omitting the sacraments.*
The maxim does not mean that Christianity is an "Church" and "society" popularly denote the
established religion; nor that its precepts, by force of same thing: a religious body organized to sustain
their own authority, form part of our system of mu- public worship."
nicipal law; nor that the com:ts may base their- judg- A school-house in which religious services are held
ments upon the Bible; nor that religious duties may on Sunday is not a " church." '
be penally enforced; nor that legal discrimination in The right to organize voluntary religious associa-
favor of Christianity is allowed.*^ tions to assist in the expression and dissemination of
any religious doctrine, and to create tribunals for the

IN. Y. Guaranty Co. v. Memphis 'WaterCo.,lO70.S.

214 (1888), cases. See E. S. § 723. State V. Chandler, 2 Harr., Del., 562 (1837); Shover v.
2 [Hale V. Everett, 53 N. H. 50 (1663), Sargent, J. On State, 10 Ark. 2C3 (1850); Bloom v. Eichards, 2 Ohio,
the " Arrest and Trial of Jesus," see 36 Alb. Law J. 3^D (1863); Lindenmuller v. People, 33 Barb. 560-68
334r-88(1887); Greenleaf, Test. Evangelists, &c. (1861); Sparhawk v. Union Passenger Ey. Co., 54 Pa.
= Taylor's Case, 'V^entris, 293 (1676), Hale, C. J. See 432(1867); Hale v. Everett, 63 N. H. 204 (1868); Board
of Education v. Minor, 33 Ohio St. 346-54 (1873); 30 Alb.
Eex V. "Woolston, 2 Strange, 834 (1729); 4 Bl. Com. 59; Law J. 265, 385 (1879).
8 Steph. Hist. Cr. L. Eng. 438.
•Case of Evans, 2 Burn. Eo. L. 185 (1780), Mans- -" Cooley, Const. Lim. 472, cases.
field, C. J. 2 See 'Wheaton o. Peters, 8 Pet. 591 (1834); Pennsyl-
» Lives of Chief Justices, vol. 3, p. 417, Ld. Campbell. vania V.■Wheeling, &c. Bridge Co., 13 How. 519 (1851).
"Vidal V. Girard's Executors, 2 How. 198 (1844), ' Eobertson v. Bullions, 9 Barb. 95 (1860).
Story, J. * [Silsby V. Barlow, 16 Gray, 330 (1860); Anderson V.
'' Updegraph v. Commonwealth, 11 S. & E. 399 (1824). Brock, 3 Me. *847 (1836).
e See 13 Alb. Law J. 366 (1876); 21 Am. Law Eeg. 301, . ' Society v. Hatch, 48 N. H. 396 (1869).
329, 637 (1873); People v. Euggles, 8 Johns. *394 (1811), « State V. Midgett, 85 N. C. 538 (1881). See also 9
Kent, C. J.; Chapman v. Gillett, 2 Conn. 43 (1816); Cranch, 326; 16 Conn. 391; 3 Harr., Del., 257; 88Ind. 131;
Updegraph v. Commonwealth, 11 S. & E. 399-401 (1884); 16 Mass. 498; 3 Paige, Ch. 301; 3 Tex. 888.
 CHURCH 181
CIRCULATION

decision of controverlsd questionrof faith within the CIDER. See Liquor.

association, and for the ecclesiastical government o£
CIRCUIT. A division of country visited
all individual members, congregations, and officers
within the general association, is unquestioned. All by a judge for the dispensing of justice, as
who unite themselves to such a body do so with an im- for tlie trial of causes; also, the periodical
plied assent to this government, and are bound to journey itself.
submit to it. . . Each member is bound by the law The judges ot assize and of nisi prius are twice a
of the society,— the written organic law, books of- year sent around the kingdom to try, by a jury ot the
discipline, collections of precedents, usages and cus- respective counties, the truth ot such matters of tact
toms. The civil courts have only to do with the rights as are then under dispute in the courts at Westminster
of property: they cannot revise an act of discipline, Hall. Formerly, the itinerant justices made their cir-
excommunication, etc., though they may inquire cuits once in seven years; but Magna Charta directed
whether such act was the act of the church or of per- that they be sent into every county once a year. They
sons who did not constitute the church. usually went in the vacations, after Hilary and Trinity
Where property is in dispute, the civil court inquires :
(1) Was the property or fund devoted, by the ex- terms.!
The custom is retained in a few of the States.
press terms of the gift, grant, or sale by which it was Circuit court. See Coukt, Circuit.
acquired, to the support of a speoiflc doctrine or
belief, or was it acquired for the general use of the CIRCUITY. A round-about course : in-
society for religious purposes, with no other limita- direct action, or procedure.
tion? If so, when necessary to protect a trust, the Circuity of action. An indirect or round-
court will inquire into the faith or practice of the about mode of suing: where a party by an
parties claiming the use or control of the property, indirect proceeding makes two or more acr
and see that it is not diverted from the trust.
(2) Is the society of the strictly independent form of tions necessary, when justice could be ob-
government, owing no submission to any organization tained by a single action involving a more
outside of the congregation? If so, the rights of con- direct course.
flicting claimants are determined by the ordinary rules To prevent circuity of action, a court of equity often
which govern voluntary associations — the will of the entertains jurisdiction upon this ground alone; and to
majority, the decision of chosen officers, or otherwise. avoid it, cross-demands and judgments are set off
Those who adhere to the acknowledged organism by against each other.
which the body is governed are entitled to the use of Cirouitus est evitandus. Circuity is to be
the property. No inquiry is made into the opinions of
those who comprise the legal or regular organization. avoided."
(3) Is the society one of a number united to form a
CIRCULAR. 1, adj. Going around or
more general body of churches, with ecclesiastical about, from beginning to end : as, circular
control in the general association over the individual mileage, q. v.
members and societies? The ti'ibunals of such associ- 2. n. In the post-o£Bce laws, a printed letter,
ation decide all questions of faith, discipline, rule,
which, according to internal evidence, is being
custom, or government. When a right of property
depends on one of those questions, and that has been sent in identical terms to several persons.
decided by the highest tribunal within the organiza- The date, names of sender and addressee, and typo-
tion to which it has been carried, the civil courts ac- graphical corrections, maj' be written on such circu-
cept that decision as final. The local society is but a
member of a larger organization, under its control and A circular is a paper intended to be issued to a great
number
lar. * of persons, or for generalcirculation. In the
bound by its judgments.!
Churcli and state. See Religion. form of a letter, may be described in an indictment,
See also Assembly, Civil; Banns; Canon, I^aw; as, a " letter and circular." < See Mail, 2; Post-office.
Christianity; Congregation; Parish, 1; Pew; Sanct- CIRCULATION. Whatever passes from
uary, 1;Schism; Subscribe, 3; Worship. person to person, as, money, currency ; also,
'Watson V. Jones, 13 Wall. 713, TJ2-31 (1871), cases, the fact and the extent of a thing's being
Miller, J. The litigation grew out of dissension, due circulated.
primarily to differences of opinion upon the subject of Certificates of indebtedness issued by a person or a
slavery, among the members of the Third or Walnut corporation are not taxable as "circulation," under
Street Presbyterian Church, of Louisville, Ky. See Rev. St., § 3108, imless calculated or intended to cu-cu-
also Bouldin v. Alexander, 15 id. 131. 140 (1878); Same late or to be used as money.'
■o. Same, 103 U. S. 330 (1880); Hennessey v. Walsh, 55
N. H. 515, 526 (1876); Stack v. O'Hara, 98 Pa. 232 (1881); > 3 HI. Com. S7-58; 4 id. 432, 434; 1 Steph. Hist. Cr.
Graff V. Greer, 88 Ind. 13;-32 (1883), cases; Hadley «. L. Eng. 100.
Mendenhall, 89 id. 136, 158-.56 (1883), cases; Wliitecar v. > 18 Ct. CI. 457; 15 M. & W. 208.
Michenor, 37 N. J. IS. 6 (1883 , cases; State v. Rector, 46 s Act 3 March, 1879: 20 St. L. 330, 1 Sup. R. S. 460.
N. J. L. 230 (1883); 12 Am. Law Reg. 201, 329, 537 (1873), 4 United States v. Noelke. 17 Blatoh. 557 (1880); Com-
■cases; 16 id. 376-82 (1876), cases; Relations of Civil Law merford v. Thompson, 2 Flip. 615 (1880).
to Church Polity, etc. (1875), Hon. William Strong. ' United States v. Wilson, 106 U. S. 630 (1882). See
 183
CIRCUMSTANCES CITIZEN

The act of February 8, 1875, c. 35, sec. 19 (18 St. L.

Poverty is not such " extraordinary circumstance "
311), provides " that every, person, flrm, association as will defeat the rule of diligence in civil procedm:e
other than national banking associations, and every in the Federal courts.'
corporation, State bank, or State banking association, CIRCUS. See Theater.
shall pay a tax of ten per centum on the amount of CITE. To call, command, summon.
their own notes used for circulation and paid out by
them. " This act is tp be construed in connection with
1. To notify a party of a proceeding against
.him. /
the internal revenue law; is designed to provide a cur-
rency for the country, and to restrain the circulation 3. To refer to or quote in support of a
of notes not issued by authority of Congress. An order
proposition ; as, to cite a case or authority.
by A in favor of B, or bearer, upon C for " five dollars Citation. 1. Originally, a process to call
in merchandise at retail," paid out by A and used as
circulation, is not a note within the meaning of the a party before an ecclesiastical court. 2
act. Only such notes as are in law negotiable, so as 3. Official notice to appear and answer in
to carry title in their general circulation from hand to a proceeding.
h^nd, are the subjects of taxation under the act.' In this sense, used in the practice of courts of pro-
A certificate by a national bank that a person
napied has deposited in it a certain sum, payable to the bate, surrogates' and orphans' courts; and in prac-
tice upon writs of error, as, writs from the Supreme
order of himself on return of the certificate properly
indorsed, and understood not to be payable until a day Court.
A notice to the opposite party that a thing
agreed upon, is not forbidden. ' See Bank, 2 (2) ; Tax, 2.
is about to be done, as, that a record is about
CIRCUMSTANCES. 1. Surroundings:
to be transfeiTed to another court, where he
the particulars which accompany an act or
fact ; res gestcB, q. v. may appear, or decline to appear, as his
Reference to ' ' surrounding circumstances ' ' is made judgment or inclination may direct.^
to ascertain the precise nature of a subject-matter or "Citation " and " notice " are not synonymous. A
to explain terms used. citation must be directed to some officer and be served
by him; and, if issued by a court having a seal, must
Circumstantial. Consisting in or per- be under the seal of such court. It must contain the
taining to attendant circumstances or facts ; names of the persons ijpon whom service is to be had,
afforded by what naturally accompanies : as, unless in the case of imknown heirs who are served by
circumstantial evidence, q. v. See Case, 1. publication. A notice is much less formal: it is not
" Circumstance " and " fact " are often inter- necessarily under seal, although issued by a court
changed. Wben a conviction depends upon circum- of record, and it may be served by a person not an
stantial evidence, it often happens that one or more
of the ultimate or essential niatters may appropri- 3. The act of quoting an authority ; also,
ofllcer.'
ately be called a "circumstance," to be established the authority itself. Compare Precedent, 3.
beyond a reasonable doubt. ^ CITIZEN. In the Roman government,
3. A person's qualifications, status or con- seems to have designated a person who had
dition, material, -moral, and perhaps mental. the freedom of the city, and the right to ex-
In a law providing that letters testamentary shall
not be granted, unless a bond be filed, to a person ercise .all political and civil privileges of the
whose "circumstances do not afford adequate secu- government. There was also, at Rome, a
rity "for the due administration of the estate, the ref- partial citizenship, including civil but not
erence is not exclusively to pecuniary responsibility.
political rights. Complete citizenship em-
Thrift, integrity, good repute, and stability of charac-
ter are " circumstances." ' See Peouniabt. braced both. 5
"In failing circumstances," applied to a bank, One who owe^ to government allegiance,
means, in Missouri, a state of uncertainty whether the service, and money by way of taxation, and
bank will be able to sustain itself, depending on favor- to whom the government, in turn, grants and
able or unfavorable contingencies, which in the course
of business may occur, and over which its officers have
guarantees liberty of person and of con-
no control.*
science, the right of acquiring and possessing
property, of marriage and the social relations.
also Philadelphia, &c. E. Co. v. Pollock, 19 F. B. 403
(1884); United States v. White, ib. 723 (1884). 'Whalen v. Sheridan, 10 F. R. 661 (1880); 91 U.S.
^ Hollister v. Zion's Co-operative Institution, 111 U. S. 349; 96 id. 618.
63 (1884): 8 Wall. 533; 96 U. S. 366; Be Aldrioh, 16 F. R. " [3 Bl. Com. lOO.
» [Cohens v. Virgmia, 6 Wheat. 411 (1831), Marshall,
> Hunt, Appellant, 141 Mass. 519 (1886): E. S. § 5183. C.J.
" Clare v. People, 9 Col. 134 (1886), Helm, J. * Perez v. Perez, 59 Tex. 324 (1883).
' Martin v. Duke, 5 Eed£. 599 (1883), Rollins, Sur. « Thoraassen o. State, 15 Ind. 151 (1860), Perkins, J.;
< Dodge V. Mastin, 17 F. E. 665 (1883). White V. Clements, 39 Qa. 359-63 (1869).
 CITIZEN CITIZEN
183

of suit and of defense, and security in per- A person may be a citizen of the United
son, estate, and reputation.' States and of a State, and as such have dif-
A State may deny all her " political rights" to an ferent rights. Citizens are the members of the
individual, and he yet be a citizen. The rights of offloe political community to which they belong.
and suffrage are political purely. A citizen enjoys
"civil rights."'
They are the people who compose the com-
For convenience it has been found necessary to give munity, and who, in their associated capac-
a name to membership in a political community or ity, have established or submitted themselves
nation. The object is to designate by title the person to the dominion of a government for the pro-
and the relation he bears to the nation. For this pui--
motion of their general welfare and the pro-
pose the ivords "subject," "inhabitant," and "citi- tection of their individual as well as of their
zen " have been used, and the choice between them is
sometimes made to depend upon the form of the gov- collective rights.'
ernment. "Citizen" is now more commonly em- By the definition usually given, a citizen is an " in-
ployed, however, and as it has been considered better habitant of a city, town, or place," and so would in-
suited to the description of one living under a repub- clude every person dwelling in the place named; but
lican government, it was adopted by nearly all of the the term is subject to various limitations, depending
States upon their separation from Great Britain, and upon the context It may indicate a permanent resi-
was afterward adopted in the Articles of Confedera- dent, or one who remains for a time or from time to
tion and in the Constitution, tfsed in this sense it is
understood as conveying the idea of membership in a Citizenship implies residence with intention of re-
nation, and nothing more. time.2
maining permanently at the particular place.' See
Whoever was one of the people of either of the Inhabitant; Resident.
States when the Constitution was adopted became The word does not necessarily include the element
ipso facto a citizen — a member of the nation created of descent or inheritance, nor of sex, nor of race, nor
by its adoption. . . Disputes have arisen as to of right to co-operate in government, nor of property.*
whether or not certain persons or classes of persons Citizenship as affected by the Thirteenth,
a to
were part of the people at the time, but never as to Fourteentli, and Fifteenth Amendmenl
their citizenship, if they were. the Constitution:
Additions might be made by birth, and by naturali- The object sought by these Amendments was "the
zation. freedom of the slave (African) race, the security and
The Constitution does not, in words, say who shall firm establishment of that freedom, and the protec-
be natural-bom citizens. To ascertain that, resort tion of the freedman from the oppressions of those
must be had to the common law, with the nomencla
t- who had exercised dominion over him." But the let-
ure of which the framers were familiar. At common ter and spirit of the Amendments "apply to all oases
law, all children bom in «. country of parents who coming within their purview, whether the party con-
were its citizens became themselves, upon their birth, cerned be African or not." '
citizens. These were natives, or natural-born citizens, Amendment XIII. " Neither slavery nor invol-
as distinguished from aliens or foreigners. within Some au- untary servitude, except as a punishment for crime
d,
thorities include as citizens children bora the whereof the party shall have been duly convicte
referenc e to the citizensh ip of shall exist withm the United States, or any place sub-
jurisdiction without
doubts,
their parents. As to this class there have been ject to their jurisdiction." Eatifled December 18. 1865.
but not as to the other class. Amend ment XIV. " Ml persons born or natu-
of
Sex has never t)een made one of the elements ralized inthe United States, and subject to the jurisdic-
citizenship in the United States. The
Fourteenth tion thereof, are citizens of the United States and of
make
Amendment did not affect the citizenship
of women the State wherein they reside. No State shaU
es
any more than that of men: it prohibited
the State or enforce any law which shall abridge the privUeg
nor
from abridging any of her privileges and
immunities or immunities of citizens of the United States;
liberi;y, or
(g r ) as a citizen of the United States, but
it did not shall any State deprive any person of life,
before its deny to any
confer citizenship on her. That she had property , without due process of law ; nor
adoption The right of suffrage was
not co-extensive person within its jurisdic tion the equal protection of
adoptio n of the Amend- the laws." Ratified July 28,1868.
with citizenship before the
ment, nor was it added thereby." Amendment XV. "The right of citizens of the
or abridged
Citizen and "legal voter" are not synony they
mous United States to vote shall not be denied
s, yet
terms. Minors and females may be citizen 1 United States v. Cruiks hank, 93 U. S. 549, 542 (1875),
are not legal voters.' ^
Waite C. J. ; Dred Scott Case, ante.
(1880).
" . Amy V. Smith, 1 Litt. *342 (Ky., 1822), Cal. Mills, J. Ap- . Union Hotel Co. v, Hersee, 79 N. Y. 461
43 51 (1872). 25 Am. Law
oroved. Van Valkenburg v. Brown, MVinn ,;. Gilmer, 27 F. E. 817 (1886)-.
175 (1874), affecting citizen-
» Minor V. Happersett, 21 Wall.' 166-67, 170, 19 How. Re<. 700 (1886); ib. 71M4, cases. As
Chase C J. See also Dred Scott v. Sandford, instructions.
shin 31 Alb. Law J. 465 (1885)-consiUar
423 (1856), Taney, C. J.; 2 Kent, 258; 3 Story, Const. 4 See 16 Alb, Law J. 34, 176 (1877); 25 Am. Law Reg.
404,
§1687; 25 Cent. Mag. 178. (1887), cases; 11
1-14 (1886), oases; 24 Cent. Law J. 540
V. Town of Oldtow n. 88 Ul. 205 (1878) ; United 3"; Abbott , cases.
3 People Ohio,
States V. Anthony, U Blatch. 302 (1873). ' Slaughter-House Cases, post.
 CITIZEN 184 CITY

by the Uiiited States or by any State on account of titled to pursue their happiness and acquire and enjoy
race, color, or previous condition of servitude." Rati- property; that they should have like access to the
fied March 30, 1870.
courts of the country for the protection of their per-
In the case of each Amendment, Congress is given sons and property, the prevention and redress of
express power to enforce the provisions thereof by wrongs, and the enforcement of contracts; that no
appropriate legislation. impediment should be interposed to the pursuits of
The series have a common purpose: to secure to the any one except as applied to the same pursuits by
negro race all the civil rights the white race enjoy; — others under like circumstances; that no greater bur-
to raise the colored race into perfect equality of civil dens should be laid upon one than are laid upon
rights with all others in the State ; — to take away all the others in the same calling and condition, and that
possibility of oppression by law because of race or in the administration of criminal justice no different
color; —to secure equal protection of the laws. or higher punishment should be imposed upon one
They are limitations on the power of the States, and than is prescribed to all for like offenses. . The
enlargement of the powers of Congress. To carry out Amendment does not interfere with the "police
their purpose they are to be construed liberally. power "of the States — a regulation designed not to
The Xlllth Amendment forbids all forms of invol- impose unequal or unnecessary restrictions upon any
untary slavery — African slavery, Mexican peonage, one, but to promote, with as littte individual incon-
Chinese coolie trade. It declares the personal free- venience as possible, the general good. . . Class
dom of all the human race within the jurisdiction of legislation, discriminating against some and favoring
the United States. After the slave had been emanci- others, is prohibited, but legislation which, in carry-
pated, certain States so curtailed his rights that his ing out a public purpose, is limited in its application,
freedom was of little value: in this originated the if within the sphere of its operation it affects alike all
XCVth Amendment. The laws being still administered persons similarly situatfed, is not within the Amend-
by the white man alone, the XVth Amendment was
adopted to make the negro a voter. The ment, i XlVth Amendment forbids an ordinance which,
The XlVth Amendment conferred citizenship on the though expressed in general terras, is directed against
negro, defines citizenship in the United States and in a particular class, as Chinese convicts, by imposing a
the States, and protects the privileges and immunities degrading punishment, like that of cutting off the
of citizens of the United States from hostile legislation
by the States. That is, it not only gave citizenship, An administration of an ordinance for carrying on
but it denies a State power to withhold equal protec- a lawful 2 business (that of a laundry), which makes dis-
tion of the laws, and gives Congress power to enforce queue.
criminations founded upon differences of race be-
its provisions by appropriate legislation, as, by re- tween persons otherwise in similar circumstances,
moval of a cause from a State to a Federal court. Its
violates the XTVth Amendment.^
enforcement is left to the discretion of Congress. In The XVth Amendment merely invests citizens of
an especial sense it makes one law for black and for the United States with the constitutional right of ex-
white. It does not enumerate rights, but speaks in emption from discrimination in the enjoyment of the
general terms. It confers a new constitutional right: elective franchise on account of race, color, or pre-
exemption from discrimination between persons and
vious condition of servitude.'*
classes of persons by action of any State ; it does not No one of the Amendments confers power on Con-
refer to action by a private individual.^ gress to pimish private persons who, acting without
The XlVth Amendment intended not only that there authority of the State, invade rights protected by the
should be no arbitrary deprivation of life or liberty,
or arbitrary spoliation of property, but that equal Amendments.^
See further Conspiracy; Right, 2, CivU Rights;
protection and security should be, given to all under School, Separate; Servitude, 1; Supfrag^e; Vagrant;
like circumstances in the enjoyment of their personal War. See also Alien, 1; Allegiance; Chinese; Cor-
and civil rights; that all persons should be equally en- poration, Private; Denizen; Domtcil; Expatriation;
Naturalize; Person; Privilege,!; State, 3(2); Suf-
1 Slaughter-House Cases, 16 Wall. 36, 70-71 (1873), frage; Territory, 2; White.
Miller, J. Regarded a " servitude " in property.
Strauder v. West Virgmia, 100 U. S. 306, 310 (1879),
CITY.6 1. An incorporated town or
Strong, J. S., a negro, tried for murder, had been de-
borough, which, in England, is or has
nied a removal of the cause into a circuit court. Vir-
ginia V. Rives, ib. 318 (1879),— in which a mixed jury, 1 Barbier v. Connolly, 113 U. S. 31-32 (1885), Field, J.
was denied. See also Pace v. Alabama, 106 id. 584 (1882); Railroad
Exp. Virginia, 100 U. S. 344-48 (1879), Strong, J. That Tax Case (County of San Mateo v. South. Pacific R.
State petitioned for the discharge of one Coles, a Co.), 8 Saw. 251, 302 (1883); Civil Rights Cases, 109 U. S.
county judge, indicted for excluding a colored man 3, 11, 23. 24 (1883); 93 N. Y. 446.
from a jury. Bush v. Kentucky, 107 id. 118-19 (1882), 3 Ah Kow V. Nunan, 6 Saw. 552, 562 (1879).
cases. a Yick Wo v. Hopkins, 118 U. S. 356, 365 (1886).
Missouri v. Lewis, 101 U. S. 30-31 (1879), Bradley, J. 4 United States v. Cruikshank, 93 U. S. 542 (1875);
Regarded a regulation of jurisdiction. United States v. Harris, 106 id. 637 (1882).
Neal V. Delaware, 103 U. S. 385-36 (1880), Harlan, J. ; 8 Le Grand v. United States, 12 F. R. 577, 583-85
United States v. Woods, 106 id. 637-44 (1883), Woods, J. ; (1882).
United States v. Reese, 93 id. 214, 218 (1875), Waite, C. J. 0 L. civitas, citizens in a community: ca'm'a, a citizen.
 CIVIL 185
CLAIM

been the see of a bishop, i An incorporated same state or nation, and opposed io foreign:
town.2 as, a civil — commotion, rebellion, war, q. v.
The word "city" may include a town,' q. v. 3. Accorded by just and equal laws; as
2. A municipal corporation of the larger opposed to political or that which is actually
class, with powers of government confided or practically enjoyed under law : as, again,
in officers who are usually elected by popular
■vote. civil — rights or liberty, qq. v.
4. Existing in contemplation of law; attrib-
A political division of a State, for the con- utable under municipal law ; and contrasted
venient administration of the government.* with natural: as, civil — life, death, disabil-
An instrumentality, with powers more or less en-
larged, according to the requirements of the public, ity, qq. v.
and which may be increased or repealed at the wU] 5. Concerning the rights of and wrongs to
of the legislature.* individuals considered as private persons, in
In a few States cities are of the first class, of the contradistinction to criminal or that which
second class, etc., according to population.* concerns the whole political society, the com-
Under a constitutional power to organize cities
and villages, the legislature is authorized to classify munity, state, government : as, civil — action,
municipal corporations, and an act relating to any case, cause, code, court, damage, injury,
such class may be one of a general nature." jurisdiction, law, obligation or responsibility,
City purpose. Any public improvement proceeding, procedure, process, remedy, re-
for the common benefit and enjoyment of port, side, qq. v.
all the citizens.' 6. Pertaining to the administration of gov-
Each case must depend largely upon its own facts.' ernment, and contrasted with military and
City vouchers are n on -negotiable. See under ecclesiastical: as, civil — office, officer, ten-
Negotiate, 2.
See generally Charter, 2 ; Corporation, Municipal ; ure, qq. V.
Council, 2; Fire, Department; Health, Board of; " Civil " is used, in contradistinction to " barbarous "
Officer; Ordinance, 1; Park, 3; Police, 8; Recorder, or " savage," to indicate a state of society reduced to
2; Sewer; Sidewalk; Street: Telegraph. order and regular government; to "criminal," to indi-
CIVIL. Pertaining to the citizen (Lat. cate the private rights and remedies of men as mem-
bers of the community, in contrast to those which are
civis) — the free inhabitant of an independ- pubhc, and relate to the government; to "military"
ent city, in distinction from the government, and "ecclesiastical;" to "natural " or "foreign." In
the soldier, the peasant, the ecclesiastic, and the Constitution, seems to be contradistinguished from
'* military," to indicate the rights and duties relating ■
persons of other classes.' to citizens generally, as distinct from those of persons
1. Contrasted with barbarous or savage,
engaged in the land and naval service of the govern-
natural or uncivilized, denotes a state of
society reduced to order and regular govern- Civiliter
ment. ^ mortuus. Civilly dead. See
ment : as in speaking of civil — liberty, gov- Civil, 4.
ernment, rights, society, qq. v. CLAIM.2 A challenge by a man of the
2. Originating or existing among, pertain- propriety [property] or ownership of a thing
ing to, or affecting, fellow-citizens of the which he has not in possession, but which is
wrongfully detained from him.'
> 1 Bl. Com. 114. In a juridical sense, a demand of some
' Van Blper v. Parsons, 40 N. J. L. 4 (18IS). matter as of right made by one person upon
s Peoples. Stephens, 62 Cal. 236 (1882): Gal. Const,, another, to do or to forbear to do some act or
Art. X, sec. 19.
4 New Orleans v. Clark, 05 U. S. 654 (1877), Field, J. thing as a limited
A more matter butof equally
duty.'' explicit definition is
'SeeKilgore r. Magee, 85 Pa. 411 (1877); 77 id. 346;
88 id. 268; 96 id. 422; 108 id. 377; 15 W. N. C. 209; 32 by Lord Dyer in Stowel's Case.*< '
givenassertion,
thatThe
Kan. 431; 82 Mo. 388. demand, or challenge of
' State ex rel. Attorney-General v. Hudson, 44 Ohio something as a right, or the thing thus de-
St. 139 (1886), cases; Heck v. State, ib. 539 (1886).
' People V. Kelly, 76 N. Y. 487 (1879). manded or challenged.*
8 A "civil " man once was one who fulfilled all the
duties flowing from his position as a civia, and his re- 1 [1 Story, Const. § 791.
lations to the other members of the civitaa to which » L. clamare, to call out, demand.
in s Stowel V. Zouoh, 1 Plow. 359 (1568), Lord Dyer.
he belonged, and " civility " was the condition
which those duties were recognized and observed. * Prigg V. Pennsylvania, 16 Pet. 615 (1842), Story, J.
Trench, Glossary, &c., 36. 'Fordycet). Godman, 20 Ohio St. 14 (1874), Scott, J.
 CLAIM 186 CLAIM

The subject-matter of a claim is the facts or cir- Claim of title. See Color, 3. Of title.
cumstances out of which the claim arises or by reason Claimant. 1. One who demands a thing
of which the supposed right accrues.'
as a matter of right.
Something asked for or demanded on the
one hand and not admitted or allowed on the
3. One who has filed a claim as the law re-
other. ^
When the demand is admitted it is not a mere claim, 3. In I admiralty, a person admitted to de-
quires.
but a debt. It no longer rests in mere clamor or peti- fend alibel in rem, q. v.
tion, but is something done upon whicli an action may- A bona fide claimant to land is one who supposes
be maintained. Thus, "a claim upon the United that he has a good title and knows of no adverse'
States " (E. S. § 3477) is something in the nature of a de- claim.'' See Faith, Good. '
mand for damages arising" out of some alleged act or Under preemption laws " claim " and " claimant "
omission of the government, but not yet provided for are frequently used in connection with the right to
or acknowledged by law.^ acquire title to a part of the public lands upon com-
Every account upon which any siun of money or pliance with the laws.'
other thing is or is claimed to be due to the person Counter-claim. A cross-demand, exist-
presenting it is a claim or demand; but every claim , ing in favor of a defendant. Includes ife-
or demand is not an " account." The,terms, however,
may be used synonyniously.s Goupment and set-off.
" Counter " means contrary to, contrary way, oppo-
May refer to such deb't or demand against a de- sition; and "claim," the demand of anything that is
cedent as might have been enforced against him in his
in the possession of another, the right to demand of
life-time by personal action for the recovery of money,
and upon which only a money judgment could have another.*
been rendered.* The term of itself imports a claim opposed to, or
Claims against an estate are those in existence at which qualifies, or at least in some degree affects, the
the death of the deceased. Other claims are properly plaintiff's cause of action or the right to the relief to
which he would otherwise be entitled by his action.
denominated "expenses of administration."'' See
Demand, 1. " Consists of a set-off or claim by way of recoupment,
or is in some way connected with the action stated in
Referring to public lands, relates to a settler's right
or improvement on land the fee of which is in the the complaint." °
government.* Is -broader than "set-off;" includes not only de-
Within the meaning of Rev. St., § 3438, providing mands the subject of set-off and recoupment, but
for the punishment of any person who prefers a claim equitable demands. "^
Under the laws of many States, if the claim and
(pension) against the Government, knowing the same
coimter-claim are both established, the latter reduces
to be false, " claim " is not used in the sense of a de- the former; but if the counter-claim alone is estab-
mand theretofore presented, but of a demand then
lished, judgment is recovered tor the amount of it.
existing, and known to be wrongful. The act of pre-
See further Set-off.
senting itin the fii'st instance is denounced as a crime. '
Under that section one is guilty who presents a Non-claim. Omission or neglect to make
claim which he believes to be just, but seeks to sub- a demand ; failure to assert a claim within
stantiate by the affidavit of a person who, to his the time limited by law.
knowledge, certifies to a fact of which the affiant "An infant shall lose nothing by non-claim, or neg-
knows nothing.^
lect to demand his x'ight." '
Adverse claim. See Possession, Ad- A statute of non-claim has all the characteristics of
verse. a statute of limitations.^
See Affidavit, Of claim; Courts, United States;
Claim and delivery; claim-bond. See Disclaimer; Interplead; Quitclaim; Reclaim; Stale.
Replevin, 1.

' Fordyce v. Godman, ante. ' [Adams V. WoitUI, 46 Ga. 295 (187-').
2 Dowell V. Cardwell, 4 Saw. 238 (1877), Deady, J. 'Morrison v. Robinson, 31 Pa. 459(18-8): 1 Wash. 79.
' Stringham v. Supervisors, 24 Wis. 600 (1869), Dixon, See also 13 F. R. 152, ■
C. J.; 43 id. 644; 66 id. 170, 245; 40 Ala. 147. = United States v. Spaulding, 3 Dak. 92-93 (1882).
1 Fallon V. Butler, 21 Cal. 33 (1862), Field, C. J.; * [Great Western Ins. Co. v. Pierce, 1 Wyom. 49-60
(1872). Fisher, C. J.
MoCausland's Estate, 52 id. 577 (1878); 9 id. 616; 38 id.
23. 88; 46 id. ICO; 9 Greg. 391; 2 N. Y. 254; 43 id. 413. i Dietrich v. Koch, 35 Wis. 626 (1874), Lyon, J.: 24.
'Dodsonu Nevitt, 6 Mouta. 530 (1885); McLaughlin How. 40Pr.
V. Winner, 63 Wis. 128 (1885). 549; 329,78;33i; 23 Barb. 143; 21 N. Y. 191, 19o'; 63 id.
Ark. 7 Ind. 533; 3 Pars. Contr. 741; Roberts
' Bowman v. Torr, 3 Iowa, 574 (1856); United States V. Donovan, 70 Cal. 113 (1886), cases. In actions ex
V. Wilcox, 4 Blatch. 388-89 (1859). delicto, see 20 Cent. Law J. 363-65 (1886), cases.
' United States v. Rhodes, 30 F. R. 433 (1887), = Roberts v. Donovan, 70 Cal. n.3 (1886), cases; Cal.
Brewer, J. Code Civ. Proc, §438.
' 1 Bl. Com. 405.
« United States v. Jones, 33 F. E. 483 (1887), Simon-
ton, J. 8 Williamson v. MoCrary, 33 Ark. 470 (1878).
 187
CLANDESTINE CLERK

CLANDESTINE. See Convbyancb, 3, CLEARANCE. A certificate from the

Fraudulent; Distress; Fraud. collector of customs at a port that a vessel
CLASS. Persons or things ranked to- has complied with the customs and health
gether for like action, for similar or uniform laws, and has permission to sail.i
treatment, as possessing a common attribute, CLEARING-HOUSE. The object of a
or as being in the same category. clearing-house association is to effect at one
Used of legatees, obligees, and other persons;' of time and place the daily exchanges between
cities;' of legislation. = See City, 8; Enuueratiok; the banks which are members of the associa-
Leoacy.
CLAUSE. A separate portion : a part of tion, and the payment of the balances result-
a written instrument. ing frota such exchanges. 2
Sending a note through the clearing-house is not a
One of the subdivisions of a written or formal demand for immediate payment made during
printed document.* business hours, but it is equivalent to leaving the note
Clauses take their names from the nature o£ the at the bank for collection from the maker on or be-
provision intended to be made by them. Of the more fore the close of banking hours.' See Loan, Certifi-
common are: clause of jurisdiction — in a bill in cate.
equity; clause of accruer; commerce, dictionary, en- CLEARLY. See Clear, 3, Clearly.
acting, guaranty, penal, residuai-y, and sweeping CLERG-Y. Persons in holy orders ; eccle-
clause, qq. v.
siastics, as a class ; also, benefit of clergy.
CLATJSinyn. L. a close; an inclosure.
Clergyab le. Admitting or entitled to the
Quare dausum fregit (pi. fregerunt). benefit of clergy.
Wherefore he broke the close. The em-
Benefit of clergy. Exemption from
phatic words in the old Latin writ command-
capital punishment, anciently allowed to
ing a defendant to show cause why he made churchmen, and, later, to laymen.
an alleged unlawful entry upon plaintiff's Originated in the regard princes had for the church,
land.
and the ill use made of that regard. In time, extended
Abridged to trespass quare dausum, gu. to the laity, and made to include all felonies. - The
d. fr., and g. c. /. See Close, 3; Trespass. claimant "prayed his clergy." If he could read a
CLEAN. See Hand, 4 ; Lading, Bill of. psalm correctly (usually, the fifty-first), he obtained a
trial before twelve " clerks," q. v. They heardhim on
CLEAB. 1, V. To clear out a highway is
oath, with his witnesses and compurgators, who at
to clear it out for all the purposes to which it
tested their belief in his innocence.'
is dedicated.5 Abolished in England by 7 and 8 Geo. IV (1827), c. 28;
" Clearing land," in the absence of words of limita- and in Federal practice by act of April 30, 1790. Was
tion, means removing therefrom all the timber of part of the common law of the older States.*
every size, except taking out the stumps." Clergyman. See Communication, Priv-
2, adj. Free from, as, from taxes: said of ileged, 1.
CLERK. 1. A member of the clergy.
an annuity.''
Clear yearly value: free from all out-go. = The clergy, as they engrossed almost every Other
Clearly. " Clearly established by satis- branch of learning, were remarkable for their study
of the law. The judges were usually created out of
factory proof" is- equivalent to established sup-
» the sacred order, and all the mf erior ofdcers were
by proof beyond reasonable doubt.
To require insanity, as a defense in homicide, to
be plied by the lower clergy, which occasioned theh' suc-
erates " cessors tobe denominated " clerks." »
proved by evidence which " clearly prepond aU 2. A person employed to keep records; as,
is practically saying that it must be proved beyond
doubt or uncertainty.'" a clerk of a court.
Clerk of courts. The chief clerk of the
1 16 Pick. 132; 17 Wend. 52. courts of quarter sessions and oyer and
= 85 Pa. 401; 106 id. 377; 32 Kan. 431; 82 Mo. 388; 44 terminer. (Penn.) See Prothonotary
; Min-
Ohio St. 139, 639.
a 109 U. S. 24. utes, 1.

4 Eschbach v. Collins, 61 Md. 499 (1883).

s Winter v, Peterson, 24 N. J. L. .528 (1854). ' See E. S. §§ 1197, 4200, 4207.
North
•Seavey v. Shurick, 110 Ind. 496 (1686): Harper
v. 2 Nat. Exchange Bank v. Nat. Bank of
Pound, 10 id. 35 (1857). America, 132 Mass. 148 (1882).
a 4 Bl. Cora. 356.
' Hodgeworth v. Crawley, 2 Atkyns, 393 (1793).
Cr.
STyrconnel v. Ancaster, 2Ves. Sr. 504 (1754). 4 See R. S. § 5329; 1 Bish. Cr. L. § 936; 1 Chitty,
» Peoples. Hamilton, 62 Cal. 335 (1882). Steph.17.Hist. Cr. L. Eng. 469-72.
Bl. 1Com.
L. '1667;
" Coyle V. Commonwealth, lOO Pa. 580, 577
 CLIENT CLOUD

Clerical error. See Eeroe, 3 (1); Rec- ually, so that drinking and the conveniences
ord, 3,Judicial.
of drinking shall be no longer accessible, i
3. A person employed to keep minutes, ac- A saloon is not "closed," withii the meaning of a
counts, and the like. l£Lw requiring such places to be closed at certain
times, as long as it is possil)le for persons desiring
A person, employed in an office, public or
liquor to get in peaceably, whether by an outside en-
private, for keeping records, whose business trance or any other, or as long as a customer, who Is
is to write or register in proper form the inside at the time for closing, remains inside. And it
transactions of the tribunal or body to which is not important that there is no one attending bar, if
the liquor is accessible, nor is it important that no
be belongs.!
An employee who attends to sales no further than liquor is sold.'
delivering goods manufaiptm-ed, and keeping a memo- 2, adj. Not proper for public inspection.;
randum of the delivery for a temporary purpose, is hence, sealed on the outside : as, a close writ
not a " clerk " within the meaning of the rule which or roll ; opposed to patent in letters-patent.
requires proof of the original entries.'' See Agent; See Patent, 1 (1).
Servant, 8; Entky; II, 1.
Not admitting corporators generally to
CLIENT.s One who employs a lawyer
vote for officers : as, a close corporation, q. v.
professionally.
Clientage. The patronage of clients ; pro- 3, n. An'interest in the soil.'
Taking sheaves from another's close is equivalent
fessional patronage.
to a taking from his land."
A client is one who applies to an advocate A portion of land, as, a field inclosed by a
for counsel and defense ; one who retains an
hedge, fence, or other sensible inclosure.* '
attorney, is responsible to him for his fees, Every imwarrantable entry on another's soil the
and to whom the attorney is responsible for law entitles a trespass by "breaking his close: " the'
words of the writ of trespass commanding the defend-
the management of the suit.*
Sergeants and barristers raay taKe upon them the ant to show cause quare clausum quei-entis /regit.
protection of suitors, plaintiffs and defendantsr who For every man's land is, in law, inclosed' and set
apart from his neighbor's land.^ See Clatjsum; En-
are therefore called their "clients," like the depend- closure; Inclose.
ents upon the Roman orators.^
CLOTHE. See Vest.
Among the Romans, the '"patron" was the legal
adviser of the client, maintained and defended him in CLOTHniG. See Apparel; Exemp-
tion.
his lawsuits — cared for his interests, both public and
private. The *' client " contributed toward the mar- CLOUD. "Cloud," and the fuller and
riage portion of the patrbn^s daughter, to his ransom,
to the costs and penalties of lost lawsuits, to the ex- more frequent expression " cloud upon the
pense of any public office held by the patron. Neither title," import that there is in existence
could 'accuse, testify or vote against the other. The something which shows a prima facie right
relation resembled kinship. It was the glory of illus- in a person to an interest in realty in the pos-
trious families to have many clients.^ See Attorney; session of another.
Communication, Privileged, 1. " A cloud exists upon a title where an instru-
CIjOS!Ei. As a verb and an adjective,
ment is outstanding which is void, or au un-
preserves its vernacular senses, except in the
founded claim is set up which complainant
compound "foreclose," q. v.; as a noun, has has reason to fear may at some time be used
the technical meaning noted below.
1, V. (1) To end, terminate, complete : as, to injuriously to his rights.6 '
Questions as to what constitutes a cloud upon a
close a bargain or negotiation.' title and what character of title the complainant must
(3) In a statute providing that places where
intoxicating liquors are sold shall be ' ' closed 1 Kurtz V. People, 33 Mich. 382 (1876) ; People v. Cum-
merford, 68 id. 331 (18&5); 49 id. 337: 62 id. 566. See
on Sundays," the meaning is that sales shall
also 59 Ala. 64; 47 Conn. 276; 65 Ga. 568; 57 111. 370; 68
be entirely stopped, the traffic shut off effeot- id. 420.
1 People V. Fire Commissioners, 78 N. Y. 443 (1878), 2 People V. Cummerford, 58 Mich. 338 (1888), cases,
Allen, J. See also Boss v. Heatheook, S7Wis. 96 (,1888). Morse, C. J.
2 Sickles V. Mather, 20 Wend. 72, 74 (1888). ' Richardson v. Brewer, 81 Ind. 108 (1881).
^ F. client, a suitor: L. cliens, one who hears, listens * Lochlin v. easier, 52 How. Pr. 45 (1875).
to advice. « 3 Bl. Com. 209.
' McFarland v. Crary, 6 Wend. 813 (1830). "Chlpman u. City of Hartford, 21 Conn. 495 (1852);
«3B1. Com. 28; 3 id. 64. "Ward V. Chamberlain, 2 Black, 444-16 (1862), cases-
Waterbury Savings Bank v. Lawler, 46 Conn. 245
, ' See 2 Bl. Com. 31 ; Wharton's Law Diet.
' See 18 Barb. 60; 43 Sup. Ct., N. Y., 454. (1878); Teal v. Collins, 9 Greg. 93 (1881).
 CLUB LAW 189 COCK-FIGHTING

have, to secure relief in equity, are decided upon A club of persons may own intoxicating liquors,
principles long established. Prominent among them and employ one member as steward to deliver drinks
are: that the title of the complainant must be clear; to other members upon the presentation of checks
that the pretended title, which is alleged to be a cloud which are sold by the steward, the money received
upon it, must not only be clearly invalid or inequitable, being used to buy other liquors as the properly of the
but must be such as may, in the present or at a future club, without violating a law forbidding the keeping
time, embarrass the real owner in controverting it.' of intoxicating liquors with intent to sell them.'
Independently of statutes, the object of a bill to re- By-laws, which vest in a majority the power of ex-
move a cloud upon a title, and to quiet the possession, pulsion for a minor offense, are, so far, void. The
is to protect the owner of the legal title from being power of disfranchisement which destroys the mem-
disturbed in his possession or harassed by suits in re- ber's franchise must be conferred by statute; it is
gard to that title; and the bill cannot be maintained never sustained as an incidental power except on con-
without clear proof of both possession and legal title viction for an infamous offense, or for the commission
in the plaintiff." of an act against the society which tends to its injury."
See Association.
The remedyis to cancel the instrument; " or to an-
nul or modify the proceeding or record which creates CO. 1. An abbreviation of company and
the cloud. Where the illegality of an agreement, of county. See Company, 1.
deed, or other instrument, appears upon the face of
it, so that its nullity cam admit of no doubt, a court of 3. The Latin con (q. v.) used as a prefix,
equity will not direct it to be canceled or delivered up. and meaning: with, together with, joined
There can be no danger that lapse of time may de- with — and, hence, companion, fellow, asso-
prive the party of his full means of defense. Such a ciate :as in co-administrator, co-conspirator,
paper cannot, in strictness, be said to create a cloud,
nor be a means of vexatious litigation, or of serious co-defendant, co-executor, co-heir, co-obligor,
injury.* co-partner, co-plaintiff, co-salvor, co-surety,
A bill in equity lies to remove a cloud upon the co-tenant, co-trespasser — in which the per-
title to realty where there is not a plain, adequate, and son spoken of possesses the characteristics of
complete remedy at law.* another person whose office or relation is
The jurisdiction of a court of equity is an independ-
ent source or head of jiuisdiction, not requiring any more particularly mentioned. See each of
those simple words; also Joint.
accompaniment of fraud, accident, mistake, trust, ac-
count, or any other basis of equitable intervention.' COACH. A kind of carriage, distin-
The decree, unless otherwise expressly provided by guished from other vehicles chiefly as being
statute, is not a judgment in rem, establishing a title
a covered box, hung on leathers, with four
in land, but operates in personam only, by restraining wheels. 3 See Railkoad ; Wagon.
the defendant from asserting his claim, and directing
him to deliver up his deed to be canceled, or to exe- COAIj. See Acqua, Currit, etc. ; Min-
cute a release to the plaintiff.' eral; Waste, 3.
See Quiet. Compare Coloe, 2, Of title. G TRADE. By act of Con-
COASTIN
CLUB IiA-W. The use of force or violence
or alleged. fess of Februai-y 18, 1793, commercial in-
for the redress of wrong, actual
for the tercourse carried on between different dis-
CLUBS. Associati ons of persons
tricts in different States, between different
promotion of a common purpose.
districts in the same State, and between dif-
In this sense " club " has no very definite meaning,
aubs are formed for all sorts of purposes, and there ferent places in the same district, on the sea-
is no uniformity in their constitutions and rules.* coast or on a navigable river.*
The reference is to vessels engaged in the domestic
United States, as
I Phelps V. Harris, 101 U. S. 374-75 (1879), cases; GU- trade, plying between ports in the
man v. Van Brunt, 29 Minn. 272 (1882), cases. distmguished from vessels engaged in the foreign
' Frost V. Spitley, 121 U. S. 556 (1887), cases. Gray, J. ; trade or plying between a port of the United States
Harland v. Bankers' & Merchants' Tel. Co., 33 F. K. and a port in a foreign country."
308 (1887). See Heirloom.
COAT OF ARMS.
» Fox V. Blossom, 17 Blatch. 356 (1879), oases. Game, 3. FIGHTING. 'See Cruelty. 3;
« 1 Story, Eq. § 700a. COCK-
» Eussell V. Barstow, 144 Mass. 130 (1887). Where the
a 1 Commonwealth v. Pomphert, ante.
alleged owner is in possession he cannot maintain
writ of entry without abandoni ng the possession . 2 Evans u. Philadelphia Club, 50 Pa. 107 (1865). See
•Dull's Appeal, 113 Pa. 510, 515-18 (1886), cases. See generally 5 Alb. Law J. 226 (1872), cases; Dawkms v.
also HoUand v. ChaUen, 110 U. S. 24 (1884); Pomeroy, Antrobus, 37 Eng. E. 237 (1881); Loubat v. Le Roy, 40
Eq. J. 1 1398. Hun, 546 (1886), cases.
' Harte v. Sansom, 110 U. S. 155 (1884), cases. » Turnpike Co. v. NeU, 9 Ohio, 12 (1839).
8 Commonwealth v. Pomphert, 137 Mass. 507, 564 • Steamboat Co. v. Livingston, 3 Cow. 747 (1825).
(1884). See 59 Ala. 34; 79 ni. 85; 48 Ind. 21; 32
Iowa, » [San Francisco v. Navigation Co., 10 Cal. 507 (1858),
405; 55 Md. 566; 8 Q. B. D. 373. cases.
 CODE 190 COEECION

CODE.i A reduction and revision of the Connecticut; and a civil code in Virginia, taking effect
January 1, 1888.
law and procedure of a political communitj',
upon one or more general subjects, and the A large portion of the modern codes is but declara-
tory of the common law as expounded by the courts.'
enactment of this new, systematized state- A code is a general collection or compilation of
ment as one statute.
laws by public authority; a collection and compila-
An enactment of a more or less complete tion of general statutes. . The rule is, that when a
system of law, or of procedure, or of both statute is revised, or when one statute is framed from
law and procedure, upon one or more general another, some parts being omitted, the parts so omit-
ted are annulled. It must be presumed that the leg-
subjects. islature has declared its entire will.^ See Revise.
Codifleation. The act or process of re- CODICIL.3 A supplement to a will, or
ducing all the law upon one or more general an addition made by the testator, annexed to,
subjects to a code. and to be taken as part of, a testament : being
The reduction of the existing law to an for its explanation, or alteration, or to make
orderly written system, freed from the need- some addition to, or else some subtraction
less technicalities, obscurities, and other from, the former disposition of the testator.*
defects which the experience of its adminis- A clause added to a will after its execution ;
tration has disclosed.2 the purpose of which usually is to alter, en-
Codify. To reduce to the form of a code. large, or restrain the provisions of the will,
Uncodified: not reduced to a code. or to explain, confirm, and republish it.'
Codifler. One who makes or assists in Part of the will, to be construed with it, as one en-
making a code. tire instrument. . . But the will is not altered by
the codicil, except by express words or necessary im-
" A code ought to be based upon the principle that plication. Itis to be deemed altered by necessary
it aims at nothing more than the reduction to a defi-
nite and systematic shape of the results obtained and implication where a subsequent provision is inconsist-
ent with and repugnant to a prior provision. But
sanctioned by the experience of many centuries.^
The codes of New York have been the most cele- where they can stand together, both shall have effect. ^
brated and influential in this country. In that State The effect of republication of the will by the addi-
the work of codification began under the constitution tion of a codicil is to bring both instruments to the
of 1846. Commissioners reported as complete the same date.' See Will, 2.
codes of Civil and Criminal Procedure in 1850, the Po- COERCION. Compulsion : constraint ;
litical 'Code in 1859, the Penal Code in 1864, and the
duress.
Civil Code in 1865. Each of these has since been
revised. The code of Civil Procedure, with some Direct or positive coercion. "When a
changes, has been adopted in Arizona, Arkansas, Cali- person by physical force is compelled to do
fornia, Colorado, Connecticut, Dakota, Idaho. Indiana, an act against his will.
Iowa, Kansas, Kentucky, Minnesota, Mississippi, Mis- Implied or legal coercion. When a
souri, Montana, Nebraska, Nevada, North Carolina, person, under legal subjection to another, is
Ohio, Oregon, South Carolina, Utah, Washington, Wis- induced to do an act involuntarily.
consin, and Wyoming; and the code of Criminal Pro- As free will is necessary to accountability, a person
cedure, in Arizona, Arkans£ts, California, Dakota,
acting under coercion has no will. But the command
Idaho, Indiana, Iowa, Kansas, Kentucky, Minnesota, of a superior to an inferior, of a parent to a child, of
Montana, Nebraska, Nevada, Oregon, Utah, Washing-
ton, Wisconsin, and Wyoming. California and Dakota
have also adopted the substance of tjie other three ' Cincinnati v. Morgan, 3 Wall. S93 (1865).
codes. Other States have partial revisions or consoli- = Mobile. &o. E. Co. v. Weimer, 49 Miss. 739 (1874).
dations sometimes called " codes." The New York See also Sedgw. Stat. 429. See generally 3 South. Law
codes are said to have also had an influence in fram- Eev., o. s., 222 (1874); 2 id., h. s., 215 (1876); 3 id. 573
ing the system adopted in England by the Judieatm-e (1877); 6 id. 1 (1880); 19 Am. Law Rev. 14-17(1884); 20
Act of 1873.« id. M7, 316-38 (1886); 21 id. 194-300 (1887); 2 Law Q.
In 1883 a codification of civil and criminal statutes Rev. 125 (1886); 33 Alb. Law J. 244-47, 264, 321 (1887); 36
was adopted in Alabama; a code of civil procedure in id. 324 (1887); 37 id. 231-23 (1888); 26 Cent. Law J. 257
(1888); 22 Am. Law Rev. 1-29, 57-65 (1888); 4 Kans. Law
J. 258 (1886) — Law Counselor.
1 F. code; L. codex^ a tablet, a. book. Codify, codi- 3 L. codicillus, a title book or writing.
fler, and codification are pronounced cod' — . 4 3 Bl. Com. 500. See 4 Kent, 631 .
2 3 Stephen, Hist. Cr. L. Eng. 351. 6 Lamb v. Lamb, 11 Pick. 375 (1831), Shaw, C. J. See
' Mr. Justice Stephen. Dunham v. Averill, 45 Conn. 79 (1877); Grimball v.
■■See 19 Alb. Law J. 193 (1879)— David Dudley Field; Patton, 70 Ala. 631 (1881) ; Fairfax v. Brown, 60 Md. 58
1 Kent, 475, note; Edinb. Eev., Oct., 1869; Abbott, Bou- (1882).
vier,Law Diets. • Hatcher «. Hatcher. 80 Va. 173 (1885).
 191
COGNATI
COIN

a m^ter to a servant, or of a principal to his agent,

To live together in the same house as mar-
dofes not. ordinarily, amount to coercion.
ried persons live together, or in the manner
If a wife acts in company with her husband in the
commission of a tort or a crime other than treason, of husband and wife.i
homicide, or other heinous felony, it is presumed, at 2. In a popular sense, sometimes found in
coinmon law, that she acted under coercion and with- statutes and decisions, includes the idea of
oui; guilty intent. But non-coercion maybe proved.'
See Duress; Will, 3. occupying the same bed, and sexual inter-
COGNATI. See Natus, Cognati. course. ^
Cohabitation. As a fact presumptive of mar-
■ COGNIZANCE.2 i. Recognition; ac- riage, not a sojourn, nor a habit of visiting, nor even a
knoTvledgment. remaining with for a time. . . Neither cohabitation
When a defendant in replevin justifies a distress of nor reputation of marriage, nor both, is marriage.
goods in another's right as his bailift or servant, he is Conjoined, they are evidence from which a presump-
said to make cognizance; that is, he acknowledges the tion of marriage arises. The legal idea of cohabita-
taking, but insists that it was legal.= Compare tion is that which carries with it a natural belief that
Avowbt; Recognizance. it results from marriage only. To cohabit is to live or
2. Judicial recognition ; judicial power ; dwell together, to have the same habitation; so that
where one lives and dwells there the other always lives
jurisdiction.
A word of the largest import, embracing all power, and dwells. The Scotch expression, " the habit and
repute " of marriage, conveys the true idea better,
authority, and jurisdiction: as in the provision that a
particular court shall have full cognizance of capital perhaps, than our own. When we see a man and a
woman constantly dwelling together, we obtam the
crimes.* first idea in the presumption of marriage; and when
COGrNOVrr. L. Hb has confessed or
we add to this that the parties thus constantly living
acknowledged it. together are reputed to be man and wife, and so taken
Cognovit actionem. He has confessed and received by all who know them both, we take the
the action. Sometimes called a cognovit. second step in the presumption of the fact of a mar-
riage. Marriage is the cause, these follow as the
An acknowledgment by a defendant that An inconstant habitation and a divided
effect. .
an action brought against him is rightly
reputation of marriage carry with them no full belief
brought, and that the sum named is due to of an antecedent marriage as the cause. Irregularity
in these elements of evidence is at once a reason to
theAnplai ntiff.''
unsealed confession of judgment given to the think that there is irregularity in the life itself which
plaintiff after suit is brought. A warrant of attorney the parties lead: unless attended by independent facts,
which aid in the proof of marriage. Without con-
is imder seal and given before suit is entered." See
Attorney, Warrant of. comitant facts to prove marriage, such an irregular
cohabitation and partial reputation of marriage avail
COHABIT." 1. The primary meaning
is to dwell with some one, not merely to visit nothing in the proof of marriage.'
See Condonation; Desertion, 1; Lascivious; Mar-
or to see that one.' riase; Reputed.
In criminal statutes, to live together as COIN. A piece of metal stamped and
husband and wife.
made legally current as money.*
As, in the act of Congress of March 32, 1882, c. 47, "Coin " and ' ' coinage " apply to the stamp-
forbidding polygamy."
ing of metal in some way so as to give them

>4B1 Com. 28-39; State u. Shee, 13 E. I. 636 " The Congress shall have Power
currency.^ . . To coin
case^- State v. Boyle, ib. 5-^8 (1883); 51 Me. 308; 97 Mass. Sloney, regulate the Value thereof, and of
foreign
547; 103 id. 71; 63 N. C. 398; 1 Greenl. Ev. § 38; 2
■Wbart. Ev. 1 1256; 1 B.& H. Ld. Cr. Cas. 76-«7, cases;
4 Staph. Hist. Cr. L. Eng. 99-110. 1 Jones V. Commonwealth, 80 Va. 20 (1885), Faunt-
iKSg'-nl-, or k5n'-i-zans. F. cognoissance, knowl- leroy, J.
Mge: L. cognoscere, to know,— Skeat. Also
cogni- 2 See 1 Bishop, Mar. & D. § 777, note, cases; 116 U. S.
sance, and, formerly, conusance. Law J.
75; 4 Paige, 425. As a married right, 19 Cent.
3 3 Bl. Com. 150.
5 Cush. 400 (1850), Ui (1884), cases.
• Webster v. Commonwealth, = Yardley'8 Estate. 75 Pa. 211 (1874), Agnew, C. J.
101 2 Bl. Com. 38; 3 id. 428 (187T);
Shaw, C. J. See also 08 N. Y. See also Brinckle v. Brinckle. W Leg. Int.
86, 298; 4 id. 278. Y. 4-iO-08 (1883i, cases;
"Smith, Contracts, 280. Hynes v. McDermott, 91 N.
of Bead-
• 3 Bl. Com. 397. Teter v Teter, 88 Ind. 493 (1883), cases ; Appeal
cases; 1
abide ing Fire Ins. & Trust Co., 113 Fa. SOB (1886),
'L. coTi, with; habitare, to have often,*, e., Whart Ev. ^? 84-85, cases.
with,— 54 Me. 366. 8), Wal-
.United States v. Bogart, 9 Bened. 315(187
• rCalef V. Calef , 54 Me. 366 (1867), Appleton, C. J. lace, J.; 5 Phila. 403; 16 Gray,
240.
• Cannon v. United States, 116 U. S. 55, 74-75 (1885). 6 Meyer v. Roosevelt, 35 How. Pr. 105 (1803).
 COIN 193 COLLECT

Coin." 1 " No State shall . coin Money " or ment for moneys due to the United States shall, before
" make any Thing but gold and silver Coin a Tender being issued in circulation, be coined anew.'
in Payment of Debts." ^ gee Tender, 2 (2), Legal See Attachment, Execution; Cubebnt, 2; Monky.
Tender Acts. COLD. See Cooung.
The gold coins of the United States shall be a
COIiLATEBAL.2 Does not depart from
one-dollar piece, which, at the standard weight of
twenty-flve and eight-tenth grains, shall be the unit of its non-legal, popular signification.
value; a quarter-eagle, or two and a half dollar piece; 1 . Applied to a person or person al relation —
a three-dollar piece; a halt-eagle, or flve-doUar piece; that whicli is by the side, and not in the direct
an eagle, or ten-dollar piece; and a double eagle, or line: as collateral or a collateral — ancestor,
twentj--dollar piece.
The silver coins shall be [a trade-dollar,] ' a half-
charge, consanguinity, descent, heir, inherit-
dollar or fifty-cent piece, a quarter-dollar or twenty-
ance, kindred, kinsmen, relatives, qq. v.
flve-cent piece, a dime or ten-cent piece. The weight 2. Said of a right or a thing — depending
of [the trade-dollar shall be tour hundred and twenty upon another as the more important ; addi-
grains troy; the weight of] the half-dollar, twelve
tional to some other as principal : as collat-
grams and one-half of a gram; the quarter-dollar and
the dime, respectively, one-half and one-fifth of the eral or a collateral — assurance, covenant,
weight of said half-dollar. deed, estoppel, fact, issue, limitation, obliga-
' The standard of both gold and silver coins shall be tion, promise, security, undertaking, war-
such that of one thousand parts by weight nine hun- ranty, qq. V.
dred shall be pure metal and one hundred of alloy.
The alloy of the silver coins shall be of copper. The
Collaterally attack or impeach. To
alloy of the gold coins shall be of copper, or of cop- question the validity of a thing done in
per and silver; but the silver shall in no case exceed court, in an independent proceeding : * as to
one-tenth of the whole alloy. collaterally attack a judgment or a judicial
The minor coins shaH be a five-cent piece, a three- sale, qq. v.
cent piece, and a one-cent piece; and their weight,
Not permitted, except for fraud, of a matter reg-
respectively, seventy-seven and slxteen-hundredths
ularly adjudicated by proper authority. See Adjudi-
grains troy, thirty grains, and forty-eight grains. The cation, Former.
alloy of the five and three cent pieces shall be of cop-
Collaterals. 1. Collateral kinsmen. 2.
per and nickel, three-fourths to one-fourth; the alloy
of the one-cent piece, ninety-five per centum of copper
Collateral securities, q. v.
and five per centum of tin and zinc. COLLEAGUE. See Associate, Coun-
Any gold coins in the treasury, when reduced in sel, Judge.
weight by natural abrasion more than one-half of one
per centum below the standard weight, shall be re- COLLECT. To gather together: to bring
coined.*
into the custody of one person.
There shall be coined silver dollars of the weight of 1. To gather the assets of a decedent's
four hundred and twelve and a half grains troy of estate : as for one to collect the goods of the
standard silver, as provided in the act of January 18,
1837 (5 St. L. 137).=
estate for safe-keeping, until a will is proven
Foreign coins. The value of foreign coins as ex- and an executor qualified, or an adminis-
pressed inthe money of account of the United States trator appointed.*
shall, be that of the pure metal of such coin of stand- 2. To receive or obtain money.
ard value; and the values of the standard coins in cir-
Collector. (1) A public officer charged
culation of the various nations of the world shall be
estimated annually by the director of the mint, and be with the duty of exacting and receiving
proclaimed on the first day of January by the secre- payment of moneys due the government, as
tary of the treasury.' of taxes, or of customs or revenue duties.
The valuation thus made is conclusive upon custom- See Duty, 2.
house officers and importers.'
(2) A private person employed to demand
All foreign gold and silver coins received in pay-
and receive payment of money ; a collecting
• 1 Constitution, Art. I, § 8, ol. 6. agent, q. v.
'■" Ibid. § 10, cl. 1. See generally Bronson v. Eods, 7 Collection. The act or fact of claiming
Wall. 247-^ (1808), Chase, C. J.
' Act 3 March, 1887 (24 St. L. 684), provides for the ex- and receiving payment of money.
change and retirement of the trade-doUar.
In New York, a guaranty of the collection of a de-
mand, or that it may be collected, or is collectible.
* B. S. §§ 3511-15.
» 1 Sup. E. S. p. 306: Act 28 Feb., 1878.
» Act 3 March, 1873: E. S. § 3564. » Act 9 Feb., 1793: E. S. § 3566.
' Arthur, Collector v. Kichards, 23 Wall. 246 (1874); 'L. coUateralis, side by side: con, by; latvs, side.
Cramer v. Arthur, 102 U. S. 612 (1880); Hadden v. Mer- ' See generally 25 Cent. Law J. 387 (1887), cases.
ritt, 115 id. 25 (1885). * 2 Bl. Com. 510,
 193
COLLECT
COLLEGE

means that payment can be obtained either by demand place for collection, would seem to imply, upon a rea-
or by resort to the proper legal remedy.' See Re- sonable construction, no other agreement than that it
cover. should be forwarded with due diligence to a compe-
Collect ondelivery. The initials C. 0<.D. tent agent to do what should be necessary in the prem-
mean collect on delivery, that is, deliver ises. The person leaving the note is aware that the
bank cannot personally attend to the collection, and
upon payment of the charges due to the that it must therefore be sent to some distant or for-
seller (or the price and to the carrier for the
eign agent," and that there was nothing which could
cajriage of the goods. The initials have ac- imply an assumption for the fidelity of the agent. The
quired afixed meaning v^hich the courts and case being carried to the court of eri'ors, the foregoing
decision was reversed, and the doctrine declared that
juries may recognize from their general in- the bank was responsible for all subsequent agents
formation.2
The contract of the carrier is not only for the safe employed in the collection of the paper.' The reversal
was by a vote of fourteen senators against ten. ,The
carriage and deliveiy of the goods to the consignee, but decision has since been followed in New York, and its
also that he will collect the price and the charges due doctrine adopted in Ohio. But in the courts of other
thereon, and return the price to the consignor. Should States it has been generally rejected and the views
the goods be destroyed by any other agency than an
act of God or of a public enemy, the carrier is liable, expressed by the supreme court approved. In Dor-
chester and Milton Sank v. New England Bank it
as in other cases.^ See Caarier, Common. was held by the supreme court of Massachusetts that
Collecting agent or agency. A collec- when notes or bills, payable at a distant place, are re-
tion to be made by a collecting agent imports ceived by a bank for collection, without specific in-
an undertaking by such agent himself ; not structions, itis bound to transmit them to a suitable
that he receives a claim for transmission to agent at the place of payment, for that purpose; and
that when a suitable sub-agent is thus employed, in
another for collection, for whose negligence good faith, the collecting bank is not Uable for his
he is not to be responsible.^ neglect or default."
For collection. Indorsed on negotiable In the supreme cotu*ts of Connecticut, Maryland,
paper, restrains negotiability. The indorser Blinois, Wisconsin, and Mississippi, the doctrine of the
supreme coiu'ts of New York and Massachusetts, in
may prove that he was not the owner and
the cases cited, has been approved and followed."
did not mean to give title to it or to its pro- The indorsement upon a check " For collection; pay
ceeds when collected. Such indorsement is to the order of A," is notice to purchasers that the in-
not intended to give currency or circulation dorser isentitled to the proceeds.^
Whether a stipulation in a note for the payment of
to' the paper ; its effect is limited to an au- the expenses of collection is enforceable under stat-
thority to collect.* utes allowing costs or statutes against usury, or
There is a marked difference of opinion, expressed
whether such stipulation rendei-s the instrument so
in the adjudged cases, respecting the liability of a col- uncertain as to destroy its negotiable quality, are
Jecting banker for the manner in which the notary, to
whom notes are delivered for presentment and pro- questions not uniformly settled.*
COLLEGE.^ 1. In the civil law, corpora-
test, discharges his duty. . . The supreme court of
tions were called collegia, from the idea of
New York, in AUen v. Merchunts' Bank of New York,'
said that "a note or bill of exchange left at a bank individuals being gathered together.^
And received for the purpose of being sent to a distant
Tres faciunt collegium: three form a corporation."
2. An organized assembly.
1 See Moakley v. Kiggs, 19 Johns. 70 (1821); Taylor v.
Bullen,6Cow. 626(1827); Cumpstoni;. McNair, 1 Wend. 1 22 Wend. 227-44 (1839), cases.
460 (1828); Backus v. Shipherd, 11 Wend. 634 (1834); ' Britton V. NiccoUs, 104 U. S. 761-63 (1881), Field, J.
liOveland v. Shepard, 8 Hill, 139 (1841). See also First Nat. Bank of Lynn v. Smith, 132 Mass.
"State V. Intoxicating Liquors, 73 Me. 279 (1888), 227 (1888); Exchange Nat. Bank v. Third Nat. Bank, 112
Peters, J. See also United States Express Go. v. U.S. 381-93 (18a4),lases; Central R. Co. v. Firet Nat.
Kelfer, 59 Ind. 867 (1877); American Express Co. v. Bank of Lynchburg, 73 Ga. 383 (1884) ; Bank of Sherman
iesem, 39 111. 333 (1866). V. Weiss, 67 Tex. 333-35 (1887), cases. The bank is liable
» See Pilgreen v. State, 71 Ala. 368 (1882) ; The niinois, for misappropriation by the agent; Power v. First
2 Flip. 420 (1879); Higgins v. Murray, 73 N. Y. 252, 254 Nat. Bank of Ft. Benton, 6 Monta. 251 (1887), cases: 35
1(1878); Wagner v. Hallack, 3 Col. 184 (1877); Gibson v. Alb. Law J. 185-90, oases contra. See 18 Cent. Law J.
American Express Co., 1 Hun, 389 (1874); Baker v. 165-70 (1884), cases; 80 Am. Law Rev. 889-901 (1886),
Boucicault, 1 Daly, 26-27 (1860); cases supra. cases.
< Hoover v. Wise, 91 U. S. 310-15 (1875), cases: Hunt, a Bank of the Metropolis v. First Nat. Bank of Jersey
Field, Swayne, Davis, Strong, JJ., and Waite, C. J.,
City, 19 F. R. 303 (1884), cases.
•concurring; Miller, Clifford, and Bradley, JJ., dis- < Merchants' Nat. Bank v. Sevier, 14 F. R. 662, 667-75
.senting. '
(1883), cases.
s Sweeney v. Easter, 1 WaU. 173-74 (1863), cases. = L. con-llgere, to bring together, assemble.
■« 15 Wend. 487 (1836), cases. » 1 Bl. Com. 469.
(13)
 COLLISION 194 COLLOQUIUM

Electoral college. The body of electors States coiu+s, as courts of admiralty, have not exclu-
chosen by the people, in pursuance of the sive iurisdiotion, the right to any common-law remedy
Xllth Amendment, to elect a President and being expressly saved by statute (R. S. § 563).i
Under the act of March 3, 1851 (R. S. §§ 4282-87), the
a Vice-Pi-esident of the Uiiited States, i See owner is entitled to a limitation of liability to the value
Electoral. of his interest in the ship and in her earned freight, at
3. Referring to an institution of learning, the termination of the voyage,— which may be by loss
of the ship at sea. The subsequent repair of a wrecked
may more naturally apply to the place where
vessel, giving her increased value, is not an element;
a collection of students is contemplated than nor is any insurance had on the vessel: that being a
to the hall or building intended for their ac- collateral and_personal interest. And the right to
commodation.^ proceed for a limitation of liability is not lost by a
In a statute exempting colleges and academies from surrender of the vessel to the underwriters."
taxation, means a seminary of learning: not the as- The limitation may be claimed by way of defense,
semblage ofthe professors and students, nor tlie trust- or by surrendering the ship or by paying her value
ees in their corporate capacity, but certain property into court. The latter method is necessary when the
belonging to them, 'with the edifices and the lands owner desires to bring all claimants into ooncoui'se
whereon the same are erected.* See Abode; Char- for distribution."
ITT, 2; Endowment, 2; Medical; Permanent; School, Where both vessels are in fault, the one that suffers
Public. least is decreed to pay the other the amount necessary
to make them equal; that is, one-half the difference
COLLISION".* A striking together or between the respective losses. * The decree should be,
impact of two bodies — Tehicles or vessels, not; in solido for all damages and costs, but severally
more commonly the latter. against ieach vessel for one-half thereof , any balance
Includes "allision" — when a stationary unrecovered from one to be paid by the other vessel,
and to the extent of her stipulated value beyond the
body is struck by a moving body ; also, in-
juries from one thing being rubbed or pressed moiety due from her.^
Where the collision is between foreign vessels on
against another — as one vessel lying along- the high seas, the Federal courts have jurisdiction, the
side of another,' first court that obtains it exercising it under the gen-
1. As to collisions between vehicles, see Accident; eral maritime law as understood in the comts of the
Cahrier, Common; Negligence; Road, 1, Law of.
country. •
See further Accident, Inevitable ; Actor, 1, Sequitur;
2. A vessel engaged in commerce is liable for dam-^
age occasioned by a collision, on account of the Admirajltt; Libel, 4; Re's; Rbstitdtio; Tug.
complicity, 'direct or indirect, of the owner, or the COLLOQUIUM. L. A speaking to-
negligence or want of care or skill of the navigator.
The reason is, the owner employs the master and the gether :a conversation.
An averment, in an action for slander, that
crew. Any fault is imputed to him, and his vessel is
liable. Otherwise when the person in fault does not the defendant spoke the words in a certain
stand in the relation of agent to the owner.* conversation {in quodam colloquio) he had
V?bere neither vessel is in fault, a loss rests where with another person, concerning the plaintiff.
it falls; where both vessels are in fault, the damages When the words are actionable in themselves, a
are proportioned equally; where one vessel alone is in colloquium, averring a speaking of and concerning
fault, it pays all damages. When both vessels are in the plaintiff, is sufficient. When the words have a
fault, an innocent person, as, a shipper or consignee, slanderous meaning, not of their own intrinsic force,
who is injured, may recover of either vessel or of its but by reason of the existence of some extraneous
owner all the loss, and may pursue his remedy at
common law, or in admiralty by proceedings in rem
Blatch. 84-91 (1879), cases; The Clara, 102 U. S. 203
or in personam.'^ For suits in personam, the United
(1880), cases; The Benefactor, ib. 214 (1880).
1 See 2 Story, Const. §§ 1438-74; 15 Alb. Law J. 220 1 Schoonmaker v. Gilmore, 102 U. S. 118 (1880), cases.
(1877). 2 The City of Norwich, 118 U. S, 469, 489-506 (1866),
' [Stanwood v. Peirce, 7 Mass. 460 (1811), Parsons, C. J. Bradley, J.: Waite, C. J., Field, Woods, and Blatch-
' [State u. Ross, 24 N. J. L. 498 (1854), Haines, J.,— foTd, JJ., concurring; Matthews, Miller, Harlan, and
Case of the College of New Jersey. Gray, JJ., dissenting — ib. pp. 526-41. The other cases,
* L. eollidere, to strike together. The Scotland, ib. 607, and The Great Western, ib. 520,
'See The Moxey, 1 Abb. Adm. 73(1847); Wright v. being considered in the same connection.
Brown, 4 Ind. 96 (1853); The City of Baltimore, 5 Bened. »The Great Western, 118 U. S. 520 (1886). See also
474 (1872). Norwich Co. v. Wright, 18 Wall. 104, 116-28 (1871),
•Sturgis V. Boyer, 24 How. 123 (1860), Clifford, J.; cases; The Benefactor, 103 U. S. 246 (1880).
The Clarita, 23 Wall. 11 (1874). • The North Star, 106 U. S. 20, 17-22 (1882), cases,
' Union Steamship Co. v. N. T. & Ta. Steamship Co., Bradley, J. See, as to dividing the loss, 2 Law Q. Rev.
24 How. 313 (1860), ClifEord, J.; The Continental, 14 357-63 (1886).
Wall. 355 (1871); The Atlas, 93 U. S. 302 (1876); The • The Stirling, 106 U. S. 647 (1882), cases, Waite, C. J.
Juniata, ib. 337 (1876); Vanderbilt v. Eeynolds, 16 • The Belgenland, 104 U. S. 355, 361 (1885), cases.
 195
COLLUSION COLOR

fact, this fact must first be averred as inducement, out indication of preference for any bene-
and then there must he a colloquhtm^ averring a ficiary, class, or object.
spealcing of or concerning the plaintiff. Lastly, the
Where a general and a particular intent are ex-
word " meaning," or innuendo, is used to connect the pressed, the latter, in a case of doubt as to the testa^
matters thus introduced with the particular words
laid, showing their identity, and drawing what is the tor's meanmg, is made to yield to the former.' See
Cy Pkes; Will, 3.
legal inference from the whole declaration that such,
Color of law. Pretense or semblance of
was, under the circumstances thus set out, the mean-
ing of the words." See Innuendo; Slander. legal right or authority. 2 See Extortion.
COLLUSION.^ An agreement between Color of oflB.ee. Pretense or semblance
persons to defraud another of his rights by of official right to do an act by one who
the forms of law or to obtain an object for- has no right ; pretended authority of office.
bidden by law. 3 Whence collusive. See See further Officer, De facto; Officium,
Fraud. Colore.
COLONIES. See Independence; Law, Color of title. That which in appear-
Common ; Religion ; State, 2 (3, b) ; Tax, 2 ; ance istitle, but which in reality is no title.'
Wreck. The resemblance or appearance of title.
COLOR. 1. Darkness of skin from pres- Whenever an instrument, by apt words of
ence of African blood. transfer from grantor to grantee, in form
The phrase " persons of color " embraces, passes what purports to be the title, it gives
universally, not only all persons descended color of title.*
wholly from African ancestors, but also those May he made through a conveyance, a bond, a
contract, or bare possession under a parol agreement.
who have descended in part only from such
Whether the title be weak or strong is of no impor-
ancestors, and have a distinct admixture of tance. What is color of title is a matter of law for the
African blood.* court. If good faith be a, necessary element in the
" Colored " race means " African " race.* claim, that is for a jury. . . A claim under a con-
In 1868, in Virginia, "colored person" was substi- veyance, however inadequate to carry the true title,
tuted for "negro," which word before that time in- and however incompetent the grantor, is sych a claim
cluded negro
" " and " mulatto." The act of February under color of title, and one which will draw to the
27, 1868, like the Code of 1849, provided that " every possession of the grantee the protection of the statute
person having one-fourth or more negro blood shall be of limitations, other requisites of the statutes being
deemed" a colored person.' See Citizen; School, complied with.= See Possession, Adverse. Compare
Separate; White. Cloud, On title.
2. Appearance ; apparent reality, validity, Give color. To admit the appearance of
or legality ; also, pretense. right in favor of an adverse party.
Colorable. Existing in aspect merely; " In trespass, if the defendant desires to refer the
validity of his title to the court, he may state his title
not real : as, a colorable abridgment or alter-
ation of a copyrighted production, imitation specially, and at the same time ' give color ' to the
plaintiff, or suppose him to have an appearance of
of a trade-mark, assignment, claim or de- title, bad indeed in point of law, but of which a jiiry
fense, change of possession, title, qq. v.
are not,competent to judge." '
Colorless. Without intimation as to mo- " Giving color " is a phrase borrowed from the
tive or preference. ancient rhetoricians. In pleading it signifies an ap-
Colorless mil. A will characterized by a parent or prima /octe right; and the meaning of the
rule that every pleading in confession and avoidance
general intent to effect a stated disposition must give color is,- that it must admit an apparent
of property, without intimation as to the right in the opposite party, and rely, therefore, on
motives for making the several gifts, or with- some new matter by which that apparent right is de-
feated. . . The kind of color which is nati^ally
1 Carter v. Andrews, 16 Pick. 6 (1834), Shaw, C. J.
See also 23 Pa. 83; 53 id. 421; 1 Greenl. Ev. § 417. 1 See Schouler, WiUs, § 476, cases; 1 Eedf. Wills,
»433, oases.
>L. colludere, to co-act in a fraud: con-ludere, to
play together. ' See United States v. Deaver, 14 F. R. 699 (1882).
s See Baldwm v. Mayor of New York, 45 Barb. 369 » Wright «. Mattison, 18 How. 66-59 (1655), cases.
(1856): s. u. 30 How. Pr. 30, quoting Bouvler and others. « HaU V. Law, 103 U. S. 466 (1880), Field, J.
« Johnson v. Town of Norwich, 39 Conn. 408 (1861),
•Wright V. Mattison, supra. See also 26 Am. Law
Storrs, C. J. See also Van Camp v. Board of Educa- Eeg 409-19 (1887), cases; 4 Saw. 539; 4 170;DiU. 555-68; 10
tion, 9Ohio St. 411 (1859); 9 Ired. L. 384; 31 Tex. 87. F E 536; 33 Cal. 676; 33 Ga. 242; 66 id. 33 111. 510;
= Clark V. Directors of Muscatine, 24 Iowa, 375 (1868); 79
69 id. 140; 30 Iowa, 486; 32 Md. 358; 27 Minn. 63-63;
People V. Hall, 4 Cal. 399-404 (1854); 37 Miss. 209. N. C. 491 ; 38 Vt. 345; 6 Wis. 536.
• Jones V. Commonwealth, 80 Va. 543-44 (1885). « 3 Bl. Com. 309.
 COMFORT
COLT 196

latent in the structure of all regular pleadings in con- by undue competition, is not in restraint of trade or
fession and avoidance is "implied color," to distin- against public policy. ^
guish itfrom the kind which, in instances, is formally A combination is criminal whenever the act to be
inserted in the pleading, and known as "express done has a necessary tendency to prejudice the public
color." To the latter, the term usually applies.^ or to oppress individuals by unjustly subjecting them
Colore officii. By color of office. See to the power of the confederates, and giving effect
Color, 3, Of office. to the purposes of the latter, whether of extortion or
COLT. See Horse. mischief. 2
The gist of the offense is the conspiracy. If the
COLUMBIA. See CouRTS.United States ; motives of the confederates be to oppress, or the
District, Of Columbia, means unlawful, or the consequences to others injuri-
COM. See CuM. ous, it is a conspiracy. Thus, a confederation to raise
COMBAT. A combat in which both or depress the price of stocks, labor, merchandise, or
the natural products, is a conspiracy."
parties enter willingly is " mutual." A confederation or conspiracy by an associated
A person who enters into a combat armed with a body of ship-owners, which is calculated to have and
concealed deadly weapon may use it to protect his has the effect of driving the ships of other persons,
life, if his adversary, who struck the first blow, resorts
to such a weapon; and he will not be guilty of assault and those of the p"laintiff in particular, out of a certain
line of trade, — even though the immediate' object be
with intent to murder unless he intended from the
not to injure the plaintiff but to secure to the conspir-
first to use the weapon if necessary to overcome his ators a monopoly of the carrying trade between cer-
antagonist.^ See Fight. tain ports, — is, or may be, indictable, and therefore
COMBINATION. 1. In the law of actionable, it private and particular damage can be
patents, the union of different elements. shown. To warrant the court in granting an interim
A combination is patentableonlj when the several injunction he who complains must show that he has
elements of which it is composed produce by their or will sustain "irreparable damage," that is, damage
joint action a new and useful result, or an old result for which he cannot obtain adequate compensation
in a cheaper or otherwise more advantageous way.^ without the special interference of the court.*
Limitations and provisos imposed by the inventor "If a large number of men, engaged for a certain
will be constiTaed strictly against him, as in the nature time, should combine together to violate their con-
of disclaimers.' tract, and quit their employment together, . . it
would surely be a conspiracy to do an unlawful act,
' A combination may be infringed when some of its
. elements are employed and for others are used me- though of such a character that, if done by an indi-
chanical equivalents known to be such when the vidual, it would lay the foundation of a civil action
patent was granted.* only, and not of a criminal prosecution." ^
See further Noveltv; Equivalent, 2; Patent, 2. See Boycotting; Cokspiraot; Strike, 2; Trade,
Eestraints; Trades-Unions.
2. In penal and criminal laws (as in a stat-
COME. See Appearance, 3; Reside;
ute providing that one comm^on carrier may Venirb.
not combine with another for any purpose),
COMES. L. See Constable; County.
a coalition, union, mutual agreement, or
COMFORT. Whatever is necessary to
other blending, for any purpose whatever;
give security from want, and furnish reason-
as, for creating a monopoly.^
A combination between the mantifacturers of a able physical, mental, and spiritual enjoy-
ment.
patented article (a balance shade-roller), intended not
to restrict production but simply to maintain a fair and So held where an executor was directed to pay the
uniform price, and to prevent the injurious effects to testator's widow as much of a certain fund as is "nec-
producers and consumers of fluctuating prices caused essary for her comfort." « See Aid, 1.
'Central Shade-EoUer Co. v. Cushman, 143 Mass.
' Stephen Plead., Tyl. ed., 306, 210. See Gould, PI. 364 (1877); Craft v. McConoughy, 79 111. 346 (1875). See
322; 2 Chitty, PI. 655. generally as to combinations for stifling competition,
aAldrige v. State, 59 Miss. 255(1881), Chalmers, C. J. 20 Am. Law Eev. 195-216(1886), cases.
" Stephenson v. Brooklyn E. Co., 114 U. S. 157 (1885); 2 Commonwealth v. Carlisle, Brightly's Eep. 40 (Pa.,
Thatcher Heating Co. v. Burtis, 121 id. 286, 295 (1887), 1821), Gibson, J. See Commonwealth v. Gallagher, 8
cases. Pa. L. J. Eep. 64 (1814).
4 Sargent v. Hall Safe and Lock Co., 114U. S. 86(1885), ' Morris Eun Coal Co. v. Barclay Coal Co., 68 Pa.
cases. 173, 186-88 (1871), cases. See also Vanarsdale v. Lav-
sRowell V. Lindsay, 113 U. S. 102 (1885), cases. See erty, 69 id. 103, 108 (1871) — an agreement not to em-
also Booth V. Parks, 1 Flip. 381 (1884), cases ; Hill v. Saw- ploy one-as a teacher.
yer, 31 F. E. 282 (1887), cases; 20 Wall. 368; 92 U. S. 357; « Mogul Steamship Co. v. M'Gregor, Gow & Co.,
109 id. 420; 111 id. 103; 17 F. E. 80, cases; 19 id. 509, L. E., 15 Q. B. D. 476, 482 (1885), Coleridge, C. J.
'Commonwealth v. Hunt et al.,i Mete. 131 (1842),
• Watson V. Harlem, &o. Navigation Co., 52 How. Pr. Shaw, C. J.
353 (1877). ' Forman v. Whitney, 2 Keyes, 168 (1865>
 197
COMITATUS COMMENCE

sake of harmony and to avoid contusion, the Federal

COMITATUS. See' County, Power of. courts will lenn to an agreement of views with the
COMITY.i Courtesy: deference, from State courts if the question seems to them balanced
good feeling or feeling of equality. with doubt. As, however, the object of giving to the
Comity of nations, or between States. National courts jurisdiction to administer the laws of
Expresses the basis upon which one inde- the States in controversies between citizens of differ-
ent States was to institute independent tribunals which
pendent sovereignty applies -within its own
territory the laws of another sovereignty, in it might be supposed would be unaffected by local
a matter as to which the latter or its citizen prejudices, it is their duty to exercise an indepe,ndent
judgment in cases not foreclosed by previous adjudi-
' is concerned. 2
cation. ^
Upon this basis rest observances under extradition COMMAND. See Mandate ; Peohibere ;
treaties, q. v. And some adjudications upon the estates Ratihabitio.
of decedents and insolvents are respected, between the
States, to the extent that reciprocity obtains. COMMENCE. In several uses has a
Comity obtains to permit the corporations of one somewhat technical import:
State to pursue a lawful business in another State.^ Commencement of a building. Work
Judicial comity. The respect which done on the ground the effect of which is ap-
tribunals of independent jurisdictions enter- parent. See further Building.
tain for the decisions of each other, in the Commencement of an action, prose-
determination of questions involving refer- cution, or suit. Such inception of judicial
ence to extra-territorial law. proceedings as affects the several defendants ;
The Federal courts adopt the construction given to as saves the cause from the bar of the statute
a State's constitution or statutes by the courts of that
State, whatever the opinion as to their soundness, ex- of limitations, q. v. ; or as assures the juris-
cept where the highest State court has given different diction, when collaterally questioned.
constructions, and rights have been acquired imder In civil actions, at common law, suing out or issu-
the earlier construction; in which case they follow ing the writ " commfences " an action; in equity prac-
the latter;* except, also, in interpreting a contract tice, filing the bill, or, perhaps, issuing and endeavor-
between States, whether the contract is in the shape ing to serve the subpoena; under codes of procedure,
of a law or of a covenant by State agents; * and ex- service or publication of the summons. ^ See Beodght.
cept in cases where the Constitution, a treaty, or a Before an action can be commenced, the cause of
statute of the United States, provides otherwise.* action must be complete,— the day for payment must
They give a change in construction the same effect in have passed, a precedent condition must have been
its operation upon existing contract rights that they performed ; the plaintiff must have the necessary priv-
give to a legislative amendment — they make it pros- ity, and as against the particular defendant; in the
pective.' But they are not bound by decisions upon case of a tort there must be a legal injury (g. v.)^ and,
commercial law. * possibly, the act must not amount to an untried felony;
Where the law of a State is not settled, it is the where there is a breach of a public duty, particular
right and the duty of the Federal courts to exercise damage must have resulted to the plaintiff.^
their own judgment; as they always do in reference Commencement of an indictment.
to the doctrines of commercial law and general juris- The most common form (derived from Eng-
prudence. So,when contracts have been entered into,
and rights have accrued thereon imder a particular land) is "The jurors of the people of the
state of the decisions, or where there has been no de- State of , in and for the body of the
cision, of the State tribunals, the Federal courts claim county of , upon their oath present," etc.^
the right to adopt their own intert)retation of the law Compare Caption, 2.
applicable to the case, although a different interpreta-
tion may be adopted by the State courts after such
rights have accrued. But even in such cases, for the ■Burgess v. Seligman, 107 U. S. 33-31 (1883), cases,
Bradley, J. See also Pana v. Bowler, ih. 641 (1883),
' L. comitas, urbanity: comis, friendly. cases; Norton v. Shelby County, 118 id. 439 (1886).
' See Story, Confl. Laws, §§ 83, 33-38. ' See generally 26 Cent. Law J. 31-33 (1888), cases; 2
•Cowell V. Saratoga Springs Co., 100 U. S. 59 (1879); McCrary, 189; 4 Woods, 108; 11 F. R. 317; 17 ia. 475; 10
Memphis, &c. E. Co. v. Alabama, 107 id. 581, 585 (1882), Ark. 120, 479; 19 Cal. 557; 31 id. 351; 45 irf, 125; 30 Ga.
cases. 873; 1 Ind. 276; 11 id. 48, 354; 8 Iowa, 309; 9 id. 178; 10
• Fairfleld v. County of Gallatin, 100 U. S. 53 (1879), id. 308, 418; 16 id. 59; 3 A. K. Marsh. 18; 5 Bush, 435; 15
cases; CaroU County -u. Smith, 111 id. 563 (1884), cases. Mass. 4.55; 7 Me. 370; 33 Mich. 112; 42 Miss. 241; .36 id.
» Jefferson Branch Bank v. Skelly, 1 Black, 436 (1861) ; 40; 6 N. H. 34); 47 id. 34; 37 N. Y. 122; 10 Barb. 318; 6
Wright «. Nagle, 101 U. S. 793 (1879). Cow. 471, 519; 17 Johns. 65; 36 Pa. 474; 84 id. 124; 15 id.
" Gates V. Nat. Bank of Montgomery, 100 U. S. 346 393; 1 E. I. 17; 11 Humph. 303; 10 Tex. 155; 28 id. 713;
(1879), cases. 30 id. 494; 42 Vt. 562; 55 id. 356; 6 W. Va. 336.
' Machine Co. v. Gage, 100 U. S. 676 (1879); Douglass 3 See 21 Cent. Law J. 401-12 (1885), cases.
V. County of Pike, 101 id. 687 (1879). * People V. Pennett, 37 N. Y. 122 (1867).
 COMMENDATIO 198 COMMEECE

COMMENDATIO. L. Commending; as far as practicable, uniformity of decision through-

recommending. out the world." See Negotiable.
Simplex eommendatio non otaligat. Commercial agency. See Communication,
Privileged, 2.
A mere recommendation does not bind : the
Commercial traveler. See below, and
expression of an opinion does not constitute a
Deummer; Merchant.
warranty. Abridged, Simplex eommendatio.
A false assertion of value, when no warranty is in- In some connections " commerce " relates
tended, isnot a ground of relief to a purchaser: the to dealings with foreign nations; " trade," to
assertion is a matter of opinion, which does not imply mutual traffic among ourselves, or to the buy-
Imowledge, and in which men may differ. Every per- ing, selling, or exchange of articles among
son reposes at his peril in the opinion of others, when
he has equal opportunity to form and exercise his members of the same community.^
own judgment.! The application of the term commerce is
" The law recognizes the fact that men will natu- generally discussed with reference to the pro-
rally overstate the value and qualities of the articles vision (called the commerce or commercial
which they have to sell." A buyer has no right to
rely upon mere " dealer's talk." " See Caveat, Emp- clause of the Constitution) that "The Con-
tor; Wakranty, 2. gress shall have Power ... To regulate
COMMERCE.' In its simplest significa- Commerce with foreign Nations and among
tion, an exchange of goods; but in the ad- the several States, and with the Indian
vancement of society, labor, transportation,
intelligence, care, and various mediums of By force
Tribes." ^ of this provision, the subject, the
exichange, become commodities , and enter vehicle, the agent, and their various opera-
into commerce.* tions, become the objects of commercial reg-
The interchange or mutual change of ulation byCongress.*; 5
goods, productions, or property of any kind, Commerce is more than traffic. It em-
between nations or individuals.^ braces, also, transportation by land and
"Transportation" is the means by which "com- water, and all the means and appliances
merce "is carried on.' necessarily employed in carrying them on.6
Commercial. Concerning commerce, A term of the widest import, comprehend-
trade, ortrafBc; pertaining to the. customs ing intercourse for the purpose of trade in
of merchants, or to the law-merchant ; mer- any and all its forms, including the trans-
cantile: as, conimercial or a commercial — portation, purchase, sale, and exchange of
broker, corporation, domicil, law, paper, reg-
ulation, term, qq. v. commodities.''
Commercial intercourse between nations
Commercial law is not peculiar to one State nor de- and parts of nations, in all its branches.^
pendent upon local authority, but arises out of the
usages of the commercial world. The Federal courts " To regulate " this trade and intercourse is to pre-
scribe the rules by which it shall be conducted.'
are not controlled by the decisions of the courts of a
Commerce comprehends navigation,* including
State upon matters of commercial law.'
Mercantile law is a system of jurisprudence ac- navigation on rivers and in ports;" transportation of
knowledged by all commercial nations. Upon no
subject is it of more importance that there should be, 1 Goodman v. Simonds, 80 How. 364 (1857); 13 Am. L.
Reg. 473 (1878).
' 3 Kent, 485, cases ; Gordon v. Parmelee, 2 Allen, 314 = People V. Fisher, 14 Wend. 15 (1835), Savage, C. J.
(1«61), Bigelow, C. J.; Hull v. Field, 76 Va. 605 (1882); See also People v. Brooks, 4 Denio, 436 (1847); Sears v.
Tenney v. Cowles, 67 Wis. 694 ,(1886) ; Dillman v. Nadle- Commissionei-s, 36 lud. 270-80 (1871).
hoffer, 119 HI. 575 (18S7), cases. ' Constitution, Art. I, sec. 8, cl. 3.
' Kimball v. Bangs, 144 Mass. 323 (188r), Morton, 0. J. ; • Gibbons v. Ogden, ante.
Mooney •!;. Miller, 102 id. 220 (1869); .Gordon v. Butler, ' Council Bluffs v. Kansas City, &c. R. Co., ante.
105 U. S. 557 (1881); Southern Development Co. v. Silva, " Chicago, &c. E. Co. u. Fuller, 17 Wall. 568 (1873): 3
125 «. 256(1888). Story, Const. §§ 1061-62.
8 L. conuiiercium, trade: con, with; merx, goods. ' Welton V. Missouri, 91 U. S. 330, 275 (1875), Field, J.;
* Gibbons v. Ogden, 9 Wheat. 1, 329 (1834), Marshall, Webber v. Virginia, 103 id. 350 (1880) ; Walling v. Mich-
Chief Justice. igan, 116 id. 464 (1886); Robbins v. Taxing District,
s Council BlufEs v. Kansas City, &c. E. Co., 45 Iowa, 120 id. 497 (1887); 122 id. 358; 128 id. 129.
349 (1876), MUler, C. J. See also People v. Raymond, ' Henderson v. Mayor of N. Y. City, 93 U-. S. 270
34 Cal. 497 (1868). (1875), Miller, J. ; Gloucester Ferry Co. v. Pennsylvania,
" Brooklyn, &c. E. Co. v. Nat. Bank of Eepublic, 103 114 id. 303 (1885).
U. S. 31-33 (1880); ib. 55. "Gilman v. Philadelphia, 3 Wall. 734 (1865); South
 COMMERCE 199 COMMERCE

passengers;' intercourse by telegraph. 'i' But it does has entered the State, from burdens imposed by rea-
not concern matters of trade and traffic between citi- son of its foreign origin.'
zens of the same State; as, a trade-mark or a policy of In every case where a State law has been held null,
insurance.' it created, in the way of a tax, a license, or a condi-
tion, a direct burden upon commerce or interfered
"Commerce with foreign Nations" refers
to commerce between citizens of the United with its freedom ; ^ it regulated or impeded commerce
or discriminated between its own citizens and out-
States and subjects of foreign countries; siders, prejudicially to the latter.
foreign commerce. Commerce " among(g. v.) For example, a State cannot require a license to sell
the several States" refers to couiLuerce be- foreign goods remaining in the packages in which
tween citizens of different States; domestic they were imported; that would operate as a tax on
the goods.*) * Nor may it discriminate against ped-
commerce.' Commerce "with the Indian
dlers; *nor against commercial travelers or drimi-
Tribes'" applies only to cases where the tribe mers; ' nor against sewing machine companies.* It
is wholly within the limits of a State.* may not tax sales of foreign liquors, unless domestic
Commerce being national in its operation is placed liquors are taxed in equal degree;* nor tax passen-
under the protecting care of the National government.* gers, freight, or cars brought into, taken from, or car-
Commercially this is but one country, and intercourse ried through its borders to or from other States or
is to be as free as due compensation to the carrier in- ■ countries.' It may not exact wharfage solely of a
terest ■will allow. Local interference is forbidden.* vessel laden with articles not products of the State;
The power is vested in Congress to insure uniformity nor impose tonnage duties upon foreign vessels, to
of commercial regulations, where such uniformity is pay quarantine expenses; ^ nor collect tonnage duties
practicable, and as against conflicting State regula- of its own citizens, engaged in commerce within its
tions. The non-exercise of the power is equivalent to own limits," except as to a vessel owned by a resident
a declaration that it shall be free from restrictions.' of a city, for city purposes and not for the privilege of
It is not everything that affects commerce that trading; "> nor may it exact a premium for a vessel
amounts to a "regulation" of it; as, local regulations brought to its ports; ^' nor require a sum for each pas-
of ferries, of hackmen, millers, inn-keepers, ware- senger brought from a foreign country; '* nor extort
housemen.'*)'* money to prevent immigration ; '^ but it may require a
Each State retains absolute control over its own ter- list of passengers, with their ages, occupations, etc.'*
ritory, highways, bridges, corporations, etc." What it may do to keep out paupers and convicts, ia
The powers vested in Congi-ess keep pace with the the absence of legislation by Congress, has not as yet
progress of the country, and adapt themselves to the been decided."
new developments of time and circumstances. . .
» Welton V. Missouri, and other cases, ante.
They were intended for the government of the busi-
ness to which they relate at all times, and imder all = Sherlock v. AlUng, 93 U. S. 103 (1876).
* Brown v. Maryland, 12 Wbeat. 436 (1837); Cook V.
circumstances. *
Commerce by water was principally in the minds Pennsylvania, 97 U. S. 566 (1878).
of the framers of the Constitution ; transportation on < Ward V. Maryland, 12 WaU. 418 (1870); WalUng v.
land being then in vehicles drawn by animals.* Michigan, 116 U. S. 454 (1886).
"Howe Machme Co. v. Gage, 100 U. S. 678 (1879).
The Constitutional provision covers property trans-
« Tiernan v. Einker, 102 U. S. 123 (1880).
ported as an article of commerce from foreign coim-
tries, or from another State, from hostile or interfering
' State Freight Tax, 15 Wall. 232 (1872)'; State Tax on
State legislation, until mingled with part of the gen- Railway Receipts, ib. 284 (1872); Gloucester Ferry Co.
eral property of the country, and protects it, after it V. Pennsylvania, 114 U. S. 203 (1885); Hckard v. Pullman
Southern Car Co., 117 id. 34 (1886); Philadelphia, &c.
Carolmai). Georgia, 9-3 U. S. 13 (1876); Western Union Steamship Co. v. Pennsylvania, 123 id. 326, 338-46 (1887),
Tel. Go. V. Pendleton, 13-2 id. 3j8(188rj; 115 id. 203. cases, Bradley J., explaining State Tax on PjiHway
1 Steamboat Co. v. Livingston, 3 Cow. 713 (1885) ; Receipts, supra.
People II. Eaymond, 34 Cal. 497 (1868). speete v. Morgan, 19 WaU. 581 (1673); Cannon v.
= Western Union Telegraph Co. v. Atlantic, &c. Tel. New Orleans, 20 id. 577 (1874).
Co., 5 Nev. 109 (1869). » State Tonnage Tax, 12 Wall. 204 (1870).
= Trade-Mark Cases, 100 U. S. 96, 95 (1879); County of 10 The North Cape, 6 Hiss. 505 (1876); Wheelmg, &e.
Mobile V. Kimball, 103 id. 697 (1880); Gloucester Ferry Transportation Co. v. Wheelmg, 99 U. S. 273 (1878).
Co. V. Pennsylvania, 114 id. 197 (1885).
i> Steamship Co. v. Port- Wardens, 6 Wall. 31 (1867).'
« United States v. HoUiday, 3 Wall. 417-18 (1865); ■2 Passenger Cases, 7 How. 283 (1849); People v. Com-
United States v. Forty-Three GaUons of Whiskey, 108
U. S. 494 (1883). pagnie Transatlantique, 107 U. S. 59-60 (1882), cases;
Western Union Tel. Co., Wiggins Ferry Co. v. East St. LouiS, ib. 371-75 (1882),
» Pensacola Telegraph Co. v. cases; 92 id. 266-69.
96 U. S. 9 (1877).
1* Chy Lung v. Freeman, 92 U. S. 275 (1875). But Con-
'Baltimore, &c. B. Co. v. Maryland, 21 Wall. 474, gress may regulate it by unposing a duty to mitigate
472, 470 (1874). (1884).
incidentol evUs; Head Money Cases, 112 id. 580
' Gihnan v. Philadelphia, and other cases, ante. >4City of New York v. Miln, 11 Pet. 102 (1837); 92
« State Tax on Railroad Receipts, 15 Wall. 293 (1872). U. S. 266-69.
» Munn V. Illinois, 94 U. S. 135 (1876). >6 Henderson v. Mayor of N. Y. City, 92 U. S. 260 (1875).
 COMMERCE 200 COMMERCE

A State may not grant an exclusive right to main- State legislation is not forbidden on matters either
tain telegraph lines within its borders.' Nor may it local in nature or operation, or intended to be mere
prohibit the driving of cattle into it, during certain aids to commerce, for which special regulations' can
months.' more effectually provide; such as harbor pilotage,
Ijiter-State commerce cannot be taxed at all, even beacons, buoys, and navigable rivers within a State, if
though the same amount of tax should be laid on do- free navigation is not thereby impaired. Withrespect
mestic commerce, or that which is carried on wholly to all' such subjects Congress, by non-action, declares
within the State. The negotiation of sales of goods that, until it deems fit to act, they may be controlled
which are in another State, for the purpose of intro- by State authority. . . The States have as full con-
ducing them into the State in which the negotiation is trol over their purely internal commerce as Congress
made, is' inter-State commerce. Therefore, a State has over inter-State and foreign commerce. . . But
statute imposing a license tax upon." drummers " and as far as an exercise of the power relates to matters
others selling by sample is unconstitutional as ap- which are purely national in character, and require
plied to citizens of other States.^ uniformity of regulation affecting all the States, the
If the power to tax inter-State or foreign commerce power is exclusive in Congress. ^
exists, it has no limit but the discretion of the State, It is Congress, not the judicial department, that is,
and might be exercised in such a manner as to drive to regulate commerce. The courts can never take the
away the commerce, or to load it with an intolerable initiative on this subjeofc They interpose to prevent
burden, seriously affecting the business and prosperity or redress acts done or attempted under the authority
of other States; and if those States, by way of retalia- of unconstitutional State laws: the non-action of
tion, or otherwise, should impose like restrictions, the Congress, in the cases, being deemed an indication of
utmost confusion would prevail in our commercial its will that no exaction or restraint shall be im-
affairs. This state of things actually existed under
the Confederation.^ The power in Congress is paramount over all legis-
A statute requiring locomotive engineers to be posed.' lative powers which, in consequence of not having
licensed by a board of examiners, and prescribing pen- been granted to Congress, are reserved to the States.
alties for its violation, is not imconstitutional, as a It follows that any legislation of a State, although in
regulation of inter-State commerce, even when ap- pursuance of an acknowledged power reserved to it,
plied to the case of an engineer operating a locomo- which conflicts with the actual exercise of the power
tive attached to a train running between points in of Congress over commerce, must give way before
different States.' the supremacy of the national authority. As the
' Some statutes also conflict with the prohibition on regulation of commerce may consist in abstaining
the States against levying imposts or duties on im- from prescribing positive rules for its conduct, it can-
ports or exports. But since this provision refers ex- not always be said that the power to regulate is dor-
clusively toarticles brought from foreign countries, a mant because not afiflrmatively exercised. And when,
State may tax auction sales or other property when it is manifest that Congress intends to leave commerce
there is no discrimination against citizens or products free and unfettered by positive regulations, such iur
of another State. A purchaser of goods from abroad, tention would be contravened by State laws operating
which are at his risk until delivered; is not an im- as regulations of commerce as much as if these had
porter, and the goods maybe taxed.*
A State may authorize the building of bridges or been enceexpressly
of the power forbidden. In has
in Congress such been
cases," the exist-
construed to
dams over navigable rivers, provided they do not be exclusive, withdrawing the subject as the basis of
materially obstruct navigation.' See Span. legislation altogether from the States. There are
many cases, however, where the acknowledged powers
of a State maybe so exerted as to affect foreign or
' Pensacola Telegraph Co. v. Western Union Tel. Co., inter-State commerce without being intended to oper-
96U.S. 9(1877).
ate as commercial regulations. If such regulation
"Haanibal, &c. E. Co. v. Husen, 95 U. S. 465 (1877). conflicts with the regulation of the same subject by
' Bobbins v. Taxing District of Shelby County, Ten- Congress, either as expressed in positive laws or as.
nessee, 180 U. S. 497 (March 7, 1887), Bradley, J. ; Waite, implied from the absence of legislation, such State
C. J., Field, and Gray, JJ., dissenting; 121 id. 246; legislation, to the extent of that conflict, must be re-
Exp. Asher, 28 Tex. Ap. 682 (1887): 27 Am. Law Reg. 77 garded as annulled. To draw the line of interference
(1888); ib. 89-94, cases; 25 Cent. Law J. 26 (1887). between the two fields of jurisdiction, and to define
* Philadelphia & Southern Steamship Co. v. Penn- and declare the instances of unconstitutional en-
sylvania, 122 U. S. 326, 346 (1887), Bradley, J. ; Brown croachment, ias judicial question often of much diffi-
u Maryland, 12 Wheat. 446 (1827), Marshall, C. J. culty, the solution of which, perhaps, is not to be
» Smiths. Alabama, 124 U. S. 465 (1888), Matthews, J. ; found in any single and exact rule of decision. Some
Bradley, J., dissenting. Act of Ala. 28 Feb., 1887.
•Waring V. Mayor of Mobile, 8 Wall. 110 (1868);
Woodruff V. Parham, ib. 123 (1868); Hinson v. Lett, ib. 1 County
148 (1868). Field, J. of Mobile v. Kimball, 102 U. S. 696-99 (1880),

' Willison 1). Blackbird Creek Marsh Co., 2 Pet. 245 ' Transportation Co. v. Parkersburg, 107 U. S. 701,
(1839;; Wheeling Bridge Case, 18 How. 421 (1865); Gil- 704 (1882), .Bradley, J. See generally Be Watson, 15
man V. Philadelphia, 3 Wall. 724 (1865); Escanaba, &q. F. R. 511, 514-31 (1882), eases ; Kaeiser v. Illinois Central
Transp. Co. v. Chicago, 107 U. S. 683, 687 (1882), cases. R. Co., 18 id. 153 (1888).
 201
COMMERCE COMMERCE

lines of discrimination, however, have heen drawn in Territory of the United States, or the District of Co-
the various decisions of the Supreme Court.' lumbia, orfrom any place in the United States to any
See further Bonus, 2(1); Immigration; Indian; In- adjacent foreign country, or from any place in the
spection, 1;LiKN, Maritime; Navigable; Police, 2; United States through a foreign country to any other
Privilege, 2; Prohibition, 2; Quarantine, 2; Regu- place in the United States, and also to the transporta-
late; Tax, 2; Tonnage; Warehouse; Wharfage. tion in like manner of property shipped from any
A statute of a State, intended to regulate, to tax, or place in the United States to a foreign country and
to impose any other restriction upon the transmission can-ied from such place to a port of trans-shipment,
of persons or property or telegraphic messages from or shipped from a foreign country to any place in the
one State to another, is not within that class of legis- United States and carried to such place from a port of
lation which the States may enact in the absence of entry either in the United States or an adjacent for-
legislation by Congress; and such statutes are void eign country: Provided, however. That the provisions,
even as to that part of such continuous conveyance as of this act shall not apply to the transportation of
is within the limits of the State." passengers or property, or to the receiving, deliver-
The case of The Wabash, <tc. B. Co. v. Illinois, de- ing, storage, or handling of property, wholly within
clared unconstitutional a statute of Illinois which one State, and not shipped to or from a foreign
enacted that if any railroad company within that State country from or to any State or Territory as afore-
said.
should charge or receive for transporting passengers
or freight of the same class, the same or a greater The term " railroad " as used in this act shall in-
sum for any distance, than it charged for a larger dis- clude all 'bridges and ferries used or operated in con-
tance, itshould be liable to a penalty for unjust dis- nection with any railroad, and also all the road in us4
crimination. The defendant company discriminated by any corporation operating a railroad, whether
against a shipper at Gilmaa and in favor of a shipper owned or operated under a contract, agreement, or
at Peoria, by charging more for the haul from Gil- lease; and the term "transportation" shall include
man although eighty-six miles nearer New Yorlc City, all instrumentalities of shipment or carriage.
the place of unloading. This decision was followed All charges made for any service rendered or to be
by the act of Congress of February 4, 1887, '• An act to rendered in the transportation of passengers or prop-
regulate commerce," known as the Inter-State erty as aforesaid, or in connection therewith, or for
Comiueroe Act (24 St. L. 379), which is here re- the receiving, delivering, storage, or handling of such
printed entire — property, shall be reasonable and just; and every
Section 1. The provisions of this act shall apply to unjust and unreasonable charge for such service is-
any common carrier or carriers engaged in the trans- prohibited and declared to be unlawful.
portation of passengers or property wholly by rail- Sec. 2. That if any common carrier subject to the
road, or partly by railroad and partly by water when provisions of this act shall, directly or indirectly, by
both are used, under a common control, management, any special rate, rebate, drawback, or other device,
or arrangement, for a continuous carriage or ship- charge, demand, collect, or receive from any person
ment, from one State or Territory of the United States, or persons a greater or less compensation for any
or the District of Columbia, to any other State or service rendered or to be rendered than it charges,
demands, collects, or receives from any other person
or persons for doing for him or them a like and con-
1 Smith II. Alabama, 124 U. S. 473 (1888), Matthews, J. temporaneous service in the transportation of a like
See Tests of Eegulation, 1 Harv. Law Eev. 159-84 kind of traflSc under substantially similar circum-
(1887), cases. stances and conditions, such common carrier shall be
2 Wabash, St. Louis & Pacific R. Co. v. Illinois, 118 deemed guilty of unjust discrimination, which is
V. S. 557, 660-77 (Oct. 25, 1886), cases, Miller, J. ; Field, hereby prohibited and declared to be unlawful.
Harlan, Woods, Matthews, and Blatchford, JJ., concur- Sec. 3. That it shall be unlawful for any common
ring; Waite, C. J., Bradley, and Gray, JJ., dissent- carrier subject to the provisions of this act to make or
ing, pp. 677-96, opinion by Bradley, J. give any undue or unreasonable preference or advan-
In the case of The Reading Railroad Co. v. Pennsyl- tage to any particular person, company, firm, corpo-
vania, commonly called the Case of the State Freight ration, or locality, or any particular description of
Tax, 16 Wall. 233 (1872), it was held that a tax upon traffic, in any respect whatsoever, or to subject any
freight taken up within a State and.carried out of it,
particular person, company, firm, corporation, or lo-
or taken up outside of the State and brought within it, cality, or any particular description of traffic, to any
is an unlawful burden on inter-State commerce. In imdue or unreasonable prejudice or disadvantage in.
Fargo V. Michigan, 121 U. S. 230 (April 4, 1887), it was any respect whatsoever.
held that a State statute which levies a tax upon the Every common carrier subject to the provisions of
gross receipts of railroads for the carriage of freight this act shall, according to their respective powers,
and passengers into, out of, or through the State, is afford all reasonable, proper, and equal facilities for
also unconstitutional. See Reading Railroad Case ex- the interchange of traffic between their respective
plained, lb. 240, Wabash Railway Case, ib. 247, and lines, and for the receiving, forwarding, and deliver-
other cases, ib. 242-46. The State may of course tax their sev-
ing of passengers and property to and from and shall
money after it has passed the stage of compensation eral lines and those connecting therewith,
for carrying persons or property, ib. 230. The Wabash not discriminate in their rates and charges between
Railway case ruled the case of The Commonwealth i). such connecting Imes; but this shall not be construed
Housatonic R. Co., 143 Mass. 266 (Jan. 7, 1887).
as requiring any such common carrier to give the use
 COMMERCE COMMERCE
303

of its tracks or terminal facilities to another carrier

engaged in like business. States, the through rate on which shall not have been
made public as required by this act, shall, before it is
Sec. 4. That it shall be unlawful for any common admitted into the United States from said foreign
carrier subject to the provisions of this act to charge
country, be subject to customs duties as if said freight
or receive any greater compensation in the aggregate were of forfeigh production; and any law in conflict
for the transportation of passengers or of like kind of with this section is hereby repealed.
property, under substantially similar circumstances No advance shall be made in the rates, fares, and
and conditions, for a shorter than for a, longer distance charges which have been established and published as
over the same line, in the sam.e direction, the shorter aforesaid by any common carrier in compliance with
being included within the longer distance; but this
the requirements of this section, except after ten days'
shall not be construed as authorizing any common public notice, which shall plainly state the changes
carrier within the terms of this act to charge and re- proposed to be made in the schedule then in force, and
<ieiv6 as great compensation for a shorter as for a the time when the increased rates, fares, or charges
lodger distance: Provided, however. That upon appli- : will go into effect; and the proposed changes shall be
cation to the commission appointed under the provis- '■shown by printing new schedules, or shall be plainly
ions of this act, such common carrier may, in special indicated upon the schedules in force at the time and
cases, after investigation by the commission, be au- kept for public inspection. Reductions in such pub-
thorized to charge less for longer than for shorter lished rates, fares, or charges may be made without
distances for the transportation of passengers or prop- previous public notice; but whenever any such reduc-
erty; and the commission may from time to time pre- tion is made, notice of the same shall immediately be
scribe the extent to which such designated common publicly postod and the changes made shall immedi-
carrier may be relieved from the operation of this ately be made public by printing new schedules, or
section of this act. shall immediately be plainly indicated upon the
See. 5. That it shall be unlawful for any common schedules at the tim© in force and kept for public in-
carrier subject to the provisions of this act to enter
into any contract, agreement, or combination with spection.
And when any such common carrier shkU have es-
^ny other common carrier or carriers for the pooling tablished and published its rates, fares, and charges
of freights of different and competing railroads, or to in compliance with the provisions of this section, it
divide between them the aggregate or net proceeds of shall be unlawful for such common carrier to charge,
the earniDgs of such railroads, or any portion thereof ; demand, collect, or receive from any person or per-
and in any case of an agreement for the pooling of' sons a greater or less compensation for the transpor-
freights as aforesaid, each day of its continuance shall tation of passengers or property, or for any services
be deemed a separate offense. in connection therewith, than is specified in such pub-
Sec. 6. That every common carrier subject to the lished schedule of rates, fares, and charges as may,at
provisions of this act shall print and keep for public the time be in force.
inspection schedules showing the rates and fares and Every common carrier subject to the provisions of
charges for the transportation of passengers and prop- this act shall file with the commission hereinafter pro-
,1 erty which any such common carrier has established vided for copies of its schedules of rates, fares, and
^nd which are in force at the time upon its railroad, charges which have been established and published in
as defined by the first section of this act. The sched- compliance with the requirements of this section, ,and
ules printed as aforesaid by any such common carrier shall promptly notify said commission of aU changes
shall plainly state the places upon its railroad be- made in the same. Every such common carrier shall
tween which property and passengers will be carried, also file with said commission copies of all contracts,
and shall contain the classification of freight in force agreements, or arrangements with other common car-
upon such railroad, and shall also state separately riers in relation to any traflc affected by the provis-
the terminal charges and any rules or regulations ions of this act to which it may be a party. And in
which in any wise change, affect, or determine any cases where passengers and freight pass over contin-
part or the aggregate of such aforesaid rates and fares uous lines or routes operated by more than one com-
and charges. Such schedules shall be plainly printed mon carrier, and the several common carriers operat-
in large type, of at least the size of ordinary pica, and ing such lines or routes establish joint tariffs of rates
copies for the use of the public shall be kept in every or fares or charges for such continuous lines or routes,
depot or station upon any such railroad, in such places copies of such joint tariffs shall also, in like manner,
and in such form that they can be conveniently in- be filed with said commission. Such joint rates, fares,
and charges on such continuous lines so filed as afore-
Any common carrier subject to the provisions of said shall be made public by such common carriers
this act receiving freight, in the United States to be when directed by said commission, in so far as may,
carried through a foreign country to any place in the in the judgment of "the commission, be deemed prac-
United States shall also in like manner print and keep ticable; and said commi^ion shall from time to time
for public inspection, at every depot where such prescribe the measure of publicity which shall be given
freight is received for shipment, schedules showing to such rates, fares, and charges, or to such part of
the through rates established and charged by such them as it may deem it practicable for such common
common carrier to all points in the United States be- carriers to publish, and the places in which they shall
yond the foreign country to which it accepts freight be published ; but no common carrier party to any
for shipment; and any freight shipped from the United such joint tariff shall be liable for the failure of any
States tiu-ough a foreign country into the United other common carrier party thereto to observe and
 COMMEECE COMMERCE

adhere to the rates, fares, or charges thus made damages for which such common carrier may
published. and be liable
under the provisions of this act, in any district
or cir-
If any such common earner shall neglect or refuse cuit court of the United States of competent jurisdic
-
to file or publish its schedules or tariffs of rates, fares, tion; but such person or persons shall not have the
and charges as provided in this section, or any part right to pursue both of said remedies, and must
of in
the same, such common carrier shall, in addition to each case elect which one of the two methods of
pro-
other penalties herein prescribed, be subject to a writ cedure herem provided for he or they will adopt. In
of mandamus, to be issued by any circuit court of the any such action brought for the recovery of damage
s
United States in the judicial district whei-ein the prin- the court before which the same shaU be pending
may
cipal ofBce of said common carrier is situated or compel any director, officer, receiver, trustee, or
wherein such offense may be committed, and if such agent of the corporation or company defendant in
. common carrier be a foreign corporation, in the ju- such suit to attend, appear, and testify in such case,
dicial circuit wherein such common carrier accepts and may compel the production of the books and pa-
traffic and has an agent to perform such service, to pers of such corporation or company party to any
compel compliance with the aforesaid provisions of such suit; the claim that any such testimony or evi-
this section; and such writ shall issue in the name of dence may tend to criminate the person giving Such
the people of the United States, at the relation of the evidence shall not excuse such witness from testifying,
commissioners appointed under the provisions of this but such evidence or testimony shall not be used
act; and failure to comply with its requii-ements shall ceeding
against. such person on the trial of any criminal pro-
be punishable as and for a contempt; and the said
commissioners, as complainants, may also apply, in Sec. 10. That any common carrier subject to the
any such circuit court of the United States, for a writ provisions of this act, or, whenever such common car-
of injunction against such common carrier, to restrain rier is a corporation, any director or officer thereof,
such common carrier from receiving or transporting or any receiver, trustee, lessee, agent, or person acting
property among the several States and Territories of for or employed by such corporation, who, alone or
the United States, or between the United States and with any other corporation, company, person, or
adjacent foreign countries, or between ports of trans- party, shall willfully do or cause to be done, or shall
shipment and of entry and the several States and Ter- willingly suffer or permit to be done, any act, matter,
ritories ofthe United States, as mentioned in the fii-st or thing in this act prohibited or declared to be unlaw-
section of this act, until such common carrier shall ful, or who shall aid or abet therein, or shall willfully
have complied with the aforesaid provisions of this omit or fail to do any act, matter, or thing in this act
section of this act. required to be done, or shall cause or willingly suffer
Sec. 7. That it shall be imlawful for any common or permit any act, matter, or thing so directed or re-
carrier subject to the provisions of this act to enter quired by this act to be done not to be so done, or shall
into any combination, contract, or agreement, ex- aid or abet any such omission or failm-e, or shall be
pressed or implied, to prevent, by change of time guilty of any infraction of this act, or shall aid or abet
schedule, carriage in different cars, or by other means therein, shall be deemed guilty of a misdemeanor, and
or devices, the carriage of freights from being contin- shall, upon conviction thereof in any district court of
uous from the place of shipment to the place of des- the United States within the jurisdiction of which such
tination; and no break of bulk, stoppage, or interrup- offense was committed, be subject to a fine of not to
tion made by such common carrier sliall prevent the exceed five thousand dollars for each offense.
carriage of freights from being and being treated as Sec. 11. That a commission is hereby created and
one continuous carriage from the place of shipment to established to be known as the Inter-State Commerce
the place of destination, unless such break, stoppage, Commission, which shall be composed of five commis-
or interruption was made in good faith for some nec- sioners, who shall be appointed by the President, by
essary purpose, and without any intent to avoid or and with the advice and consent of the Senate. The
unnecessarily interrupt such continuous carriage or commissioners first appointed under this act shall con-
to evade any of the provisions of tliis act. tinue in office for the term of two, three, f om% five, and
Sec. 8. That in case any common carrier subject six years, respectively, from the first day of January,
to the provisions of this act shall do, cause to be done, A. D. 1887, the term of each to be designated by the
or permit to be done any act, matter, or thing in this President; but their successors shall be appointed for
act prohibited or declared to be unlawful, or shall omit terms of six years, except that any person chosen to
to do any act, matter, or thing in this act required to be fill a vacancy shall be appointed only for the unex-
done, such common carrier shall be liable to the person pired term of the commissioner whom he shall suc-
or persons injured thereby for the full amount of dam- ceed. Any commissioner may be removed by the Presi-
ages sustained in consequence of any such violation dent for inefficiency, neglect of duty, or malfeasance
of the provisions of this act, together with a reason- in office. Not more than three of the commissioners
able counsel or attorney's fee, to be fixed by the court shall be appointed from the same political party. No
in every case of recovery, which attorney's fee shall person in the employ of or holding any official relation
be taxed and collected as part of the costs in the case. to any common carrier subject to the provisions of this
Sec. 9. That any person or persons claiming to be act, or owning stock or bonds thereof, or who is in
damaged by any common carrier subject to the pro- any manner pecuniarily interested therein, shall enter
visions of this act may either make complaint to the upon the duties of or hold such office. Said commis-
commission as hereinafter provided for, or may bring sioners shall not engage in any other business, voca-
suit in his or their own behalf for the recovery of the tion, or employment. No vacancy in the commission
 COMMERCE 204 COMMERCE

shall impair the right of the remaining commissioners No complaint shall at any time be dismissed be-
to exercise all the powers of the commission. cause of the absence of direct damage to the com-
Sec. IS. That the commission hereby created shall
have authority to inquire into the management of the Sec. 14. That whenever an investigation plainant. I "" shall ,be
business of all common carriers subject to the, pro- made by said commission, it shall be its duty to make
visions ofthis act, and shall keep itself informed as to a report in writing in respect thereto, which shall in-
the manner and method in which the same is con- clude the findings of fact upon which the conclusions
ducted, and shall have the right to obtain from such of the commission are based, together with its recom-
common carriers full and complete information nec- mendation as to what reparation, if any, should be
essary to enable the commission to perform the duties made by the common carrier to any party or parties
and carry out the objects for which it was created; who may be found to have been injured; and such
and for the purposes of this act the commission findings so made shall thereafter, in all judicial pro-
shall have power to require the attendance and testi- ceedings, be deemed prima facie evidence as to each
mony of witnesses and the production of all books, and every fact found.
papers, tariffs, contracts, agreements, and documents All reports of investigations made by the commis-
relating to any matter under investigation, and to that sion shall be entered of record, and a copy thereof
end may invoke the aid of any court of the United shall be furnished to the party who may have com-
States in requiring the attendance and testimony of plained, and to any common carrier that may have
witnesses and the production of books, papers, and been complained of.
documents under the provisions of this section. Sec. 15. That if in any case in which an investiga-
And any of the circuit courts of the United States tion shall be made by said commission it shall be
within the jurisdiction of which such inquiry is carried made to appear to the satisfaction of the commission,,
on may, in case of contumacy or refusal to obey a either by the testimony of witnesses or other evidence,
subpoena issued to any common carrier subject to the that anything has been done or omitted to be doneim
provisions of this act, or other person, issue an order violation of the provisions of this act, or of any law
requiring such common carrier or other person to ap- cognizable by said commission, by any common car-
pear before said commission (and produce books and rier, or that any injury or damage has been sustained
papers if so ordered) and give evidence touching the by the party or parties complaining, or by other par-
matter in question ; and any failure to obey such or- ties aggrieved in consequence of any such violation, it
der of the court may be punished by such court as a shall be the duty of the commission to forthwith cause
contempt thereof. The claim that any such testimony a copy of its report in respect thereto to be delivered to-
may tend to criminate the person giving such evidence such common carrier, together with a notice to said
shall not excuse such witness from testifying; but common carrier to cease and desist from such viola-
such evidence or testimony shall not be used against tion, or to make reparation for the injury so found to-
such person on the trial of any criminal proceeding. have been done, or both, within a reasonable time, to
Sec. 13. That any person, firm, corporation, or be specified by the commission; and if, within the-
association, or any mercantile, agricultural , or manu- time specified, it shall be made to appear to the com-
facturing society, or any body politic, or municipal mission that such common carrier has ceased from
organization complaining of anything done or omit- such violation of law, and has made reparation for the
ted to be done by any common carrier subject to the injury found to have been done, in compliance with
provisions of this act in contravention of the provis- the report and notice of the commission, or to the
ions thereof, may apply to said commission by peti- satisfaction of the party complaining, a statement to
tion, which shall briefly state the facts; whereupon a that effect shall be entered of record by the commis-
statement of the charges thus made shall be for- sion, and the said common carrier shall thereupon be
warded by the commission to such common carrier, relieved from further liability or penalty for such
who shall be called upon to satisfy the complaint or particular violation of law.
to answer the same in writing within a reasonable Sec. 16. That whenever any common carrier, as
time, to be specified by the commission. If such com- defined in and subject to the provisions of this act,
mon carrier, within tiie time specified, shall make rep- shall violate or refuse or neglect to obey any lawful
aration for the injury alleged to have been done, said order or requirement of the commission in this act
carrier shall be relieved of liability to the complain- named, it shall be the duty of the commission, and
ant only for the particular violation of law thus lawful for any company or person interested in such
complained of. If such carrier shall not satisfy the order or requirement, to apply, in a summaiy way, by
complaint within the time specified, or there shall ap- petition, to the circuit court- of the United States sit-
pear to be any reasonable ground for investigating ting in equity in the judicial district in which the com-
said complaint, it shall be the duty of the commission mon carrier complained of has its principal office, or
to investigate the matters complained of in such man- in which the violation or disobedience of such order
ner and by such means as it shall deem proper. or requirement shall happen, alleging such violation
Said commission shall in like manner investigate or disobedience, as the case may be ; and the said court
any complaint forwarded by the railroad commissioner shall have power to hear and determine the matter,,
or railroad commission of any State or Territory, at on such short notice to the common carrier com-
the request of such commissioner or commission, and plained of as the court shall deem reasonable; and.
may institute any inquiry on its own motion in the such notice may be served on such common carrier,
same manner and to the same effect as though com- his or its officers, agents, or servants, in such manner
plaint had been made. as the court shall direct; and said court shall proceed
 COMMERCE 305 COMMERCE

to hear and determine the matter speedily as a court cepting its penal provisions, the circuit courts of the
of equity, and without the formal pleadings and pro- United States shall be deemed to be always in session.
ceedings applicable to ordinary suits in equity, but in Sec 17. That the commission may conduct its pro-
such manner as to do justice in the premises; and to ceedings insuch manner as will best conduce to the
this end such court shall have power, it it think fit, to proper dispatch of business and to the ends of justice.
■direct and prosecute, in such mode and by such per- A majority of the commission shall constitute a quo-
sons as it may appoint, all such inquiries as the court rum for the transaction of business, but no commis-
may think needful to enable it to form a just judg- sioner shall participate in any hearing or proceeding
ment in the matter of such petition; and on such hear- in which he has any pecuniary interest. Said com-
ing the report of said commission shall be prima facie mission may, from time to time, make or amend such
evidence of the matters therein stated; and if it be general rules or orders as may be requisite for the
made to appear to such court, on such hearing or on order and regulation of proceedings before it, includ-
report of any such person or persons, that the lawful ing forms of notices and the service thereof, which
order or requirement of said commission drawn in shall conform, as nearly as may be, to those in use in
question has been violated or disobeyed, it shall be the courts of the United States. Any party may ap-
lawful for such court to issue a writ of injunction or pear before said commission and be heard, in person
other proper process, mandatory or otherwise, to re- or by attorney. Every vote and official act of the
strain such common carrier from further continuing commission shall be entered of record, and its pro-
such violation or disobedience of such order or require- ceedings shall be public upon the request of either
ment of said commission, and enjoining obedience to party interested. Said commission shall have an offi-
tlie same; and in case of any disobedience of any such cial seal, which shall be judicially noticed. Either of
writ of injunction or other proper process, mandatory the members of the commission may administer oaths
or otherwise, it shall be lawful for such court to issue and affirmations.
■writs of attachment, or any other process of said Sec. 18. That each commissioner shall receive an
court incident or applicable to writs of injunction or annual salary of seven thousand five himdred dollars,
other proper process, mandatory or otherwise, against payable in the same manner as the salaries of judges
such common carrier, and if a corporation, against of the courts of the United States. The commission
one or more of the directors, officers, or agents of the shall appoint a secretary, who shall receive an annual
same, or against any owner, lessee, trustee, receiver, salary of three thousand five himdred dollars, payable
■or other person failing to obey such writ of injunction in like manner. The commission shall have authority
■or other proper process, mandatory or otherwise; and to employ and fix the compensation of such other em-
said court may, if it shall think fit, make an order ployees as it may find necessary to the proper per-
directing such common carrier or other person so dis- formance of its duties, subject to the approval of the
obeying such writ of injunction or other proper secretary of the interior.
process, mandatory or otherwise, to pay such sum of The commission shall be furnished by the secretary
money not exceeding for each carrier or person in de- of the interior with suitable offices and all necessary
fault the sum of five hundred dollars for every day office supplies. Witnesses summoned before the com-
after a day to be named in the order that such carrier mission shall be paid the same fees and mileage that
or other person shall fail to obey such injunction or are paid witnesses in the courts of the United States.
other proper process, mandatory or otherwise; and All of the expenses of the commission, including all
such moneys shall be payable as the court shall direct, necessary expenses for transpoi-tation incurred by the
either to the party complaining, or into court to abide commissioners, or by their employees under their or-
the ultimate decision of the court, or into the treas- ders, in making any investigation in any other places
ury; and payment thereof may, without prejudice to than in the city of Washington, shall be allowed and
-any other mode of recoverin|: the same, be enforced paid, on the presentation of itemized vouchers there-
•by attachment or order in the nature of a writ of exe- for approved by the chairman of the commission and
■cution, in like manner as if the same had been recov- the secretary of the interior.
ered by a final decree in peraanam in such court. Sec. 19. That the principal office of the commission
When the subject in dispute shall be of the value of shall be in the city of Washington, where its general
two thousand dollars or more, either party to such sessions shall be held; but whenever the convenience
proceeding before said coiul; may appeal to the Su- of the public or of the parties may be promoted or
preme Coiul; of the United States, under the same delay or expense prevented thereby, the commission
regulations now provided by law in respect of security may hold special sessions in any part of the United
for such appeal; but such appeal shall not operate to States. It may, by one or more of the commissioners,
stay or supersede the order of the court or the execu- prosecute any inquiry necessary to its duties, in any
tion of any writ or process thereon; and such court part of the United States, into any matter or question
may, in every such matter, order the payment of such of fact pertaining to the business of any common
costs and coimsel fees as shall be deemed reasonable. carrier subject to the provisions of this act.
Whenever any such petition shall be filed or presented Sec. 80. That the commission is hereby authorized
by the commission it shall be the duty of the district to require annual reports from all common carriers
attorney, under the direction of the attorney-general subject to the provisions of this act, to fix the time and
of the United States, to prosecute the same; and the prescribe the manner in which such reports shall be
costs and expenses of such prosecution shall be paid made, and to require from such carriers specific an-
■out of the appropriation for the expenses of the courts swers to all questions upon which the commission may
of the United States. For the purposes of this act, ex- need information. Such annual reports shall show in
 COMMERCE 206 COMMERCE

etail the amount of capital stock issued, tile amounts eighteen of this act, relating to the appointment and
aid therefor, and the manner of payment for the organization of the commission herein provided for,
ame; the dividends paid, the surplus fund, if any, and
shall take effect immediately, and the remaining pro-
le munher of stockholders; the funded and floating visions of this act shall take effect sixty days after its
ebts and the interest paid thereon; the cost and value
passage. See Addenda. A. //J/'
f the carrier's property, franchises, and equipment;
18 number of employees and the salaries paid each March 22, 1887, President Cleveland appointed the
lass; the amounts expended for improvements each following commissioners: Thomas M. Cooley, of Mich-
ear, how expended, and the character of such im- igan, for the term of six years; 'William E. Morrison,
rovements; the earnings and receipts from each of Illinois, for the term of five years ; Augustus Schoon-
ranch of business and from all sources; the operat- maker, of New York, for the term of four years;
ig and other expenses; the balances of profit and Aldace F. Walker, of Vermont, for the term of three
>ss; and a complete exhibit of the financial opera- years; Walter L. Bragg, of Alabama, for the term of
Ions of the carrier each year, including an annual two years. At the first meeting of the commission,
alance-sheet. Such reports shall also contain such March 31, Mr. Cooley was chosen chairman.*
iformation in relation to rates or regulations con- April 4, 1887, in the circuit court of Oregon, in a case
erning fares or freights, or agreements, arrange- concerning the transportation of goods by the Oregon
lents, or contracts with other common carriers, as and California Railroad (which lies wholly within
tie commission may require; and the said commission Oregon), destined for San Francisco, Judge Deady,
lay, within its discretion, for the purpose of enabling after explaining tha^ the act "does not include or
; the better to carry out the purposes of this act, pre- apply to all carriers'engaged in inter-State commerce,
cribe (if in the opinion of the commission it is practi- but only to such as use a railway or railway and
able to prescribe such uniformity and methods of water-craft under common control or management
Beping accounts) a period of time within which all for a continuous carriage or shipment of property
ommon carriers subject to the provisions of this act from one State to another," held that it does not
tiall have, as near as may be, a uniform system of ac- "apply to the carriage of property by rail wholly
ounts, and the manner in which such accounts shall within the State, although shipped from one destined
e kept. to a place without the State, so that such place is not
Sec. 31. That the commission shall, on or before the in a foreign countiy." '
rst day of December in each year, make a report to
June 15, 1887, the commission summarized its con-
le secretary of the interior, which shall bp by him clusions upon the construction to be placed upon the
ransmitted to Congress, and copies of which shall be fourth section of the act, in the following language:
istributed as are the other reports issued from the First. That the prohibition against a greater
iterior department. This report shall contain such charge for a shorter than for a longer distance over
iformation and data collected by the commission as the same line, in the same direction, the shorter being
lay be considered of value in the determination of included within the longer distance, as qualified
uestions connected with the regulation of commerce, therein is limited to cases in which the circumstances
>gether with such recommendations as to additional and conditions are substantially similar.
sgislation relating thereto as the commission may
eem necessaiy. Second. That the phrase "under substantially
similar circumstances and conditions " in the fom-th
Sec. 28. That nothing in this act shall apply to the section, is used in the same sense as in the second sec-
a-rriage, storage, or handling of property free or at re- tion; and under the qualified form of the prohibition
uced rates for the United States, State, or municipal in the fourth section carriers are required to judge in
ovemments, or for charitable purposes, or to or from the first instance with regard to the similarity or dis-
lirs and expositions for exhibition thereat, or the issu- similarity ofthe circumstances and conditions that
Qce of mUeage, excursion, or commutation passenger forbid or permit a greater charge for a shorter dis-
ckets; nothing in this act shall be construed to pro- tance.
ibit any common carrier from giving reduced rates to Third. That the judgment of carriers in respect to
linisters of religion; nothing in this act shall be con- the circumstances and conditions is hot final, but is
rued to prevent railroads from giving free carriage subject to the authority of the commission and of the
> their own oflicers and employees, or to prevent the courts, to decide whether error has been committed,
rincipal officers of any railroad company or com- or whether the statute has been violated. And iu case
Einies from exchanging passes or tickets with other of complaint for violating the fourth section of the
lilroad companies for their officers and employees; act the burden of proof is on the carrier to justify any
id nothing in this act contained shall in any way departure from the general rule prescribed by the
iridge or alter the remedies now existing at com- statute by showing that the circumstances and condi-
on law or by statute, but the provisions of this act tions are substantially dissimilar.
■e in addition to such remedies: Provided^ That Fourth. That the provisions of section one, requir-
> pending litigation shall in any way be affected by ing charges to be reasonable and just, and of section
is act.
two, forbiddmg unjust discrimination, apply when
Sec. 23. That the sum of one hundred thousand
)llars is hereby appropriated for the use and pur- 1 The first and the present secretary of the commis-
)ses of this act for the fiscal year ending June 30, sion isEdward A. Moseley ; and the present auditor is
, D. 1888, and the intervening time anterior thereto. C. C. McCain.
Sec. Si. That the provisions of sections eleven and 2 Exp. Koehler, 1 1. C. R. 28; 30 F. E. 867.
 207
COMMERCE COMMERCE

exceptional charges are made under section four as The act does not embrace carriers wholly by water,
they do in other cases. " ' ■though they may also be engaged in the like commerce
Fifth. That the existence of actual competition and as such be rivals of the carriers which the act
which is of oontroUing force, in respect to trafflo im- undertakes to control. Perhaps the most influential
portant in amount, may make out the dissimilar cir- reasons for omitting them were that the evils of cor-
cumstances and conditions entitling the carrier to porate management have not been so obvious in their
charge less for the longer than for the shorter haul case as in that of carriers by land, and their rates of
over the same line in the same direction, the shorter transportation were so low that they were seldom com-
being included in the longer in the following oases: plained of even when unjustly discriminating. The
1. When the competition is with carriers by water fact that in their competition with carriers by land
which are not subject to the provisions of the statute. they were at a disadvantage had some influence in
2. "When the competition is with foreign or other propitiating public favor, inasmuch as they appeared
railroads which are not subject to the provisions of to operate as obstacles to monopoly and as checks
the statute. upon extortion.'
8. In rare and peculiar cases of competition between May 25, 1887, the following rules of practice were
railroads which are subject to the statute, when a adopted by the commission (Report for 1887, p. 127):—
strict application of the general rule of the statute I. When at Washington the commission will hold
would be destructive of legitimate competition. its general sessions at 11 o'clock A. M. daily, except
Sixth. The commission further decides that when Saturdays and Sundays, for the reception and hearing
a greater charge in the aggregate is made for the of petitions and complaints, and the transaction of
transportation of passengers or the like kind of prop- such other business as may be brought before it. The
erty for a shorter than for a lOTiger distance over the sessions will be held at the office of the commission in
same line in the same direction, the shorter being in- the Sun Building, No. 1315 F Street northwest. When
cluded inthe longer distance, it is not sufficient justi- special sessions are held at other places such regula-
fication therefor that the traffic which is subjected to tions as may be' necessary will be made by the com-
mission.
such greater charge is way or local traffic, and that
which is given the more favorable rates is not. II. Applications >mder the fourth section of the act
Nor is it sufficient justification for such greater for authority to charge less for longer than for shorter
charge that the short-haul traffic is more expensive to distances for the transportation of passengers or prop-
the carrier, unless when the circumstances are such erty must be made by petition addressed to the com-
as to make it exceptionally expensive, or the long- mission by the carrier or carriers desiring the relief.
haul traffic exceptionally inexpensive, the difference The petition must state with particularity the extent
being extraordinary and susceptible of definite proof. of the relief desired and the points at and between
Nor that the lesser charge on the longer haul has which authority is asked to charge less for longer dis-
for its motive the encouragement of manufactures tances; the reasons for the relief sought must also be
or some other branch of industry. set forth, and the facts upon which the application is
Nor that it is designed to build up business or trade founded. The petition must be verified by some officer
centres. or agent of the carrier in whose behalf it is presented,
Nor that the lesser charge on the longer haul is to the effect that the allegations of the petition are
true to the knowledge or belief of the affiant. Notice
merely a continuation of the favorable rates under
which trtide centres or industrial establishments have must be published by a petitioner in not less than two
been built up. newspapers along the line of the road having general
The fact that long-haul traffic will only bear certain circulation, for at least ten days prior to the presenta-
rates is no reason for carrying it for less than cost at tion of a petition, stating briefly the nature of the re-
lief intended to be applied for and the time when the
the expense of other traJBc'
application will be presented, and proof of each pub-
Where the conditions are dissunilar there is no pro- lication must be flled with the petition.
hibition; adoubt should be Solved in favor of the in. Upon the presentation of a petition for relief an
object of the law." investigation will be made by the commission at a
Railroads doing an express business are within the time and place to be designated, when testimony will
act; independent express companies are not." be received for and against the prayer of the petition.
A road wholly within a State, but used as a means After investigation the commission will make such
of conducting inter-State traffic by companies ownmg order as may appear to be just and appropriate upon
connecting inter-State roads, is subject to the provis- the facts and circumstances of the case.
ions of the act.*
rV. Complaints under section 13 of the act of any-
thing done or omitted to be done by any common
1 Report, 1887, pp. 64, 84-85. Seei6. 18-30. Repeti-
carrier subject to the provisions of the act, in contra-
tion of Louisville & Nashville R. Co., and others. vention of the provisions thereof, must be made by
a Missouri Pacific E. Co. v. Texas & Pacific E. Co., 31
F R. 862 (June 21, 1887), Pardee, J. petition, which must briefly state the facts which
are claimed to constitute a violation of the act, and
'Be Express Companies, 1 I. C. E. 677-83 (Dec. 28, must be verified by the petitioner, or by some officer
As
1887), Walker, C. See also Report, 1887, pp. 12-14. or agent of the corporation, society, or other body or
to sleeping and parlor car companies, and transporters that
of mineral oil, see ib. 15. organization makmg the complaint, to the effect
* Heck V. East Tennessee, &c. E. Cos. (Feb. 17, 1888). 1 Report of 1877, pp. 11-12.
 COMMERCK 208 COMMERCE

the allegations of the petition are true to the knowl- In cases of failure to answer, the commission will
■edge or belief of the affiant. take such proof of the charge as may be deemed rea-
The complainant must furnish as many written or sonable and proper, and make such order thereon as
printed copies of the complaint or petition as there the circumstances of the .case appear to require.
may be parties complained against to be served. When IX. Subpoenas requiring the attendance of wit-
^ complaint is made the name of the carrier com- nesses will be issued by any member of the commis-
plained against must be set forth in full, and the ad- sion in all cases and proceedings before it, and wit-
dress of the petitioner and the name and address of nesses will be required to obey the subpoenas served
his attorney or coimsel, if any, must be indorsed upon upon them requiring their attendance or the produc-
the complaint. tion of any books, papers, tariffs, contracts, agree-
The commission will cause a copy of the complaint ments, or documents relating to any matter under
to be served upon each common carrier complained investigation or pending before the comnaission.
Against, by mail or personally, in its discretion, with Upon application to the commission authority may
notice to the can*ier or carriers to satisfy the com- be given, in the discretion of the commission, to any
plaint or to answer the same in writing within the party to take the.deposition of any witnesses who may
time specified. be shown, for some sufficient reason, to be imable to
V. A carrier complained against must answer the attend in person.
complaint made within twenty days from the date of June 15, 1887, this rule was modified to the extent
the notice, unless the commission shall in particular that where a cause is at issue on petition and answer,
■castes prescribe a shorter time for the answer to be each party may proceed at once to take depositions of
served, and in such cases the answer must be made witnesses in the manner provided by sections 863 and
within the time prescribed. The original answer must 864 of the Revised Statutes of the United States, and
be filed with the commission, at its office in Washing- transmit them to the secretary of the commission,
ton, and «. copy thereof must at the same time be without making any application to, or obtaining any
served upon the complainant by iAie party answering, authority from, the commission for that purpose.
personally or by mail. The answer must admit or X. Upon application by any petitioner or party
deny the material allegations of fact contained in the amendments may be allowed by the commission, in its
complaint, and may set forth any additional facts discretion, to any petition, answer, or other pleading
claimed to be material to the issue. The answer must in any proceeding before the commission.
be verified in the same manner as the complaint. If XI. Copies of any petition, complaint, or answer, in
a carrier complained against shall make satisfaction any matter or proceeding before the commission, or
before answering, a written acknowledgment of satis- of any order, decision, or opinion by the commission,
faction must be filed with the commission, and in that will be furnished upon application by any person or
case the fact of satisfaction without other matter may carrier desiring the same, upon payment of the ex-
be set forth in the answer filed and^ served on the com- pense thereof.
plainant. Ifsatisfaction be made after the filing and XII. Affidavits to a petition, complaint, or answer
service of an answer, a supplemental answer setting may be taken before any officer of the United States,
forth the fact of satisfaction may be filed and served. or of any State or Territory, authorizetl to administer
VI. If a carrier complained against shall deem the oaths.
complaint insufficient to show a breach of legal duty,
it may, instead of filing an answer, serve on the com- The history of the development of the railroad sys-
plainant notice for a hearing of the case on the com- tem of the United States, with relation to inter-State
plaint, and in case of the service of such notice, the commerce and to the corporate abuses which led to the
facts stated in the complaint will be taken as> ad- passage of the foregoing act of 1887, may be summar-
m,itted. The filing of an answer will not be deemed ized as follows : —
an admission of the sufficiency of the complaint, but When the grant of the power to regulate commerce
a motion to dismiss for insufficiency may be made at was made, the commerce between the States was in-
the hearing.
significant — carried on by coastwise vessels and'other
VII. Adjournments and extensions of time may be water-ci'aft, sailed or rowed, within the interior. The
granted upon the application of parties in the discre- inter-State commerce on land was little, and its regu-
tion of the commission. lation was by the common law. To a few associations
VIII. Upon issue being joined by the service of an- of regular carriers of passengers on definite routes
swer, the commission;" upon request of either party, exclusive rights were granted,- in the belief that other-
will assign a time and place for hearing the same, wise the regular transportation would not be ade-
which will be at its offlce in Washington, unless other- quately provided for.
wise ordered. Witnesses will be examined orally be- For regulation of commerce on the ocean and other
fore the commission, except in cases when special navigable waters Congress passed the necessary laws;
ordera are made for the taking of testimony other- but not until 1824 (in the case of Gibbons v. Ogden)
wise. The petitiouer or complainant must in all cases was it settled that such waters of a State as constitute
prove the existence of the facts alleged to constitute a highway for inter-State commerce are subject to
a violation of the act, unless the carrier complained Federal legislation equally with the high seas. But
of shall admit the same, or shall fail to answer the Congress still abstained from regulating commerce by
complaint. Facts alleged in the answer must also be land — leaving even the Cumberland road, a national
proved by the carrier, unless admitted by the peti- highway, to the supervision of the States through
tioner on the hearing. which it should be built.
 209
COMMERCE COMMISSION

When the application of steam to vessels as a mo- roads, were kept oppressively high; they were also
tive power so stimulated internal commerce as to ne- changed at pleasure, and without notice. Secret deal-
cessitate improved highways, these, both turnpikes ings made the public unable to judge of the reason-
and canals, were State creations, the General govern- ableness of charges. Such publications of tariffs as
ment merely making some appropriations for canals. were made were so complicated as not to be intel-
It was natural that the States should control these ligible tothe uninitiated, and rather tended to increase
highways, so long as there was no discrimination the difficulties.
against the citizens of other States. When, in 1880, Still another evil was the strengthening of a class
steam power was applied to land vehicles, the same mony. between those whose interests demanded har-
feeling
reasons for State control prevailed.
For a long time Federal regulation of inter-State The manipulation of capital stocks for the benefit
commerce was purely negative, merely restraining of managers and to the destruction of the interest of
excessive State power, through the judicial depart- the owners resulted in great wrong, directly to indi-
ment, in isolated cases. Thus, the corporations mo- viduals and indirectly to the public. The large fort-
nopolizing commerce made the law for themselves — unes amassed in a short time by some officials created
State power and common law being inadequate to in the public mind suspicion and an unfair prejudice
complete regulation and National powernot yet being against railroad management in general, which de-
put forth. The circumstances of railroad develop- veloped into an unfortunate breach between the public
ment tended to make this indirect and abnormal law- and all railroad corporations.
making unequal and oftentimes oppressive. Later, In short, the manifest misuse of corporate powers
when the promoters of railroads were viewed as pub- created an irresistible demand for " National legisla-
lic benefactors, laws were passed, ujider popular tion, and this very naturally, because the private gains
clamor, allowing municipalities to use public money resulting from corporate abuse were supposed to
and public credit in aid of roads. So much money spring, to some extent at least, from excessive bur-
thus lent (to irresponsible parties) was lost, that con- dens imposed upon that commerce which the nation
stitutional amendments were adopted prohibiting such
ought to regulate and protect." In response to this
use of the public money or credit. demand the act of 1887 laj^s down rules to be observed
The inadequate business of many roads led to de- by the carriers to which its provisions apply, which
structive competition, to the undue favoring of large are intended to be rules of equity and equality, and
dealers, and secret arrangements in the form of spe- "to restore the management of the transportation
cial rates, rebates, and drawbacks, underbilling. re- business of the country to public confidence." '
duced classification, or whatever else! might i)e best COMMISSION.^ Doing, performing;
adapted to keep the transaction from a public not de- execution.
ceived but practically helpless through dependence.
Intelligent shippers, even the favored ones, realized
1. An undertaking, without recompense,
that any reasonable, non-discriminating, permanent to do a thing for another person ; a gratui-
schedule of rates was preferable to one so fluctuating tous bailment, q. v.
and untrustworthy as to make business contracts vir- 2. (1) Formal written authority from a
tually lottery ventures.
Special terms were often made with large shippers court to do something pertaining to the ad-
to increase the volume of business, in order either to ministration ofjustice : as, a commission to
attract purchasers of stock, Justify some demand for ascertain whether one is a bankrupt, or a lu-
an extension of line or other large expenditure, or to natic; a commission to take depositions or
assist in making terras in a consolidation or strengthen testimony, qq. v.
the demand for a larger share in a pool.
Whatever the motive, the allowance of a special rate A writ or process issued, under seal, by the
or rebate was not only unjust, wronging and often ruin- special order of a court. ^
ing the small dealer, but it was also demoralizing,— (3) Formal authority from a government
sufferers, doubtful of obtaining redress in the courts,
becoming parties to the evil by seeking similar favors. J See Report of Commission, 1887, pp. 3-10.
The discriminations applied to places not less than That report presents the views of the board upon
to persons, often resulting, through necessities arti- the following general subjects: The carriers subject
ficially created, in charging more for a short than for to its jurisdiction, pp. 11-15; the long and short haul
a long haul on the same line in the same direction, so clause of the act, 16-23; the filing and publication of
that towns with superior natural advantages withered tariffs, 33-34; general supervision of the carriers sub-
away under the mischievous influence. ject to the act, 2-1-27; proceedings before the commis-
Not less conspicuous were the evils of the free trans- sion, 27-88; expense of hearings, 28-39; annual reports
portation ofpersons, causing the corruption of some from carriers, 39-80; classification of passengers and
public officials and subjecting others to unjust and freight, 30-32; voluntary association of railroad man-
cruel suspicion, all leading to a deterioration of the agers, 33-36; reasonable charges, 36-41 ; general obser-
moral sense of the community. Bailroads themselves vations, 41^2; amendments of the law, 42^8, 14-16.
were in cases the sufferers, the demand for passage "L. commiWcre, to place with, intrust to: con, with;
often partaking of the nature of blackmail. mittere, to send.
In addition to these evils, rates, through the absence 3 [Tracy v. Suydam, 30 Barb. 115 (1869); Boal v. King,
of competiUon or the consolidation of competing 6 Ham., Ohio, 13 (1833), cases.
(14)
 COMMISSION 210 COMMIT

for the doing of something belonging to the County commissioners. See County.
exercise of its powers. 3. Compensation for services rendered.
Imports, ex vi termini^ written authority from a The plural, commissions, is often used.
competent source.? Compare Waeeant, S.
(3) The body or board of persons intrusted A percentage on price or value.!
A sum allowed as compensation to a serv-
with the performance of some public service
ant, factor, or agent, who manages the aflfairs
or duty: as, to revise statutes, codify laws,
of another, in recompense for his services.^
fix the boundary lines between States, en- "Commission" generally signifies a percentage
force the inter-State commerce act. upon the amount of money involved in the transac-
The instrument evidences the fact of the appoint- tion, as distinguished from "discount," which is a per-
ment, q. v., and the nature and extent of the powers centage taken from the face value of the secinnty or
confeiTed.'
property negotiated.^
A reasonable commission is allowed to administrar
Commissioner. Such person as has a
commission, letters-patent, or other lawful tors, assignees, auctioneers, brokers, executors, re-
ceivers, and other agents or trustees, qq. v. But the
authority, to examine any matter or to exe- service must be completed, and due care and skill and
cute any public office. ^ perfect fidelity have been employed. The amoimt is
An officer of a court, appointed to assist it a reasonable percentage upon the sum received or
In administering justice in a particular case paid out, and is regulated by custom, or by the dis-
cretion of the appointing authority.
or cases. Compare Master, 4.
. The supreme court of California appoints, and may Commission merchant. A factor, g. v.
at any time remove, three persons of legal learning COMMIT. To intrust to; to confide in.
and personal worth to assist the court in the perform- 1. To delegate a duty to a person or per-
ance of its duties, and in-the disposition of the unde- sons. See Commission ; Committee.
termined causes now pending. Each commissioner
holds office for the term of four years, and during 3. To send to a place of confinement a per-
that period may not engage in the practice of the son found to be a lunatic.
law. The court appoints one as chief commissioner.* May contemplate a sending without an adjudica-
Whence C, and C. C. tion by a court or a magistrate.* See Lunacy.
An officer who assists in the administration 3. To send to prison a person, charged with
of government, being usually charged with or convicted of a crime.
administering the laws relating to some one Commitment. The act of sending an
department thereof : as, the commissioner of accused or convicted person to prison ; also,
agriculture, of a circuit court, of a county, the warrant by virtue of which the incarcer-
of deeds, of education, of fisheries, of the ation is made.
general land-office, of highways, of Indian " To commit " was regarded as the separate and
distinct act of carrying a party to prison, after having
affairs, of internal revenue, of patents, of taken him into custody by force of a warrant of com-
pensions. 5 See Ministeeial.
Commissiotier of bail. An officer author- mitment.*
Commitment, Warrant of. Written au-
ized to take bail for hearings or trials before thority to commit a person to prison or cus-
a court and jury, in cases admitting of re- tody, until a, further hearing in the matter
lease from confinement when the accused as to which he is charged can be had, or
can furnish bail. until he is discharged by due course of law ;
Commissioner of the circuit courts. See a mittimus; a committitur.
under COURTS, United States. Committing. Authorized to hear charges
'Commissioner of deeds. An officer au- of crime, and to discharge or take bail fpr
thorized to take acknowledgments and depo- trial before a jury.
sitions, and to probate accounts. Committing magistrate. Any (inferior)
officer empowered to hear charges of crime
> United States v. Beyburn, 6 Pe't. *364 (1832).
» Marbury v. Madison, 1 Cranch, 155 (1803); Lessee of and to commit the accused to prison or accept
Talbot V. Simpson, 1 Pet. C. C. 94 (1815); United States bail for their appearance before a higher
V. Vinton, 2 Sumn. 307 (1830).
' [Jacob's Law Diet. ; 14 N. J. L. 438. ' Brennan v. Perry, 7 Phila. 213 (
•Cal. Statutes, 1885, p. 161. Similar provision was 2 [Ralston v. Kohl, 30 Ohio St. 98 (1876), Scott, J.
made in Kansas in 1887, — Laws, c. 148; and on March 5, ' Swift V. United States, 18 Ct. CI. 57 (1883).
three commissioners were appointed by the governor, * Cummington «.■ Wareham, 9 Cush. 685 (1852).
with the consent of the senate, — 36 Kan. R. iii. ' [French v. Bancroft, 1 Met. 504 (1840), Shaw, C. J.
' See Index, Revised Statutes. See also 113 Mass. 62; 138 id. 400.
 COMMITTEE 211 COMMODUM

court ; as, a justice of the peace, some alder- COMMODITT.i Convenience, privilege,
men, mayors, and commissioners of bail. profit, gain; popularly, goods, wares, mer-
If the offense is not bailable, or the party cannot chandise.
find bail, he is to be committed to the county gaol by Within the meaning of the constitution of Massa-
the mittimits of the justice, or warrant under his hand chusetts "commodities" embraces everything which
and seal, containing the cause of his commitment; may be the subject of taxation,— including the privi-
there to abide till delivered by due course of law.^
lege of using a particular branch of business or em-
Commitment for crime being only for safe-keeping, ployment: as, the business of an auctioneer, of an
when bail will answer the purpose it is generally taken.
attorney, of a tavern-keeper, of a retailer of liquors.''
The warrant is in the name of the State; is under the '* Commodity " is a general term, and includes the
hand and seal of the magistrate; shows his authority, privilege and convenience of transacting a particular
and the time and place of issue; describes the prisoner business.' See Monopoly; Staple.
by name ; specifies the place of confinement, and is
directed to the keeper thereof; states that the party
COMMODUM. L. Convenience, bene-
fit, advantage.
has been charged on oath with a particular offense.
When the offense is bailable the direction is " to keep .Wullus commodum capere potest de
in safe custody for want of sureties, or until dis- injuria sua propria. No one advantage
charged by due course of law;" when not bailable, shall take of his own wrong-doing — as a
" until discharged by due course of law; " and when cause of action or of defense.
for further examination of the charge, " tor further
Applies where a partner retires from a firm, and
hearing." ' See Bail, 1 (2); Capere, Capias, Cepi.
COUMITTEE. One or more persons to fails to give notice of the change; where a person in-
advertently orfraudulently mingles grain of his own
whom a matter is referred for examination, with higher-priced grain belonging to another; where
deliberation, superintendence, action, or rec- a tenant for years or for life cuts down trees and then
ommendation. claims them; where a grantor attempts to dispute the
validity of the title he has conveyed; where one party
An individual or a body to which others
binds another to a condition impossible to be per-
have committed or delegated a particular
formed, or does something to prevent or hinder per-
duty, or who have taken upon themselves to formance.
perform it in the expectation of their act The maxim apphes only to the extent of undoing
being confirmed by the body they profess to an advantage gained against the right of another, not
to taking away a right previously possessed.*
represent or to act for.' Thus, also, an admission, whether of law or of fact,
More particularly, a person appointed by which has been acted upon by another, is concliisive
a court to take charge of the person or the against the person who made it.*
estate, or of both, of a lunatic, habitual Qui sentit commoduni, sentire debet
drunkard, or spendthrift. et onus. He who enjoys the benefit, ought
The committee of a lunatic is a bailiff whose power also to bear the burden. He who enjoys the
is limited to the mere care of the estate under the
direction of the court.* advantage of a right takes the accompany-
The civil law assigned a tutor to protect the person, ing disadvantage — a privilege is subject to
and a curator to manage the estate. . To prevent its condition.
Illustrated in the rights and liabiUties arising out
sinister practices the next of kin was seldom ap-
of the relation of principal and agent, grantor and
pointed committee of ttre person, but generally man-
ager of the estate, accountable to the court, to the grantee, lessor and lessee, attorney and client, hus-
band and wife, innkeeper and guest, a carrier and the
representative of the lunatic, and to the lunatic him-
self upon recovery.' public — the principle pervades the law in all its
But now, for committee of the person, the next of
On this principle rests the law of alluvion:
branches.' the
kin is favored; and for committee of the estate, the
heir at law."
> L. commodue, convenience.
COMMITTITUK. See Commit, 3; In-
terim. 2 [Portland Bank v. Apthorp, 12 Mass. 266 (1816), Par-
ker, C. J.
COMMODATUM. See Accommoda- 3 Commonwealth v. Lancaster Savings Bank, 123
TUM.
Mass. 495 (1878); Connecticut Ins. Co. v. Conunon-
wealth, 138 id. 163 (1882); Gleason v. McKay, 134 id.
1 4 Bl. Com. 300; :^ id. 134; 112 Mass. 68.
424-26 (18;3), cases; Hamilton Company t>. Massachu-
»See4Bl. Com. 296-300; 4 Cranch, 129; 17 F. E. 156; set s, 6Wall. 640 (1867); 24 How. Pr. 492.
9 N. H. 185; 6 Humph. 391. * See Broom, Max. •279; State k. Costin, 89 N. C. 616
' Reynell v. Lewis, 15 M. & yf.'&Z9 (1846), Pollock, 0. B. (1883).
♦Lloyd V. Hart, 2 Pa. 478 (1846), Gibson, C. J. « See 1 Greenl. Ev. §§ 207-9.
' 1 Bl. Com. 306; 3 id. 427. •See Cooper v. Louanstein, 37 N. J. E. 305 (1883);
• Shelford, Lunacy, 137, 140, 441. Mundorff v. Wickersham, 63 Pa. 89 (I*), oases.
 COMMON COMMON
212

owner takes the chances of injury and of benefit aris- as, to feed his beasts thereon, to catch fish,
ing from situation.' Compare Onus, Cum onere.
to cut wood.'
COMMON. 1, adj. (1) BeloDging to, or Commoner. A person invested with a
participated in, by several or more persons ; right of common.
mutual : as, a common — ancestor, benefit, Existed between the owner of a manor and his
labor or service, mastei-, property, recovery, feudal tenants, — for the encouragement of agricult-
tenants iu common, 2 qq, v. ure. The tenant's right was to pasture his cattle,
(2) Originating with, or subsisting for, the provide necessary food and" fuel for his family, and
people at large; belonging to, or affecting, repair his implements of husbandry, from the lord's
the public ; not private, but public or general, land.An 2 incorporeal hereditament. The right usually
g. 1). : as, a common or the common — bench, meant is common of pasture: the right of feeding
carrier, 'council, fishery, highvcay, inn, law, beasts on another's land. There was also common of
estovers: the liberty of taking necessary wood, for use
nuisance, pleas, right, schools, way, qqi v. of house or farm — house-bote, fire-bote, hay-bote,
(3) Ordinary, usual, customary, familiar; hedge-bote, etc. ; common of piscary; the liberty of
opposed to special: as, common or a com- fishing (g. t) ) in another's water; common of turbary:
a right to dig turf; common in the soil: a right to dig
mon— appearance, assumpsit, assurance,
for minerals, etc. All the species result from the
bail, bar, bond, care or diligence, costs,
same necessity — the maintenance and carrying on of
count, informer, intendment, intent, jury,
husbandry. '
mortgage, seal, stock, traverse, warranty, Commonable beasts. Beasts of the plow;
qq. V. beasts which manure the ground.
(4) Frequent, habitual: as, common of- Inter-commoning. Where the beasts of
fenders— barrator, drunkard, gambler, pros- adjacent manors have immemorially fed
titute, scold, thief, qq. v. upon adjoining commons.
Three distinct acts of sale of liquors are necessary Commons of pasture were appendant, when regu-
to constitute a "common " seller. Such has been the larly annexed to arable land,— for the support of
rule as to common barrator, and other cases of this commonable beasts; appiirtenant, when annexed to
nature.^ lands in other lordships,— for the support of all kinds
(5) Ordinary; manual; opposed to mental of animals, and arose neither from necessity nor from
or intellectual : as, common labor, q. v. any connection of tenures; in gross or at large, when
2, n. The common field ; ground set apart annexed to » man's person, by grant to him and his
heirs; because of vicinage, when -the inhabitants of
for public uses.* adjoining townships intercommoned.' See Feud.
The waste grounds of manors (q. v.) were The right of common, with many of its old com-
called "commons."' mon-law incidents, was formerly recognized in this
Land appropriated to a public common may not be country, particularly in the middle and eastern
diverted to other uses, to the prejudice of individuals
States.*
who have purchased lots adjoining it.* 1 2 Bl. Com. 32.
Where privileges of a public nature are beneficial ■ " 3 Kent, 403. ^
to private property, as in the case of land upon a pub-
' 2 Bl. Com. 33-35; 3 id. 237.
lic square, the enjoyment of the privileges will be pro-
tected, by injunction, against encroachment.^ See *See Watts v. CofHn, 11 Johns. *493 (1814),— as to
Dedication, 1. lands in the city of Hudson, Columbia country, N. Y. ;
Common, or right of common. A profit Livingston v. Ten Broeck, 16 id. "15 (1819),— town of
Livingston, same county; Leyman v. Abeel, ib. *S0
which a man hath in the lands of another :
(1819),— Catskill patent; Van Rennselaer v. Radcliff,
10 Wend. »639 (1833),— town of Guilderland, Albany
county.
' County of St. Clair v. Lovingston, 23 Wall. 69 (1S74).
= Chambers v. Harrington, 111 XJ. S. 352 (1884). See also Western University of Pennsylvania v.
a Commonwealth v. Tubbs, 1 Cush. 3 0848), Dewey.'j. Robinson et al., 12 S. & R. *S9 (1824), and Carr v. Wal-
* Patterson v. McEeynolds, 61 Mo. 203 (1875); Craw- lace, 7Watts, 394 (1833),- both as to one hundred
ford-!). Mobile, &c. R. Co., 67 Ga. 416 (1881). acres of land in the town of Allegheny, Pa. (now
S2B1. Com. 32. constituting the parks in the central portion of the
'» See Emerson v. Wiley, 10 Kck. 315 (1831); Carr v. city), in which the State, in 1787, created the right of
Wallace, 7 Watts, 394 (1838); Abbott v. Mills, 3 Vt. S25 " common of pasture " in the purchasers of " in-lots "
(1831); State v. Trask, 6 id. 864 (1834). in the plan of lots laid out and sold by the State for
■' Wheeler v. Bedford, 54 Conn. 248-49 (1886), cases: the purpose of raising money with which to pay pub-
2 Story, Bq. § 927; High, Inj. § 551. ■ An injunoti'on to lic debts. In 1819 the legislature, without the consent
prevent inclosing part of a town common or public of the owners of those lots, granted ifty acres of these
park, by the owner of a lot adjoining the lot of com- "commons" to the university hamed, but the su-
plainant. preme court, in Robinson's Case, held that the State
 GQMMONS, HOUSE OF COMMUNICATION
213
quire to be disclosed in a judicial or legislative
COMMOH-S, HOUSE
liament. OP. See Par- examination.
COMMONWEALTH. The common or Public policy forbids the disclosure of matters
which the law regards as confidential, and as to which
public weal: the republic; the state, or a it will not allow confidence to be violated.'
State; the people, gg. v. The rule, at common law, does not extend to con-
" The commonwealth or public polity of the king- fessions niade to clergymen. This has been changed
dom." ' Blackstone also wrote it "commonwealth."" by statute in some States, as in Iowa, Michigan, Mis-
The legal title of a few of the States, as of souri, New York, and Wisconsin.'
Kentucky, Massachusetts, Pennsylvania, Vir- Confidence between husband and wife, as to the in-
terests ofeither, is forever inviolable."
ginia. A lawyer who has counseled with a client cannot
COMMOEANT.3 Inhabiting, dwelling, disclose information received from him. The inhibi-
residing ; as, in saying that a person is or is tion includes a clerk or a student in the lawyer's office;
not commorant in a particular place. Whence and applies also to a scrivener or a conveyancer. But
commorancy.* a legal adviser may testify as to "negotiations" be-
COMMOEIENTES. L. Those who die tween clients who later become adversaries. The rule
does not cover a disclosure of an intention to break the
at the same time, from the same accident or
law, nor testamentary communications, nor informa-
calamity. See Sxjrvive, 3. tion obtained outside of the professional relation.*
COMMOTION. A "civil commotion" A conuuunication to a medical attendant is not
is an insurrection of the people for general privileged.. A few of the States (among others, those
mentioned above) have conferred the immunity, ex-
purposes, though it may not amount to a re-
cepting consultations for criminal purposes.'* See
bellion, in which there is usurped power.' Information, 1.
COMMUNE. See Communism. State secrets are privileged. This embraces com-
COMMUNICATION. Information im- munications toany high officer of state, and consulta-
parted by one person to another. tions with the executive, or a committee of the legis-
Confidential communication. Infor- lature."
Prosecuting attoraeys are privileged as to confiden-
nsation impai-ted between persons who occupy tial matters.' See Accomplice.
a relation of trust and duty ; a privileged com- Communications between a party and a witness, by
munication. way of preparation for trial, are privileged. ^
Neither arbitrators, judges, nor jurors can be com-
Privileged communication. 1. Infor- pelled to disclose the grounds of their flndiiigs.' See
mation imparted which the law does not re- Jury, Grand.
had only the right of soil, subject to the right oC com- Ties of blood create no privilege.'" _
mon, which latter right the lot-holders could release Telegrams {q. v.) are not protected."
or modify at pleasure, with the concurrence of the 2. In the law of slander and libel, false
legislature! Some three years later, at the request matter not actionable, because the circum-
of a large majority of the lot-owners, the legislature
granted ten acres of the same common to trustees ' Totten V. United States, 92 U. S. 107 (1875).
representing the Presbyterian Church m the United ,2 1 Greenl. Ev. §§ 247-48, cases; 1 Whart. Ev. §§ 59li-
States, for the uses of a theological seminary. After 98, cases.
the lap^ of several years, during which more than 3 1 Greenl. Ev, |§ S54, 334;,1 Whart. Ev. |§ 427-33; 113
125,000 had been expended in improvements, one Carr, Mass. 160; 46 Barb. 158; 35 Vt. 379.
who had acquiesced in this disposition of the common * 1 Greenl. Ev. |§ 237-^6; 1 Whart. Ev. §§ 576-93; 74
ground, by suit in coiurt questioned the validity of the Me. 543; 101 Mass. 193.
grant to the trustees. The supreme court held that » 1 Greenl. Ev. § 248; 1 Whart. Ev. § 606: Connecticut
by failing to complain at the proper time he had ap- Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 254
proved what had been done. (1884); Gartside u. Connecticut Mut. Life Ins. Co., 76
See also Thomas «. Marshflield, Mass., 10. Pick. 364 Mo. 449-53 (1882), cases, statutes.
(1830). and Phillips v. Ehodes, 7 Mete. 332 (1843),— as » 1 Greenl. Ev. §| 250-51 ; 1 Whart. Ev. §§ 604-5, cases;
to rights of common in a beach; and Hall v. Law- Worthington v. Scribner, 109 Mass. 488-93 (1872), cases;
rence, 2R. I. 818 (1852),— which concerned a similar Totten V. United States, 92 U. S. 105 (1875); Hartranft's
right at Newport, in 1776. On the origin of rights of Appeal, 85 Pa. 433 (1878); Bex v. Hardy, 24 How. St.
common, see 3 Law Q. Eev. 373-98 (1837). Tr. 815 (1794); 15 Op. Att.-Gen. 9, 378, 416; 50 Md. 626.
' 4 Bl. Com. 127. 'Vogel V. Gruaz, 110 U. S. 311, 316 (1884), cases;
"3 Bl. Com. 9. 1 Whart. Ev. § 603.
' C6m'-mo-rant. L. commorari, to abide. 8 1 Whart. Ev. § 594.
' See 3 Bl. Com. 364; 4 id. 273; Wright v. Smith, 74 » 1 Whart. Ev. §§ 699-601; 1 Greenl. Ev. §§ 249, 352.
Me. 497 (1883): Me. Laws, 1876, c. 93. >» 1 Whart. Ev. | 607; 14 111. 89; 3 Wis. 456; L. E., 18
* [Langdale v. Mason, 2 Marsh. Ins. 792 (1780), Ld.
Mansfield; May, Ins. § 403. "IWhart.
Eq. 649. Ev. §§696, 617.
 COMMUNICATION COMMUNITY
214

stances gave the defendant a right to make 3. Words used in the course of a legal or judicial
the statement. proceeding, however harsh. 4. Publications duly
The occasion on which the communication was made in the ordinary mode of parliamentary proceed-
ings. . In these cases the complainant must show
made rebuts the inference arising, prima facie, from
express malice, by construction of the matter, or by
a statement prejudicial to the character of the plaint-
iff, and puts it upon him to prove that there was facts accompanying the matter or the parties.*
In some jurisdictions the privilege is spoken of as
malice in fact — tiiat the defendant was actuated by
"absolute," that is, it reste upon grounds -of policy,
motives of personal spite or ill-will, independent of the
occasion on which the communication was made.i requiring freedom in debate or argument, and in giv-
ing testimony — in which cases proof of even actual
" Privileged " in this connection iheans simply that malice is not received, unless it be as to the last: as,
the circumstances under which the communication
was made were such as to repel the legal inference of for utterances by a legislator, judge, advocate, or wit-
malice, and to throw upon the plaintiff the burden of ness; and ^s "presumptive," that is, in which the
offering evidence of its existence beyond the mere plaintiff may prove absence of good faith or actual
falsity of the charge. * malice: as, communications in discharge of social du-
ties; when the author or recipient has a legal interest
A communication made fcona ^de upon ^ay subject-
matter in which the party communicating has an in- to be promoted; answers to legitimate inquiries; char-
terest, or in reference to which he has a duty, is acters given to servants; statements to sellers as to
privileged, if made to a person having a corresponding credit of buyers; notices protective of one's interests
interest or duty, although it contains criminatory or in discharge of a corporate duty.*
Utterances in the course of church discipline, to or
matter which, without this privilege, would be slan- of a member of the church, are not actionable unless
derous and actionable.^
Where a person is so situated that it becomes right, express malice be proved." See Libel, 5; Slander.
COMMUNIS. See Error, 1, Communis.
in the interests of society, that he should tell a thii'd
person certain facts, then if he bona fide and without COMMUNISM. A name given to
malice does tell them it is a privileged communication. schemes of social innovation which have for
The jury must say whether the statement was made
their common starting-point the overthrow
in'^good faith.* of absolute rights of ownership in private
In some instances a voluntary imparting of infor-
mation will be justified; in others the privilege applies property as an institution. Most theories fur-
only to information in response to inquiries. The sub- ther comprehend the regulation of industry
ject may be one that is privileged, and a communica- and the sources of livelihood, as well as of
tion on that subject be imprivileged. If the restraints the domestic relations, and some involve the
imposed by law upon the publicity to be given the
communication be disregarded, the communication is abrogation of all central authority in a State,
unprivileged and actionable, although made from the and the substitution of that of the commune.*
best of motives. Tfie act of communicating defama- It is the latter feature that constitutes a distinction
tory matter to a person with respect to whom there is between commimismand socialism.* See Anarchy;
no privilege is without legal justification or excuse. Government; Nihilist.
Good faith and honest belief will not justify defama- COMMUNITY.s 1. Unity; mutuality;
tion.^ as, community of interest or of intention.
In the law of libel, privileged communications are :
See Partnership.-
1. When an author or publisher acted in bona fide dis;
charge of a public or private duty, legal or moral ; or 2. In Louisiana, Texas, California, and per-
in the prosecution of his own 'rights or interests. 3. haps in New Mexico and Arizona, a sj)ecies
Anything said or done by a master in giving the char- of partnership created between husband and
acter of a servant who has been in his employment.
wife by the contract of marriage, in acqui-
sitions oi property made or received during
I Wright V. Woodgate, 2 Cromp., M. & E. 577 (1835), the continuance of that relation.
Parke, B.
This community is conventional when
a Lewis V. Chapman, 16 N". Y. 373 (1857), Selden, J.
3 Harrison v. Bush, 5 Ellis & B. *347-48 (1855), Camp- formed by express agreement in the contract .
bell, C. J.
^Davies v. Snead, L. R., 5 Q. B. *611 (1870), Black- 1 White V. NichoUs, 3 How, S8G-92 (1845), cases, Dan-
burn, J. See Waller v. Loch, 7 Q. B. D. 621-23 (1881); iel, J. As to newspaper publications, see 21 Cent.
Marks " Baker, 23 Minn. 164-65 (1881), cases; Erber v. Law J; 86-90, 4:0-55 (1885), cases.
Dun, 12 F. R. 530 (1882); Trussellv. Scarlett, 18 id. 214, 2 See O'Dona^hue v. M'Govern, 23 Wend. *29 (1840);
216-20 (1882), cases; Locke v. Bradstreet, 22 id. 771 Howard v. Thompson, 21 id. 825 (1839).
(1885); 26 Am. Law Beg. 681-93 (1887), cases. s Coombs V. Rose, 9 Blackf. *157 (1846), cases. Con-
6 King V. Patterson, 49 N. J. L. 421 , 41 9-33 (1887), cases, tra, Fitzgerald v. Robinson, 112 Mass. 371-78 (1873).
Depue, J. The plaintiff (above) published in his cases; Magrath v, Finn, 16 Alb. Law J, 186 (1877) —
Irish Common Pleas,
" mercantile agency notification sheet "the false in-
formation that the defendant had executed a chattel ^ [Worcester's Diet.
mortgage upon her stock of goods. * L. cornviunis, commoa
 COMMUTATION 315 COMPANY

of marriage ; legal, when it arises by oper- value or degree. Opposed, incommutable,

ation of law — as where there is no express incommutative, non-commutable.
stipulation. COMPACT. An agreement or contract —
At the dissolution of the relation the effects are di- between independent sovereignties.!
vided equally, as between heirs. ^
Original or social compact. The im-
Statutes upon the subject proceed upon the theory
that the marriage, in respect to property acquired
plied contract of association of individuals
during its existence, is a community, of which each in a community, by which, in return for the
spouse is a member, equally conti-ibuting by his or her beneiits of the association, the individual
industry to its prosperity and possessing an equal surrenders such of his natural freedom as is
right to succeed to the property after dissolution, in,
necessary for the good of society.
the event of surviving the other. To the community
Thereby, whatever power the individual had to
all acquisitions by either, whether made jointly or
punish offenses against the law of nature is vested in
separately, belong. No form of transfer or mere in-
tent of parties can overcome this positive rule of law. the magistrate — the sovereign power.'' See Body, 2,
All property is common property, except that owned Corporate.
previous to marriage or acquired after the relation COMPAiry. 1. The member of a part-
has ceased. The presumption is against separate nership (q.V.) whose name does not appear
ownership. A pin-chase made with separate funds in the name of the firm.
must be aflfinnatively established by clear and decisive
The use of the collective designation " & Co.," as
proof. The husband has the entire control of the part of the name of a firm, creates a presumption that
common property; and it is liable for his debts. ^ there is a partner in addition to the person or persons
3. A society of people having common whose names are given; but this presumption is re-
rights, interests, or privileges in matters of buttable. Statutes in Louisiana and New York forbid
property, representation, etc. the use of the addition unless an actual partner is rep-
An association by which each member surrenders resented byit; but a fanciful title, such as "Eureka
his property into one common stock for the mutual Co.," may still be used; and the reference may be to
benefit of all during their joint lives, with the right a person under disability. Such statutes are intended
of survivorship, reserving to each member the right to protect persons who give credit to, not those who
to secede at any time during his life, is not prohibited obtain credit from, a flrm.»
by law.*
3. Applied to persons 'engaged in trade,
4. A society of people possessing common those united for the same purpose or in a
political interests; a political society. See
State, 3 (3). joint concern.*or"
"Company" association," when used in the
Eevised Statutes, acts or resolutions of Congress, in
COMMUTATIOM'.i Putting one thing reference to corporations, shall be deemd to embrace
for another ; substitution. the words " successors and assigns of such company
As, of a tax, for a personal service ; an annuity to or association " in like manner as if these last-named
a tribe of Indians, for goods; rations to a soldier, for words, or words of similar import, were expressed. »
money; * an artificial limb, for its value in money.' The simple word " company " will include individ-
Commutation of pTinishmeiit. The uals as well as corporations.'
substitution of a less for a greater penalty or Often designates a numerous association, chartered
or unchartered. Every imincorporated company is a
punishment ; ' the change of one punishment
for another and diflferent punishment, both partnership.
See Association; Partnership, Limited; Stock,
being known to the law.s See Pardon. 3 (2); Bubble; Express; Prospectus; Eailroad; Tei/-
Commutable; commutative. Capable eqraph; Transportation.

or admitting of substitution; not inter- ' See 8 Wheat. 92; 11 Pet. 185; 1 Bl. Com. 45.
2 1 Bl. Com. 233, 299; 3 id. 160; 4 id. 8, 71, 382. See 1
changeable for another — of less or equal
Shars. Bl. Com. 232; Atlantic Monthly, June, 1887,
»La. Civ. Code, 2375, 2393; 10 La. 146, 172, 181; 13 id.
p. 760, article by A. L. Lowell, who undertakes to show
698. See as to Texas, Hanriok v. Patrick, 119 U. S. 172 that the theory, first propounded in 1594 by Eichard
(1886), cases. Hooker, adopted by Hobbs, Locke, Rousseau, the
' Tibbetts v. Fore, 70 Cal. 244-^5 (1886), cases ; Schuyler framers of the constitution of Massachusetts, and
V. Broughton, ib. 283 (1886), cases. Kant, has been made the servant of absolutism, de-
s Schriber v. Eapp (Harmony Society), 5 Watts, 3B1, mocracy, revolution, and transcendental ethics.
360 (1836); Baker v. Naohtrieb, 19 How. 126 (1856); s 1 Bates, Partn. §§ 191, 198, cases; Gay v. Seibold, 97
Speiiel v. Henrici, 120 U. S. 377 (1887). N. Y. 476 (1884); Lauferty v. Wheeler, 11 Daly, 197
' L. commufare, to exchange with. (1882); Zimmerman v. Erhard, 83 N. Y. 76 (1880);
» United States v. Lippitt, 100 U. S. 663, 670 (1879). Kent V. Mojoiner, 36 La. An. 259 (1884).
• K. S. § 4788. • Palmer v. Pinkham, 33 Me. 36 (1851), Shepley, C. J.
' Lee V. Murphy, 22Gratt. 799, 798-800 (1872), cases. s E. S. § 5: Act 26 .Tuly, 1866.
9 Hxp. Janes, 1 Nev. 321 (1865). • Chicago Dock Co. v. Garrity, 115 HI. 164 (1885).
 COMPARATIVE COMPENSATION
316

COMPARATIVE. See Jurisprudence ; means pecuniary recompense equivalent in

Negligence.
value to that of the property, i
COMPARISOlf. See Handwriting. "Just" intensifies the meaning of "compensa-
COMPENSATIOW. That return which tion "— imports that the equivalent shall be real, sub-
is given for something else — a consideration : stantial, full, ample.''
Nearly all of the authorities agree that " just com-
as, the conlpensation of an office, i pensation "consists in making the owner good, by an
Compensatory. Serving as an equiva- equivalent in money, for the loss he sustains in the
lent; making amends: as, compensatory value of his property by being deprived of a portion
damages, g. v. In determining the value of land appropriated for
1. Recompense ; remuneration : as, for serv- of it.' purposes, the same considerations are to be
public
ices rendered by an officer, agent, attorney, regarded as in the sale of property between private
trustee. persons. The inquiry is. What is the property worth
When not fixed by agreement, e\4dence of the in the market, viewed not merely with reference to
amount ordinarily charged in like cases is admissible. the uses to which it is at the time applied, but with
The service, however, must be lawful. An agreement reference 'to the uses to which it Is plainly adapted;
to pay a contingent compensation for professional that is to say, what] is it worth from its availability for
vg.luable purposes. . . So many and varied are the
services in prosecuting a claim against the govern- circumstances to be taken into the account that it is
ment, pending in a department, is not unlawful.'^
perhaps impossible to formulate a rule to govern its
In a constitutional provision that the " compensa- appraisement in all cases. Exceptional circumstances
tion" of any public officer shall not be increased
or diminished during his term of office, applies to will modify the most carefully guarded rule. As a'
officers who receive a fixed salary from the public general thing, the compensation is to be estimated by
treasury, not to such minor officers as are paid by reference to the uses for which the property is suit-
able, having regard to the existing business or wants
fees taxed, or allowed for each item of service as it is
of the community, or such as may be reasonably ex-
rendered.'
When Congress has said that a sum appropriated pected in the immediate future.*
When an incorporated company appropriates land,
shall be "in full compensation" of the services of a the measure of compensation is the difference between
public officer, the courts cannot allow him a greater
the value of the property before and after the taking,
sum. The appropriation of a fixed sum as compensa-
tion, followed by the appropriation of a round sum as and as affected by the taking. ^
See Domain, Eminent;. Police, 2; Street; Take, 8.
" additional " pay, evinces an intention not to allow
further compensation during the period specified. So, 4. In equity, something to be done for, or
a statute which fixes the annual salary of an officer at money to be paid to, a person, equal In value
a designated sum without limitation as to time, is not or amount to the right or. thing of which he
abrogated by subsequent enactments appropriating a has been deprived.
less amount for his services for a particular fiscal
Ordinarily decreed as incidental to other relief
year, but containing no words which expressly or im- sought by the bill, or where there is no adequate rem-
pliedly modify or repeal it.* See Commission, 3; Con-
tinuance, 3;Count, 4 (1), Common; Expert; Impair; edy at law, or where a peculiar equity intervenes.^'
Compensation may be decreed where . the court
Legal; Salary.
cannot grant the specific relief prayed for. Thus, if a
2. Remuneration for loss of time, neces- plaintiff was originally entitled to specific perform-
sary expenditures, and for permanent disa- ance of a contract of sale, but it so happens that be-
fore the final decree it becomes impracticable for the
bility, if such be the result. 5
defendant to make a conveyance, so that the specific
As, compensation for personal" injuries caused by relief sought for cannot be decreed, the court will not
another's negligence. See Damages.
3. Amends for privation of a thing; an
equivalent for property taken for a public 1 Council Bluffs E. Co. v. County of Otoe, ,16 Wall.
674 (1874). Strong, J.
use.
'i ■V^irginia, &c. E. po. u. Henry, 8 Nev. 171 (1873),
Just compensation. Private property Whitman, C. J.
cannot be taken for a public use without just 'Bigelow V. West Wisconsin E. Co., 27 Wis. 487
(1871), cases, Lyon, J.
compensation being made or secured. This
< Mississippi, &c. Boom Co. v. Patterson, 98 U. S.
407-8 (1878), Field, J.
1 Searcy v. Grow, 16 Cal. 123 (1860).
2 Stanton v. Embrey, 93 U. S. 548 (1876). » See Lake Erie, &c. E. Co. v. Kinsey. 87 Ind. 516-81
(1883), cases ; Shenango, &c. R. Co. v. Braham, 79 Pa.
2 Supervisors of Milwaukee «.. Hackett, 21 Wis. *617-18
(1837), Dixon, C. J. 453 (1875), cases; 39 Ala. 171-72; 42 id. 8; .!6 id. 679; 69
< United States v. Fisher, 109 U. S. 143 (1883); United Ga. 323; 133 Mass. 265, 4.33; 84 Miss. 227; 86 id. 300; 17
N. J. L. 47; 20 id. 252; 38 id. 156; 14 Ohio, 175; 9 Oreg.
States V. Mitchell, ib. 146 (1883); United States v. Lang-
Bton, 118 id. 389 (18S61. 379-80; 2 Kent, 338; Pierce, Eailr. 210,212, 234.
» Parker v. Jenkins, 3 Bush, 591 (1868). »2Story, Eq. Ch. XIX.
 COMPERUIT 317 COMPLETE

turn the plaintiff over to seek his damages in an action open to be published by any one, is a new work. . .
at law, but will proceed directly to decree him com- " Colorable differences " applies to devices intended to
pensation.' See Condition, Pi'ecedent, Subsequent. cover a literary piracy, n&t to real and substantial
5. A mode of extinguishing a debt, and differences.!
takes place, by mere operation of law, where A compilation made from voluminous public docu-
ments, and arranged to show readily the date and
debts equally liquidated and demandable are order of historic events, may be copyrighted. Such
publications are valuable sources of information and
reciprorally due.'-'
COMPERUIT. See Dies, Comperuit. require labor, care, and some skill in their prepara-
tion.'* See further Abridge; Pikacy, 2; Report, 1(2);
COMPETENT. Answering the require- Review, 3.
ment of the law ; legally able, fit, or quali- COMPLAINT. 1. A formal charge that
fied : also, proper or admissible as evidence.
a person named has committed an offense,
Whence compet-ency; incompetent, incom-
preferred before a magistrate or a tribunal
petency.
A judge is said to be incompetent to hear a cause authorized to inquire into the probable truth
in which he is interested; and an infant, or a married of the accusation.
woman, incompetent to contract for an article not a Refers to a proceeding before a magistrate." But
necessary. may include an indictment.' Implies thatan oathhas
All witnesses that have their reason, except such as been administered.'
are infamous, or, at common law, are interested in A complaint is the initial proceeding in criminal
the event of the cause, are competent, but the jin-y prosecutions and examinations before magistrates,
must judge of their credibility,^ q. v. and is made upon oath. If a jurat be attached, and it
Competency is a question for the court. Every be properly certified by the magistrate, as is fre-
witness is presumed to be competent. Oi'dinarily, in- quently the case, it will be essentially an " affidavit,"
competency isto be objected to when first known or But a complaint is not necessarily an affidavit, nor are
discovered — before the witness is sworn and his testi- they understood as convertible terms. For, though a
mony found to be unfavorable.' See further Evi- complaint may be reduced to writing and subscribed,
dence, Competent; Witness. it need not be certified by the magistrate, since the
COMPETITION. See Monopoly ; Pol- fact may otherwise appear from his record. And it
icy, 3; Trade, Restraints. may be merely formal, made by one who has little, it
any, knowledge about the facts, and the examination
Competitive examinationa. See Serv-
consist of the depositions of other witnesses. An "affi-
ice, 3,Civil. davit," on the other hand, as the term is ordinarily
COMPILE. To copy from various au- used, is a sworn statement of facts or a deposition in
thors into one work. Implies the exercise of writing, and includes a jurat— a certificate of the
magistrate showing that it was sworn to before him,
judgment in selecting and combining the
extracts.* including the date, and sometimes also the place.'
3. The first pleading filed by a plaintiff in
A compiler may take existing materials from a civil acti(m.
sources common to all writers, and, by arranging
them in combination in a new form, give them an ap- The first pleading in an action ; containing
plication unknown before. Others may use the mate- a statement of the cause of action, with a
rials, but not his improvement. The "fair not use" demand for the appropriate relief to which
which is allowable applies to the materials, to
another's plan and arrangement. ' the party may be entitled. '
A compilation made from original sources is a new Complainant. One who prefers a charge
work. The fact of originality may be proved by an- of crime; also, he who institutes a civil suit,
other than the author. A compiler is an " au- particularly a suit in equity.
thor," within the meaning of the Constitution and the See Declaration, 3; Plaint. Compare
copyright laws. . A compilation, which is the AUDIRB, Audita, etc.
result of labor devoted to gathering from original
sources and to arranging in convenient form facts COMPLETE. See Cause, 3, Of action;
Inchoate; Perfect.

■Mason's Appeal, 70 Pa. 29-30 (1871), cases; 77 id.

227; 75 id. 483; 13 Ves. 73, 287. 1 Bullinger v. Mackey, 15 Blatch. 556, 5S8 (1879), cases.
»See Dorvin v. Wiltz, 11 La. 520 (1856); Stewart D. = Hanson v. Jaccard Jewelry Co., 33 F. B. :03 (1887),
Hai-per, 16 id. 181 (1861). cases.
Thayer, J.; Drone, Copyr. 152-51,
s 3 Bl. Com. 369. As to moral status, see 19 Am. . 3 Commonwealth v. Davis, 11 Pick. "436 (lasi).
Law Rev. 343-58 (1885), cases; as to mental status, ib. 4 Commonwealth v. Haynes, 107 Mass. 197 (1871).
583-92 (1885), cases. 5 Campbell v. Thompson, 16 Me. 120 (ISM).
< 1 Greenl. Ev. § 50; 1 Whart. Ev. §§ 891-411, 418-21 » State v. Richardson, 34 Minn. 117-18 (1885),
5 Story's Ex'rs v. Holcombe, 4 McLean, 313 (1847). Vanderburgh, J. Extradition Act, R. S. § 5378.
» Lawrence v. Dana, 4 LlifE. 75-86 (1869), cases. ' M'Math V. Parsons, 26 Minn. 247 (1879).
 COMPOS 218 COMPROMISE

COMPOS.- L. Having control of; pos- compounded when adjusted by payment of

sessing power over.
part in satisfaction of the whole.! See Com-
Compos mentis. Having capacity of position, 3.
mind ; sound in mental faculties ; of sound (4) To take goods, or other amends, upon
mind. Ifon compos m.entis. Not of sound an agreement not to prosecute a person for a
mind ; lunatic ; insane. See Insamty. crime.
COMPOSITION. 1. In the law of copy- Compounding a misdemeanor is sometimes al-
right, the invention or combination of the lowed by leave of court, as affecting the individual, he
having a right of action for damages. Compound-
parts of a work ^ literary, musical, or dra- ing a felony is, at common law, an offense of an
matic : as, in the case of a letter, discourse, equivalent nature [to the felony], and is, besides, an
or book ; or of an opera ; but not of a mere ex- additional misdemeanor against public justice by con-
hibition, spectacle, or scene.l See Book, 1; tributing tomake the laws odious.^ See Bote, Theft;
COPYKIGHT; DEAMA; OPERA. Lkqal, Illegal. ■
By Stat. 25 Geo. n (1758), o. 36, advertising a reward
2. In the law of patents, a, mixture or
for the return of things stolen, " no questions to be
chemical combination. See Patent, 2 ; Pro- asked," subjects the advertiser and the printer to a
cess, 2. forfeiture of £50 each.^
3. Payment of part in satisfaction of the 2. adj. See Interest, 2 (8) ; Larceny.
COMPRISE. See Include.
■whole of a debt. See Compound, 3.
Composition in bankruptcy or insolv- COMPROMISE.* An agreement in set-
tlement of a controverted matter.
ency. A contract by which creditors agree
The yielding of something by each of two
to accept a part of their demands, and to dis-
charge the debtor from liability for the rest.
An arrangement between a creditor and his A mutual yielding of opposing claims ; the
parties.^ of some right or claimed right in
surrender
debtor for the discharge of the debt, on terms
consideration of a like surrender of some
or by means different from those required by
the original contract or by law.2 counter-claim. 6
This may be by a composition agreement so called, Compromises are highly favored in law.
by a letter of license, or by a deed of inspectorship. An *' offer " to do something by way of compromise
See License; Inspection, 3. of a controversy, as, to pay a sum of money, to allow
a certain price, to deliver certain property, and like
A strict composition agreement is an agree- offers, made to avoid litigation, is not receivable in
ment whereby the creditors accept a .sum of evidence against the maker as an admission. If the
money, or other thing, at a certain time or offer is plainly for a compromise, the rule is to pre-
times, in full satisfaction and discharge of sume itto have been made without prejudice — it is
open to explanation. But an admission made during
their respective debts.,2
Obviates the necessity of a discharge by the court; or inconsequence of the offer is receivable.^
if made in good faith and fairly and strictly conducted, To admit evidence of an offer to compromise litiga-
tion would discoiu:age the amicable settlement of dis-
will be upheld. The agreement is evidenced by an in-
putes. When the object is to buy peace, an offer will
strument signed by the debtor and the creditors, and
called a composition deed^ although, at common law, be excluded. =r See Prejudice, Without. /
If the right surrendered is of doubtful validity, its
such instrument is not necessaiy.^ See Accord; Bank- surrender may be a valuable consideration for the
ruptcy; Prefer, 2.
COMPOUIfD. 1, V. (1) To put parts to-
gether to form a whole. See Composition. promise."
' [Haskins v. Newcomb, 2 Johns. *408 (1807), Kent,
(3) To add interest to principal for a new Chief Justice.
principal. See Interest, 2 (8). " [4 Bl. Com. 136. See Smith, Contr. 226.
3 4B1. Cora. 133.
(3) To "compound" a debt is to abate a
part on receiving the residue. Demands are *L. com-promittere, to mutually promise; to arbi-
trate.
"Bellows V. Sowles, 55 Vt. 399 (1883).
> Martinetti v. Maguire, 1 Abb. V. S. 362 (1867); The " Gregg V. Wethersfleld, 55 Vt. 387 (1883); ib. 397; 10
" lolante " Case, 15 F. E. 439 (1883); 17 F. B. 595, cases; Neb. 360; 2 Wis. *6.
9 Am. Law Eeg. 33; 23 Bost. L. R. 397. 'West u. Smith, 101 U. S. S73 (1879), cases; Home
= [4 South. Law Eev. 639-75, 80^42 (1878), cases. Ins. Co. V. Baltimore Warehouse Co., 93 id. .548 (1876)';
s Clarke v. White, 12 Pet. 178 (1838); 20 Cent. Law J. 1 Pet. 222; 16 Op. Att-Gen. 850; 87 Ind. 465; 4 La. 456;
.385-88 (1885), cases; 3 MoCrary, 608; 21 Cal. 122; 49 Conn. 50 Md. 45; 41 N. J. L. 174; 1 Greenl. Ev. § 192; 2 Whart.
105; 75 Ind. 127; 30 Kan. 361 ; 80 Ky. 614; 71 N. C. 70; 92 Ev. § 1090.
Pa. 474; 100 id. 164; E. S. § 5103; 2 Kent, 309, b. "International, &c. E. Co. v. Eagsdale, 67 Tex. 27
 219
COMPTROLLER CONCEAL

An administrator may compound a debt, if for the

benefit of the estate ; ' and so may a partner for the in Plene
full. computa-vit. He has accounted
benefit either of himself or of the firm — statutes in
many of the States making a release of one joint A plea in the action of account-render that
debtor not a release of others.'' the defendant has fully accounted.
The courts, are inclined to favor a compromise Quod computet. That he account, —
fairly made by an attorney at law, and will uphold oomputent, that they account.
it for good reason shown.' See Accord.
An interlocutory judgment in account-
COMPTROLLER, or CONTROLLER.
render or action of account, at law or in
One who keeps a counter-roll, a duplicate
equity, that the defendant render au account
register, of accounts: anofiScer charged with
before an auditor or a master.'
the duty of -verifying accounts in the fiscal COMPUTE. See under Cebtum; Com-
department of government.
putare; Day: Time.
In the treasury there are two comptrollers, desig-
nated as the first and the second. Their duties are pre- CON. 1. A form of cum (q. v.), in com-
scribed by statute,* See Bank, 3 (2). pound words.
In 1880 there was published, by direction of the 3. An abbreviation of contra, and of con-
treasurer, a volume of the decisions of the first comp- versation, qq. V.
troller, of a general character; and, in 1881, a. second
volume. Since 1882, one volume a year has been issued CONCEAL. To hide, keep from view,
under authority of a resolution of Congress of August cover up, secrete; to prevent discovery of;
3, 1882. In the introduction to volumes one, two, and to withdraw from reach ; to withhold infor-
three, more especially to volume three, will be found mation.
an outline of the natm-e and extent of the important
1. To hide or secrete a physical object from
jurisdiction exercised by the first comptroller, and of
the nature of the powers exercised by accounting
sight or observation.2
The act of March 2, 1799, authorizing the seizure of
olHcers generally, as compared with strictly judicial
power. " concealed " goods, subject to duty, requires that the
COMPTJLSORY. Involuntary ; con- goods be secreted — withdrawn from view. It does
to a mere removal, though fraudulent. '
strained.: as, a compulsory — arbitration, as- notToapply " conceal property " in order to prevent its being
signment, condition, nonsuit, payment, pro- taken on process includes not only physical conceal-
cess, qq. V. See Voluntary. ment—literal secreting or hiding, but also the domg
Compulsion. Coercion; duress, qq. v. of any act by which the title of a party is concealed,—
Compare Boycotting. his property so covered up that it cannot be reached
by process. The provision may apply to realty as well
COMPURGATORS. Neighbors of a per-
or a as to personalty.*
son, made a defendant in a criminal A horse may be "concealed" by destroying the
acts
civil action, who testified under oath that means of identifying him. The word includes aU
which render the discovery or identificati on of prop-
they believed he swore to the truth.5 gee
further Wager, 1, Of law. erty more difBcult.'
A " concealed weapon '" is a weapon ■willfully cov-
COMP UTAR E. L. To sum up ; to ac- ered or kept from sight." See further Weapon.
count, q. V. 3. To shelter from observation ; to harbor ;
Insimul computassent. They settled to protect. See Harbor, 1.
an account together. 3. To withdraw to a place where one cannot
An averment that a balance was struck by be found ; to abscond, q. v.
" Concealment by a debtor to avoid the service of
the parties to an account, and that the de- "mvolves an intention to delayer prevent
fendant, against whom the balance appeare d, summons
ordi-
creditors from enforcing then- demands in the
promised, by implication of law, to pay it to be by the debtor's secret-
the plaintif f." nary legal modes. It may
ing himself upon his own premises, or by departing
county
(1887), cases; Chicago, &c. B. Co. v. Catholi
c Bishop, secretly to a more secure place, m or out of the
119 111.631(1887). , , ,,„ of his residence.'
' Jeffries V. Mutual Life Ins. Co. of New York, 110
U. S. 309-10 (1884), cases. 1 3 Bl. Com. 164; 1 Story, Eq. I 648.
a 1 Bates, Partn. §§ 382, 387, cases. s [Gerry v. Dunham, 67 Me. 389 (1869).
108 (1827).
3 Whipple V. Whitman, 13 E. I. 512-15 (1882),
oases-
100 Pa. » United States v. Chests of TeJi, 12 -VSrheat. 486
Township of North Whitehall v. Keller, « [O'Neil V. Glover, 5 Gray, 169 (1856); 4 Cush. 463.
(1832); Holker v. Parker, 7 Cranch, 452 (1813). 0 State V. Ward, 49 Conn. 443 (1881).
* See B. S. |§ 269, 273. • Owen V. State, 31 Ala. 389 (186S).
5 See 3 Bl. Com. 311-48. 7 Dunn V. Salter, 1 Duv. 346 (1864). See also Frey V.
• 8 Bl. Com. 164; 81 N. Y. 271. Aultman, 30 Kan. 182, 184 (1883).
 CONCEAL CONCLUDE
230

Leaving a place, requesting that false information there is an obligation to communicate truly and fairly,
of the person's movements be given, is concealment.' by confidence reposed, or otherwise.' See Fraud.
4. To contrive to prevent the discovery or Aliud est celare, aliud tacere. It is
disclosure of a fact. one thing to conceal, another to be silent.
When the operation of a statute of limitations is to Silence is not concealment^ where matters are
be suspended it the debtor " conceals the cause of ac- equally open for thfe exercise of judgment. See Ca-
tion," there must be an arrangement or contrivance veat, Emptor; Silence.
of an afiBrmative character to prevent subsequent dis- COWCEPTIOlf. See Quickening; Preg-
covery.2 nancy; Venter.
To '• conceal the death of a bastard child " is a
misdemeanor. , The time ^as when -the mother had to CONCEEON". To affect the interest of,
prove, by at least one witness, that the infant was be of importance to, a person. See Inter-
dead-bom ; if she could not she was presumed to be est, 1.
guilty of murder.' See Aideb and Abetter. Sales of property for charges by a bailee,
The fact that the owner of stolen goods does not
know of the theft does notamount to a " concealment or for taxes, "for whom it may concern,"
of the larceny " on the part of the thief, within a pro- mean for the unknown or non-claiming
vision that where a thief conceals his crime the period owner.
of concealment is not to be included within the period A policy of insurance " on account of whom it may
of limitation.* concern," or with equivalent terms, will be applied to
5. To neglect or f prbear to disclose informa- the interests of the persons who ordered it, provided
they had authority to insure. Thus, an agent, factor,
tion to
; withhold intelligence of a fact which
carrier, bailee, trustee, consignee, mortgagee, or any
in good faith ought to be communicated. ^ other lien-holder may insure the property to the ex-
In insurance law, concealment is the intentional tent of his own interest, and, by the use of the words in
withholding of any fact material to the risk, which question, for all other persons, to the extent of their
the assured, in honesty and good faith, ought to com- respective interests, when he has previous authority
municate to the underwriter. . , That is a " mate- or subsequent ratification.*
rial fact " the knowledge or ignorance, of which nat- Concerning. In E. S., § 3894, which
urally influences the judgment of the underwriter in
making the contract, or in estimatihg the degree and provides that no letter " concerning lotter-
character of the risk, or in fixing the rate of the ies " shall be carried in the mails, refers to
premium.' See further EEPKESENTATioif, 1 (2). letters sent out to advertise lotteries.^
"Fraudulent concealment " is the suppression of Concerns. Under a statute exempting
something which a party is bound to disclose. The
intention to deceive must clearly appear. The test persons from turnpike tolls when traveling
is, Whether one party knowingly suffered the other to on " ordinary domestic business of family
deal under a delusion."*
concerns," a physician going to visit his
" Undue concealment," which amounts to fraud in
the sense of a court of equity, and for which it will patients is not exempt.''
CONCESSIOIf. See Cession.
grant relief, is the non-disclosure of those facts and
circumstances which one party is under some legal or CGWCLUDE.s 1. To close, end, termi-
equitable obligation to communicate to the other, and nate ;to finish, complete.
which the latter has a right not merely iu foro con- Conclusion. (1) An ending or closing,
scientuB, but juris et de jure, to know.' as of an instrument or a pleading. See Dec-
Deliberate concealment is equivalent to deliberate
falsehood.^
laration, 3;Indictment; Plea, 3.
In making a contract, each party is bound to com- (3) The last argument to a court, or the
naunicate his knowledge of the material facts, pro- last address to a jury. See Burden, Of
vided he knows that the other party is ignorant of
them, and they are not open and naked, or equally
(3) An inference or deduction: as, a con-
proof.
within the reach of the party's observation, and that clusion offact, or of law. See Presumption.
3. To put an end to, close up ; to be final ;
' North V. McDonald, 1-Biss. 59 (1854). to estop, bar, preclude.*
" Boyd V. Boyd, 27 lud. 429 (1867).
' 4 Bl. Com. 198, 858.
« Free v. State, 13 Ind. 334 (1859). > 4 Kent, 482, note (a).
= See Gerry v. Dunham, 57 Me. 339 2 Hooper u Robinson, 98 U., S. 636, 638 (1S78),
« Magee v. Manhattan Life Ins. Co., 92 U. S. 93 (1875), Robbins v. Firemen's Fund Ins. Co., 16
Swayne, 127J.;(1879).
Swayne, J.; Barfcholmew v. Warner, 33 Conn. 103 Blatch.
(1864): 8 Cummerford v. Thompson, 2 Flip. 014 (1880).
' 1 Stoiy, Eq. § 207; Paul u. Hadley, 23 Barb. 584 « Centre Turnpike Co. v. Smith, 12 Vt, 216 (1840).
(1857). ^ L. claudere, to shut up, close.
" Crosby v. Buchanan, 33 Wall. 454 (1874). " See Hilliard v. Beattie, 58 N. H. 112 (1877)i
 CONCUBINAGE 331 CONDITION

Conclusive. Determinative, decisive ; 8. To confiscate as contraband of war. See

Confiscate.
not to be questioned, controverted, or contra-
dicted, nor requiring support. Inconclu- 4. To declare a vessel to be a prize, or unfit
sive: presumptive, rebuttable. for service.! See Prize, 3.
As, in speaking of a judgment, or of a return of 5. To adjudge necessary for the uses of
service that is conclusive, and of conclusive and in- the public : as, to condemn private property
conclusive evidence or presumptions, qq. v.
A party who fails to assert his right, after receiving under the power of eminent domain. See
Domain, 3.
notice of a proceeding affecting it, is said to be " con-
cluded "by the judgment. A condemnation of lands is a purchase of them in
COHrCUBINAGE. " Concubinage " and invitum; the title acquired is a quitclaim.^
6. To judicially determine that realty, out
" prostitution " have no common-law mean-
ing. In their popular sense they include all of its rents and profits, clear of reprises, will
cases of lewd intercourse,! q. v. See also not satisfy a judgment within a prescribed
Prostitution. period, as, seven years. See Inquest, Of
lands.
CONCUE,. 1. To go along together; to
CONDITIO. L. A stipulation, proviso,
co-exist: as, in saying that in malicious condition, q. v.
prosecution malice and want of probable
cause must concur. Conditio sine qua non. A condition
without which (a thing can) not (exist) ; an
Concurrent. Co-existing ; having effect,
operation, or validity at one and the same indispensable prerequisite.
Melior est conditio. See Delictum, In
time : as, a concurrent or concurrent — agree-
ments, covenants, or promises, consideration,
pari, etc.
Condition, l. state, status, predica-
jurisdiction, negligence, possession or seisin,
remedies, qq. v.
3. A restriction placed upon the use of a
ment.'
3. To entertain like views ; to agi-ee ; as, to
concur in an opinion, and concurring opin- thing.*
ion. Opposed to dissent. See Opinion, 3. Some quality annexed to real estate by vu--
CONDEMH. To pronounce wrong. tue of which it may be defeated, enlarged, or
1. To sentence ; to adjudge. created upon an uncertain event; also, a
Condemnation. A sentence or judgment quality annexed to a personal contract or
which condemns a person to do, give, or pay
The uncertain
agreement. ^ event itself ; and the clause,
something; or which declares that his claim
or pretensions are unfounded. in the instrument, which expresses the con-
tingency.
Condemnation money. Money which the
An estate upon condition is such that its
law sentences a party to pay ; ^ also, in ap-
peal bonds, the damages that may be existence depends upon the happening or not
awarded against the appellant, by judgment happening of some uncertain event, whereby
of the court.' the estate may be either originally created,
Bail above or bail to the action undertake that if or enlarged, or finally defeated.^
the defendant is condemned in the action he will pay An estate upon condition implied in law is
the costs and the condemnation, or else that they will.* where a grant of an estate has a condition
See Appeal, 2, Bond.
annexed to it inseparably, from its essence
3. To declare forfeited: as, to condemn
and constitution, although no condition is
merchandise offered for sale in violation of a
revenue law.
> See 1 Kent, 101; 3 id. 103; 3 Wall. 28, 170, 514, 603;
In Federal practice, proceedings In such cases are
5 id. 1, 28; 11 id. 268, 308; 106 U. S. 316.
in rem, against the thing as offending. Whence the Co. v. Cowles, 31 Ca). 217
title of cases: United States v. Chests of Tea, Boxes of "Lake Merced Water
Cigars, Gallons of Whiskey. See Res. (1866).
" See Dunlap v. Mobley, 71 Ala. 105 (1881).
• See Ayling v. Ki-amer, 133 Mass. 13 (1883), cases.
1 People V. Cummons, 56 Mich. 545 (1885), Camp- '[Selden v. I'ringle, 17 Barb. 465 (1854); Laberee t'.
beU, J. Carleton, 53 Me. 213 (1865).
" Lockwood V. Saffold, 1 Ga. 74 (1846). • 2 Bl Com. 152, 154, 840. See also 4 Kent, 152; Adams
3 Doe V. Daniels, 6 Blackf. 9 (1841); 107 U. S. 381-92. V Copper Co., 4 Hughes, 593-94 (1880); 31 Conn. 475;
39
* 3 Bl. Com. 391. Ga 207; 31 Mich. 49; 1 Nev. 53; 70 N. Y. 309.
 CONDITION 222 CONDITION

expressed in words ; as, that proper use shall the intention of the parties, as gathered from the
be made of a franctiise. . . An estate on whole instrument,^
A condition precedent must be literally observed; a
condition expressed in the grant itfeelf is condition subsequent, tending, as it does, to destroy
where an estate is granted with an- express the estate, is not favored, and is construed strictly. ^
qualification annexed, whereby the estate No one can take advantage of a " condition subse-
shall either commence, be enlarged, or de- quent" annexed to an estate in fee but the grantor or
his heir, or the successor of an artificial person; and
feated, upon performance or breach of such
if they do not see fit to assert their right to enforce a-
qualification or condition.! forfeiture on that ground, the title remains unimpaired
As respects realty, a "charge" is a devise with a in the grantee. . . In what manner the reserved
bequest out of the subject-matter; and a charge upon right of the grantor must be asserted depends upon
the devisee personally is an estate on condition.'' A the character of the grant. If it be a private grant,
" condition " is made by a grantor, and only he or his that right must be asserted by entry or its equivalent.
heir can take advantage o£ a breach. ^ A " covenant " If the grant be a public one, it must be asserted by
is made by both grantor and grantee. ' A " limitation " judicial proceedings authorized by law, the equivalent
ends the estate without entry or claim; and a stranger of an inquest of office at common law, or there must
may take advantage of the determination." be some legislative assertion of ownership of the prop-
Conditional. Subject to, or dependent erty on account of a breach of the condition:. ^
upon, a condition ; opposed to unconditional: Failure to perform a " condition precedent " bars
relief ; but equity will relieve against a forfeiture under
as, a conditional — contract, conyeyance, fee,
guaranty, indemnity, liability, obligation, a " condition subsequent " upon the principle of com-
pensation, when that principle can be applied, giving
pardon, sale, qq. v. damages, if damages should be given, and the amoimt
Words which create a condition are "provided," is ascertainable. . If a "condition subsequent"
" on account of," "if," and other words expressive of be possible at the time of making it, and becomes
the intention. "Upon condition " is appropriate, but afterward impossible to be complied^ with, by the act
does not of necessity create an estate upon condition.^ of God, the law, or the grantor, the estate of the
Condition precedent. Such condition grantee, being once vested, is not thereby divested,
as must happen or be performed before the but becomes absolute.*
estate can vest or be enlarged. Condition Where an act is to be performed by the plaintiff be-
fore the accruing of the defendant's liability under his
subsequent. A condition upon the failure contract, the plaintiff must prove either his perform-
or non-performance of which an estate al- ance of such condition precedent, or an offer to per-
ready vested may be defeated.' form itwhich the defendant rejected, or his readiness
Thus, if an estate for life be limited to A upon his to fulfill the condition until the defendant discharged
marriage with B, the marriage is a condition prece- him from so doing, or prevented the execution of the
dent. Examples of conditions subsequent are: a grant matter which the contract required him to perform.
of a fee-simple with a right to re-enter upon non-pay- . . Conditions precedent may be waived by the party
in whose favor they are made. Wherb the
' ment of the rent, reserved; an estate held upon the
condition that the grantee does not remarry, or con- conditions are dependent and of the essence of the con-
tinues to live at a certain place. tract, the performance of one depends upon the per-
formance of another, and the prior condition must be
A " condition precedent " is one which must happen
before either party becomes bound by the contract. first performed. In cases where either party may be
A " condition subsequent " is one which follows the compensated for a breach, »the conditions are mutual
performance of the contract, and operates to defeat and independent.*
and annul it upon subsequent failure of either party When a condition subsequent is broken, relief may
to comply with the condition. ^ be had upon equitable terms; but when the condition
Whether a qualification, restriction, or stipulation is a precedent one, and neither fulfilled nor waived, no
is a condition precedent or subsequent depends upon right or title vests, and equity can do nothing for the
party in default: as, where an assured is to pay the
1 2 Bl. Com: 152, 154, 340. premium before the assurer shall be bound."
2 See 4 Kent, 601; 12 Wheat. 498.
sSee 2 Bl. Cora. 165; 4 Kent, 122, 187; 21 Wall. 63; 3 ' Lowber v. Bangs, 2 Wall. 736, 746 (1864), cases; 70
Gray, 142;, 41 N. J. L. 76; 19 N. Y. 100. N. Y. 311; 2 Bl. Com. 156-37; 4 Kent, 130.
■"2 Coke, Litt. 70; 2 Pars. Contr. 31; 6 Barb. 386. = 2B1. Com. 154; 4Kent,125; 3Pet,374; 9Wheat.841.
«16 Me. 158; 3 Gray, 142; 5 Neb. 407. = Schulenberg v. Haniman, 31 Wall. 63 (1874), cases,
Field, J.
' Stanley v- Colt, 5 Wall. 165 (1866); Sohier v. Trinity
Church, 109 Mass. 19 (1871); Casey v. Casey, 55 Vt.,620 < Davis V. Gray, 16 Wall. 229 (1872), cases, Swayne, J.
(1883). 6 Jones V. United States, 98 U. S. 27-29 (1877), oases,
'2 Bl. Com. 1B4; Towle v. Remsen, 70 N. Y. 309 (1877). Clifford, J.; Lowber v. Bangs, 2 Wall. 738, 746 (1864),
« Story, Contr. §§40, 42-43; Jones v. United States, cases; Euch v. Rock Island, 97 U. S. 693, 696 (1878),
96 U. S. 27-29 (1877), cases; Eedman v. Mtna, Fire Ins. cases; The Tornado, 108 id. 852 (1883).
Co., 49 Wis. 438 (1880); 17 Nev. 415; 35 N. H. 450; 47 "Giddings v. Northwestern Mut. Life Ins. Co., 102
Barb. 262.
U. S. m (1880). See 2 Story, Eq. §§ 1302-11'.
 CONDONATION 223 CONFEDERATION

Repugnant conditions. Such condi- the remission, by one of the parties, of an offense
tions as tend to the subversion of the estate ; which the other has committed against the marriage,
on condition ot being afterward treated with conjugal
such as totally prohibit the alienation or use kindness. While the condition remains unbroken,
of property conveyed. remedy tor the condoned offense is barred. In oases
Conditions which prohibit alienations to particular of " connivance " (g. v.) no injury is done.'
persons, or for a limited period, or subject to particu- Condonation ot cruel treatment is conditioned upon
lar uses, are not subversive ot the estate : they do not the treatment ceasing.' See Divorce.
destroy or limit its alienable or inheritable character. CONDUCT. See Behavior ; Disorder, 2 ;
Hence, property may be conveyed in tee and yet be
Estoppel, Equitable.
exempted from use as a slaughter-house, soap-factory, A declaration of the result ot a popular election
distillery, livery-stable, tannery, machine-shop, or
place where intoxicating liquors are manufactured, may be included in power conferred upon the man-
agers to " conduct" the election. ^
sold, or stored.'
COIfFECTIONER. See Manutact-
Conditions are also distinguished as: af-
uree; Sunday.
firmative or positive, prescribing the doing of
Selling liquors by the drink is not part of the busi-
a positive act, and opposed to such as are ness of a confectionery, and is not covered by a
negative; as collateral, regarding some act " confectioner's " license *
incidental to another act; as compulsory, ex- CONTEDEIIACY.5 A league, or com-
pressly requiring the doing of an act; as con- pact ;a combination.
sistent, agreeing with each other or others, 1. An improper agreement or combina-
and opposed to such as are inconsistent; as tion alleged against defendants in equity:
copulative, for the doing of related things, whence "clause of confederacy" in a biU in
and opposed to such as are single, for the equity.
performance of one thing only ; as disjunc- 2. A (criminal) conspiracy," q. v.
tive, for the doing of one of several things ; 3. A political confederation, q. v.
as express, stated in express words, and op- CON'FEDERATION.5 A compact. An
posed to such as are implied, imposed by in- agreement between states or nations by
ference of law; as possible, performable, which they unite for mutual welfare.
however difficult, and opposed to such as are Confederation, Articles of. The in-
impossible, or not performable. strument under which the compact between
Although words in a deed or devise are suiHcient to the Thirteen States was formed.
create a condition, the breach of which would forfeit The full title was -'Articles of Confederation and
the estate, the courts lean against such a construction,
perpetual union between the States of New Hamp-
and hold that words which may be treated as a cove- shire," etc. The Articles were reported July 12, 1776;
nant or restriction do not amount to a condition.' recommended for adoption November 17, 1777; ratified
See After; Condonation; Contract; Defeasance;
by eight States July 9, 1778, and by the last State (Mary-
If; Performance; Promise; Provided; Representa- land) March 1, 1781. The First Congress thereunder
tion, 1; Sale: Term, 2; Trade; When. met March 2, 1781. The Articles continued in force to
COISDOIJ'ATIOTJ'.^ Forgiveness by a March 4, 1789, when the first Congress under the Con-
husband or a wife of a breach, in the other, stitution met.' See State, 3 (8).
of marital duty. Confederation of Southern States;
States of America. See
The free, voluntary, and full forgiveness Confederate
Government, De facto; Money, Lawful;
and remission of a matrimonial offense.''
Unless accompanied by that operation of the mind, Oath, Of office; State, 8 (2); War.
even cohabitation, without fraud or force, is insuffi-
cient to establish condonation.* 1 [2 Bish. Mar. & Div. §§ 33-34; 1 id. § 95 o. See also
A mere inference of law from proven facts. It is Morrison v. Morrison, 142 Mass. 382-65 (1886), oases;
23 Ark. 616; 23 Ga. 286; 73 111. 500; 34 Ind. 369; 60 id.
> Cowell V. Colorado Springs Co., 100 U. S. 57-^8 (1879), 258; 140 Mass. 528; 32 Miss. 289; 8 Greg. 824.
cases. Field, J. See Camp v. Cleary, 76 Va. 143 (1882), ' Rose V. Rose, 87 Ind. 481 (1882). See generally Ohio
oases; Case v. Dwire, 60 Iowa, 444 (1883), cases; Smith Law J., Aug. 23, 1884.
v.Barrie, 56 Mich. 317-80 (1885), cases; Munroe v. HaU, a Blake t). Walker, 23 S. C. B26 (1S8B).
97 N. C. 310 (1887). In wUls, see Webster v. Morris,
66 « New Orleans v. Jans, 34 La. An. 667 (1882).
Wis. 386-88 (1886), cases; 19 Cent. Law J. 183-26, 463-67 » L. con-fmderare, to unite by covenant: fcediia, a
(1884), cases; 30 Alb. Law J. 4-8 (1884), cases. league.
2 Adams v. Valentine, 33 F. E. 4 (1887), oases, Wal- « See State v. Crowley, 41 Wis. 884 (1876).
lace, J. v.
'See R. S. p. 7; 1 Story, Const. § 825; Owings
s L. condonare, to remit, pardon. 1 Bancrof t, Const. 8-118
Speed, 4 Wheat. 420 (1830);
* Betz V. Bets, 2 Robt. 696 (N. Y., 1864), Barbour, J. (1884).
 CONFESSIO CONFIRMATION
224

CONFESSIO. L. Acknowledgment; elsewhere than before a magistrate or in

admission ; confession. court; and embraces not only explicit and
Confessio facti. Admission of a fact. express confessions of crime, but all admis-
Confessio juris. Admission of the law — sions from which guilt may be implied.i
of the effect of a thing in law/ Naked confession. A confession uncor-
The latter is not received in evidence, for tlie party roborated byother proof of the corpus de-
may not Impw the legal effect of a thing, as of an in-
strument, i See Decree, Pro confesso; Igkoramce.
CONFESSIOlf. Acknowledgment; ad- Voluntary confession. The presump-
licti.^
mission. tion isthat all confessions are voluntary : free
1. In civil law, the admission of a fact as from promise or threat. The state of mind
true, existing, binding, or yalid. must be brought about by the accused's own
Confession and avoidance. The act or independent reasoning. ^
A confession, when the free prompting of a guilty
proceeding by which a party admits the conscience, unincited by hop© or fear, is evidence. It
truth of an allegation he proposes to answer, •is receivable although obtained by artifice, by liquor
and then states matter intended to avoid given, or under promise of some collateral good, or
the legal inference which may be drawn made to a physician, parent, or spiritual adviser. At
from the admission. common law, an attorney is the only protected con-
Some pleas of this sort are in justification or ex- fidant.*
The practice is to inquire of the witness whether the
cuse — show that the plaintiff nevei- had any right of prisoner had been told, in effect, that it would be
action, because the act charged was lawful; while
better for him to confess, or worse for him if he did
other pleas are in discharge — show that a right of not confess. The judge, exercising a legal discretion,
action once existed, but that it is released by some
and governed by extreme caution, receives or rejects
subsequent matter.'^ >See Avoid, 3; Color, 2; Mat-
ter, 3,New, the proposed proof. ° See further Accomplice; Admis-
sion, 2; Communication, Privileged, 1.
Confession of action. A plea confessing CONPESSIONAL. See Communication,
the complaint, in whole or in part.^ Privileged, 1.
An admission of a cause of action, as al- CONFIDENCE. See Communication;
leged in the declaration, to the extent of its
Credit ; Faith ; Fiduciart ; Trust, 1 ; Use, 3.
terms. < CONFINEMENT. See Prison.
Confession of judgment. A voluntary CONFIRMATION. Making firm what
submission to the jurisdiction of the court,
giving, by consent and without the service was before infirm.''
1. Affirmation ; ratifipation, q. v.
of process, what could [might] otherwise be 2. A secondary or derivative conveyance,
obtained by complaint, summons, and other
defined by Coke to be "a conveyance of an
formal proceedings.* See Attorney, War- estate or right in esse, whereby a voidable
rant of ; Cognovit.
estate is made sure and unavoidable, or
2. In criminal law, acknowledgment of
whereby a particular estate is increased."'
guilt.* 3. The judicial sanction of a court : as, the
Direct, indirect, or incidental confes-
confirmation of a sale.s
sion. An acknowledgment of criminal in- A decree of confirmation upon a judicial sale is a
tent, made like an "implied admission" judgment of the court, wjiich determines the rights of
the parties. Before confirmation, the whole proceed-
(q.Judicial cases."
V.) in civU confession. A confession
' [1 Greenl. Ev. § 216; 1 Cliff. 23; 28 Mo. 230,
made before a magistrate or in a court, in a 1 Greenl. Ev. § 217.
the course of legal proceedings. Extra- 3 Commonwealth v. Sego, 125 Mass. 213 (1878); Speer
judicial confession. Such as is made V. State, 4 Tex. Ap. 479-86 (1878), cases; People v.
McGloiu, 91 N. Y. 247 (1883).
1 1 Greenl. Ev, §§ 96, 203. « 1 Greenl. Ev. ch. XII.
asteph. PI. 73, 79, 229; 1 Chitty, PI, 540; 2 id. 6U; 3 5 1 Greenl. Ev. § 219. And see Hopt v. Utah, 110 U. S. '
Bl. Com. 310; 31 Conn. 177. 584-87 (1884), cases; 4 Bl. Com. 357; 1 B. & H. Lead.
' [3 Bl. Com. 303, 3J7. Or. Cas, 112, note; 59 Cal. 457; 68 Ga. 663; 34 La. An.
iHackett v. Railroad Co., 35 N. H.,397 (1857). 17-18; 89 N. C. 629.
' First Nat. Bank of Canandaiqua v. Garlinghouse, • [Coke, Litt. 295.
53 Barb. 619 (1868). '2 Bl. Cora. 325; 1 Inst. 295; Litt. §§ 515, 516, 531;
« 1 Greenl. Ev. § 170. Langdeau v.. Hanes, 21 Wall. 680 (1874).
'IGreenl. Ev. §214 ' Langyher v. Patterson, 77 Va. 473 (1883).
 CONFISCATE 225 CONFORMITY

tag is in fieri, and under the control of the court. seizure and condemnation of the life-estate, with the
fee left m the heirs.'
Until confli-matiou' the accepted bidder is not regarded
as the purchaser. Whether the sale will be confirmed The act of 1801 made property a lawful subject of
depends upon the circumstances of each case, and the capture and prize. The object of the act of 1862 was
sound discretion of the court in view of fairness, pru- to confiscate the property of traitors by way of pun-
dence, and the rights of all concerned.' ishment for countenancing the rebellion.^
CONriSCATE.2 To transfer property The act of 1803, generally known as the Confisca-
from private to public use ; to forfeit prop- tion Act, and the joint resolution of the same day
explanatory thereof, must be construed together. In
erty to the prince or state, s a sale of property thereimder, all that could be sold
Usage tends to confine the word to seizures of
was a right to the property seized, terminating with
property by way of punishment of a breach of alle- the life of the offender. Such sale does not affect the
giance, or in the exercise of rights given by the laws rights of a mortgagee in favor of a third person. The
of war.* property goes to the Government or to the purchaser
" Confiscation " is the act of the sovereign against
cum onere.'
a rebellious subject. " Condemnation " as prize is the Debts and credits, which are intangible, are no-
act of a belligerent against another belligerent. Con- where confiscated.' See Attaindee; Pardon; Pro-
fiscation may be effected by such means, summary or hibition, 2;War.
arbitrary, as the sovereign, expressing its will through
lawful channels, may please to adopt. Condemnation CONFLAGRATION. See Fiee, Depart-
ment; Necessity; Take, 8.
as prize can only be made in accordance with prin-
ciples of law recognized in the common jurisprudence CONFLICT. Striking together ; meeting
of the world. Both are proceedings in rem, but con- in collision; opposition, as of authority, in-
fiscation recognizes the title of the original owner to
terest, jurisdiction, titles.
the property, while in prize the tenure of the prop-
erty is qualified, provisional, and destitute of absolute Conflict of laws. Opposition of laws
ownership.* upon the same object; whether of the same
Confiscation Acts of 1861 and 1862. or of different jurisdictions.
The act of August 6, 1861, and the act of As between different States, there is more or less
disagreement in the laws relating to marriage and di-
July 17, 1862.6 vorce, legitimacy, pending suits, judgments, mtestate
Made in exercise of the war powers of the Govern- estates, assignments by insolvents, bills and notes,
ment. The right to make such laws exists alike in
remedies, and some other subjects*
civil and foreign war. Congress determmes what The laws of each State affect all persons, property,
property shall be taken.' contracts, acts and transactions within its boundaries.
The proceedings are justified as an exercise of bel-
ligerent rights against a public enemy, and are not a Foreign laws are allowed to bind foreign-made trans-
actions unless they injuriously affect citizens, violate
punishment for treason. Hence, the pardon of an act
of treason will not restore rights of property pre- statutes, or are opposed to good morals or public pol-
icy. Realty is governed by the law of the place where
viously condemned. ^
The act of 1862, as explamed by a resolution of the it is situated; personalty, by the law of the owner's
same date, provided that forfeiture of realty should See Comity; Commerce; Law, Foreign; Marshal,
domicil.*
not extend beyond the life of the offender. Passing
this act was an exercise of war powers, not a criminal 1, (2); Place, Of contract, delivery, payment; Pbop-
erty; Repeal.
proceeding. » Its design was to strengthen the Govern-
ment and to enfeeble the enemy by taking from the CONFORMITY. Agreement; adjust-
ment.
adherents of that enemy the power to use their prop-
erty in aid of the hostile cause. It provided for the A bill in equity filed by an executor or
administrator, when he finds the affairs of
the estate so much involved that he cannot
'Brook r.Rice, 27 Gratt. 815-16(1876), cases; Terry
safely administer the estate except under the
n. Coles's Executor, 80 Va. 703-7 (1885), cases.
' L. conflscare, to transfer to the public purse : flscus,
& purse.
5 Ware v. Hylton, 3 Dall. 334 (1796); 12 Mo. Ap. 234. 1 Wallach v. Van Riswich, 92 U. S. 207 (1875); Waples
•See 1 Bl. Com. 299; 1 Kent, 52. V. Hays, 108 id. 8 (1882).
'Winchester u. United States, 14 Ct. CI. 48 (1879), ' Kirk V. Lynd, 106 U. S. 319 (1882) ; Phoenix Bank v.
Davis, J. Risley, 111 id. 126 (1884).
« 12 St. L. 319, 590. a Shields r. Schiff, 124 U. S. 336 (1888), Bradley, J.;
'Miller v. United States, U Wall. 308, 312-18 (1870); Avegno v. Schmidt, 35 La. An. 686 (1883): 113 U. S. 300
Alexander's Cotton, 2 id. 419 (1864).
a Semmes v. United States, 91 U. S. 27 (1875). (1885).
* 1 Kent, 64-63. See further 4 Cranch, 415 ; 6 ■ id. 286 ;
» Bigelow V. Forrest, 9 Wall. 350, 338 (1869); Miller v. 8 id 13-3 128; 13 Wall. 391; 15 id. 691; 20 id. 92; 2 Dill.
United States, 11 id. 304, 868 (1870); Day v. Micou, 18
id. 160 (1873). , 269; 111 Conf.
555;' Ch^e, Dec.Wharton 53; 96 id. 176.
123,Laws.
U. S. of
» See Story, ,
(15)
 CONFRONT CONGRESS
326

direction of court, is called a " bill of con- man willfully and wrongfully mixes his own goods
with those of another owner, so as to render them in-
formity." 1 distinguishable, hewill not be entitled to his propor-
The suit is against the creditors generally, for the
purpose of having all their claims adjusted, and a tion, or any part, of the property ; certainly not, unless
the goods of both o^vne^s are of the same quality and
final decree made settling the order and payment of value. Such intermixture is a fraud. And so, if a
the assets. ^
wrong-doer confounds his own goods with goods which
So called because the plaintiff undertakes to " con- he suspects may belong to another, and does this with
form "to the decree, or because the creditors are com- intent to mislead or deceive that other, and embarrass
pelled to conform thereto, i
him in obtaining his right, the effect must be the same.
CONFRONT. To bring face to face. . . Even where the articles are of the same kind
The constitutional provision that the accused shall
and value, the wronged party has a right to the pos-
be " confronted with the witnesses against him " session of the entire aggregate, leaving the wrong-doer
means that the witnesses on the part of the State shall
' to reclaim his own, if he can identify it, or to demand
be personally present when the accused is on trial; ^ his proportional part. So held where bales of cotton,
or that they shall be examined in his presence, and be of different weight and grade, were purposely inter-
subject to cross-examination by him.^ mixed to render identification of particular bales im-
If witnesses are absent by the procurement of the
accused, competent evidence of the testimony they practicable.'
gave on a previous trial will be received.*
Confusion of rights or titles. In civil
(■ A person accused of a crime is deprived of his right law, when titles to the same property unite
of appearing in person and of being confronted with in the same person.
the witnesses against him if the jury view the locus " Confusion " in the civil law is synonymous with
in quo without his presence." See Declaration, 1, "merger" in the common law.*
Dying. fully.
CONGEABLE.3 Permissible ; done law-
CONFUSION. Mixing, intermixture;
intermingling, blending; confounding. " If his entry were congeable, it will be considered
Confusion of boundaries. Where the as limited by his right." *
boundary lines of different titles are con- CONGREGATION. An assemblage or
flicting, disputed, or uncertain; also, that union of persons for a religious purpose.'
A volimtaiy association of individuals or families,
branch of equity jurisprudence which ascer-
united for the purpose of having a common place of
tains such boundaries, q. v.
worship, and to provide a proper teacher to instruct
Confusion of debts. The concurrence
them in religious doctrines and- duties, and to admin-
of two adverse rights to the same thing in ister the ordinances.' See Chubch.
one and the same person.^ CONGRESS. See CoNSTiTUTiorr.
Confusion of goods. Intermixture of "All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall
the goods of different owners so that the sep-
consist of a Senate and House of Eepresentatives." '
arate properties are indistinguishable.
" The House of Bepresentatives shall be com-
Applies to the mixing of chattels of one and the posed of Members chosen every second Tear by the
same general description. "Accession" (q. v.) is
where various materials are united in one product.^ iThe Idaho, 93 U. S. 586-86 (1876), cases. Strong, J.
He who causes a confusion of goods must hear See also Jewett v. Dringer, 30 N. J. E. 291-311 (1878),
whatever loss or disadvantage results.
The general rule that governs cases of intermixture cases; Queen v. Wemwag,~97 N. C. 363 (1887); 11 WaU.
369; 21 id. 64; 1 Saw. 306; 14 Ala. 695; 44 id. 609; 31 111.
of property has many exceptions. It applies in no 882; 36 id. 160; 12 Me. 243; 56 id. 566; 8 Md. 301; 21 Pick.
case where the goods intermingled remain capable of 298; 6 Gray, 134; 14 Allen, 376; 107 Mass. 123; 10 Mich.
identification, nor where they are of the same quality 433; 22 id. 311; 31 id. 215; 23 Minn. 88; 12 Mo. Ap. 284-
or value ; as where guineas are mingled, or grain of the 85; 33 N. H. 433; 39 id. 557; 57 id. 514; 10 N. T. 213; 24
same quality. Nor does the rule apply where the in- id. 596; 6 HiU, 461; 24 Pa. 246; 20 Wis. 615; 20 Vt. 333;
termixture isaccidental, or even Intentional, if not 2 El. Com. 405; 2 Kent, 365.
wrongful. All authorities agree, however, that if a » Palmer v. Bumside, 1 Woods, 182 (1871).
' C8n'-ge-able. F. congi, leave: L. commeare, to go
> 1 Story, Eq. §§ 544-45. and come.
= WestfaU II. Madison Co., 62 Iowa, 427 (1883). « Eicard v. Williams, 7 Wheat. 107 (1822), Story, J.;
' Howser v. Commonwealth, 51 Pa. 388 (1865). Litt. § 279.
'Reynolds v. United States, 98 U. S. 158-60 (1878), » [Eunkel v. Winemiller, 4 H. & M'H. 452 (1799).
cases; United States v. Angell, 11 F. E. 43 (1881); 34 ' Baptist Church of Hartford v. Witherall, 3 Paige,
La. An. 121. Ch. 301 (1832), Walworth, Ch.
' People V. Lowrey, 70 Cal. 193 (1886). ' Constitution, Art. I, § 1. On the powers of Con-
« Woods V. Eidley, 11 Humph. 198 (1840); Story, Prom. gress, see 2 Bancroft, Const. VH, VTTT; ib. abr. ed.
Notes, § 439. 292-325 (1884),— summarizes the discussions in the orig-
' 1 Schouler, Pers. Prop. 41, 40-64. inal constitutional convention.
 CONGRESS 327 CONGRESS

People of the several States, and the Electors in each ness ; but a smaller Number may adjourn from day to
State shall have the Qualifications requisite for Elect- day, and may be authorized to compel the Attendance
ors of the most numerous Branch of the State Legisla- of absent Members, in such Manner, and under such
hire." 1 Penalties as each House may provide." •
" No Person shall be a Representative who shall not " Each House may determine the Rules of its Pro-
have attained to the Age of twenty-flve Years, and ceedings, punish its Members for disorderly Behavior,
been seven Years a Citizen of the United States, and and, with the Concurrence of two-thirds, expel a
who shall not, when elected, be an Inhabitant of that
State in* which he shall be chosen." * Member."
" Each House ^ shall keep a Journal of its Proceed-
"Representatives . . shall be apportioned ings, and from time to time publish the same, except-
among the several States . . . according to their ing such Parts as may in their Judgment require
respective Numbei-s . . . excluding Indians not Secrecy; and the Yeas and Nays of the Members of
taxed. . ." 3 each House on any question shall, at the Desire of
"When vacancies happen in the Representation one-fifth of those Present, be entered on the Joiu:-
from any State, the Executive Authority thereof shall
issue Writs of Election to fill such Vacancies." * "Neither House, during the Session of Congress,
"The House of Representatives shall chuse their shall, without the Consent of the other, adjourn for
Speaker and other Officers. . " ' more than three days, nor to any other Place than
nal." '
" The Senate shall be composed of two Senators that in which the two Houses shall be sitting,"*
from each State chosen by the Legislature thereof, "The Senators and Representatives shall receive a
for six years; and each Senator shall have one vote." * Compensation tor their Services, to be ascertained by
One-third of the Seuatore are chosen every second Law, and paid out of the Treasury of the United
year. " If Vacancies happen by Resignation or other- States. They sliall in all Cases, except Treason, Fel-
wise, during the Recess of the Legislature of any ony and Breach of the Peace, be privileged from Ar-
State, the Executive thereof may make temporary rest during .their Attendance at the Session of their
Appointments until the next Meeting of the Legisla- respective Houses, and in going to aftd returning from
ture, which shall then fill such Vacancies." ^ the same; and for any Speech or Debate in either
" No Person shall be a Senator who shall not have House, they shall not be questioned in any other
attained the Age of thirty Years, and been nine Years
a Citizen of the United States, and who shall not, when "No Senator or Representative shall, during the
elected, be an Inhabitant of that State for which he Time for which he was elected, be appointed to any
Place." '
shall be chosen." ^ civil Office under the Authority of the United States,
" The Vice President . . . shall be President of which shall have been created, or the Emoluments
the Senate, but shall have no Vote, unless they be whereof shall have been encreased during such time;
and no Person holding any office under the United
equally divided." "
"The Senate shall chuse their other OfBcers, and States, shall be a member of either House during his
also a President pro tempore, in the Absence of the
Vice President, or when he shall exercise the Office of Continuance in Office." *
" All Bills for raising Revenue shall originate in the
President of the United States." " House of Representatives; but the Senate may pro-
" The Times, Places and Manner of holding Elec- pose or concur in Amendments as on other Bills." *
tions for Senators and Representatives, shall be pre- It is provided by statute that Representatives shall
scribed ineach State by the Legislature thereof; but be chosen in single districts;^ and that the elections
the Congress may at any time by Law make or alter shall take place on the Tuesday next after the first
such Regulations, except as to the Places of chusing Monday of November.' Vacancies are filled as may
Senators." " be provided by State laws.'" Votes must be by written
" The Congress shall assemble at least once in every or printed ballot: other votes are of no effect."
Year, and such Meeting shall be on the first Monday For the election of Senators it is provided that the
in December, unless they shall by Law appoint a dif- legislature of each State, chosen next preceding the
ferent Day." " expiration of the time for which any Senator was
" Each House shall be the Judge of the Elections, elected to represent such State m Congress, shaU, on
Returns and Qualifications of its own Members, and a the second Tuesday after the meeting and organiza-
Majority of each shall constitute a Quorum to do Busi- tion thereof, proceed to elect a Senator." At least one
Art.I, §
* Constitution, Art. I, § 2, cl. 1. " Constitution, Art. I, § 5, cl. 1.
^ Constitution, Art. I, § 2, cl. 2. 2 Constitution, Art. I, § 5, cl. 8.
' Constitution, Art. I, § 2, cl. 3. » Constitution, Art. I, § 5, cl. 3.
* Constitution, Art. I, § 2, cl. 4. * Constitution, Art. I, § 5, cl. 4.
" Constitution, Art. I, § 2, cl. 5. » Constitution, Art. I, § 6, cl. 1.
' Constitution, Art. L§ 3, cl. 1. » Constitution, Art. I, § 6, cl. 2.
' Constitution, Art. I, § 3, cl. 2. ' Constitution, Art. I, § 7, cl. 1.
* Constitution, Art. I, § 3, cl. 3. «R. S. § 23: Acts 2 Feb., 30 May, 1872.
" Constitution, Art. I, § 3, cl. 4. • R. S. § 25: Acts 2 Feb., 1S72, 3 March, 1875.
>» Constitution, Art. I, § 3, cl. 5. " E. S. § 26: Act 2 Feb., 1872.
'1 Constitution, iiR. S. § 37: Acts 28 Feb., 1871, 30 May, 1872; 76 Mo. 148.
Art. I, § 4, cl. 1.
>2 Constitution, 4, cl. 2. ."E. S. 5 14: Act 25 July, 1866.
 CONJUNCTIVE 238 CONSANGUINITY

vote must be taken every day, during the session, until joined to it by a switch, either at its terminus or wher-
a person is chosen.' An existing vacancy is filled at ever along its line they meet or converge, and the
the same time and in the same way; ' and a vacancy right is given to make such connection, whether it bo
occurring during the session is filled by election, the voluntarily granted or not.' See Commerce.
proceedings for which are had on the second Tuesday 2. Any relation by which one society is
after the legislature has organized and has had notice
linked or united to another.2
of the vacancy. 3
When Congress convenes, the president of the Sen- 3. " Connections " is more vague than " re-
ate administers the oath of ofiice to its members; ^ lations." Inpopular phrase, a wife's relations
and takes charge of the organization. The clerk of are her husband's connections; but connec-
the preceding House of Representatives makes a roll tions, unless they are also relations, never
of the Representatives-elect, and places thereon the
names of those persons whose credentials show that take by the statute of distributions.^ See
Relation, 3.
they were regularly elected in accordance with the
law.5 If the clerk cannot serve, from sickness, ab- 4. " Guilty connection,'' applied to a man
sence, etc., the sergeant-at-arms of the preceding and a woman, imports carnal connection.*
House performs this duty." CONNIVANCE.5 Intentional failure or
In 1866 the salary of members of Congress was
fixed at $5,000, and mileage, by the most usual route, at forbearance to see or actually know that a
twenty cents a mile. In 1873 the salary was raised to tort or offense is being committed ; willful
$7,600; and in 1874 reduced to $5,000.' neglect to oppose or prevent; specifically,
See further, as to powers, such subjects as Act, 3;
assent or indifference, by a husband, to im-
Bankruptcy; Census; Commerce; Coin; Confedera-
tion; Contempt, 2; Copyright; Courts, United States; moral behavior by his wife.
Duties; Electoral; Frank; Impeach, 4; Journal; It has been repeatedly held, under 20 and 21 Vict.
Land, Public; Lodfey; Marque; Naturalize; Oath, Of (1857), c. 66, and similar statutes in this country, that a
office; Patent, 2; PiRAcr, 1; Post-office; President; husband's connivance at his wife's prostitution bars
subsequent complaint or cause of action on his part.
RfivENUE; Sweeping Clause; Tender, 2, Legal; Ten- The connivance ne^d not be active: It is sufficient if it
ure, Of office; Territory, 2; 'Treaty; Veto; War; be made to appear that there has been a course of
Weights; Welfare; Yeas and Nays.
criminal conduct of which he actually was or must
CONJUNCTIVE. See Disjunctive.
have been cognizant. Total indifference may justify
CONJUEATIOlf. See Witchcraft. inference of original consent.
CONNECTING. See Connection, 1. It has also been held that if he once consents to her
CONNECTION. 1. "Railroad connec- fall from virtue he cannot complain of any other act
naturally resulting from such fall; but that doctrine
tion "means either such a union of teacks as
carried too far would deprive a man of all hope, how-
to admit the passage of cars from one road to ever repentant he may be, and however he may strive
another, or such intersection of roads as to to win his wife to repentance, l^o authority decides
admit the convenient interchange of freight that, under all circumstances, connivance at one act is
an absolute bar to a divorce for a prior act as to which
and passengers.8
The word conveys no implication of a right to con- consent was not given; expressly or by implication."
To be a bar to a decree for divorce the fact must
nect business with business."
appear that the libelant either desired and intended, or
The " connections " of a steamer, referred to in a,
policy of insurance, may refer to regular connections at least was willing, that the libelee should err. " A
corrupt intention," it has been said, " is necessary to
only.'"
Connecting line. In the sense of the Georgia constitute eonnivance." '
act of 1874, is where any railroad at its terminus, or See Collusion; Condonation; Crime, Recriminate;
Divorce; Volo, Volenti, etc.
any intermediate point along its line, joins another, or
where two railroads have the same teiininus; or where CONSAiraUINITY.s The connection
a railroad is adjacent to another and capable of being or relation of persons descended from the

' R. S. 1 15: Act 25 July, 1866. same stock or common ancestor ; " blood-rela-
tionship. Opposed, affinity, q. v.
»R. S. § 16: Act 26 July, 1866.
• R. S. S 17: Act 25 July, 1866. 1 Logan V. The Central R. Co., 74 Ga. 684, 693 (1885).
«R. S. § 28; Act 1 June, 1798. i" [Allison V. Smith, 16 Mich. 433 (1868).
«R. S. § 31: Acts 21 Feb., 1867, 3 March, 1863. s Storer v. Wheattey, 1 Pa. 507 (1845), Gibson, C. J.
•R. S. §§ 32-33: Act 21 Feb., 1867. 4 State V. Georgia, 7 Ired. L. 324 (1847).
' R. S. § 35: Act 26 July, 1866, 8 Mar., 1873, 20 Jan., 1874. ^ L. con-nivere, to close the eyes, wink at.
8 Philadelphia, &c. R. Co. v, Catawissa R. Co., 53 Pa. ' Morrison v. Mon-ison, 142 Mass. 363-65 (1886), cases.
20;59 (1866); 60Md. 269. ' Robbins v. Robbius, 140 Mass. 530-31 (1886), eases.
• Atchison, &c. R. Co. v. Denver, &c. R. Co., 110 U. S. See also 2 Bishop, Mar. & D. ^ 17; 34 Am. Law Reg.
676-79 (1884). 98-100 (1886), cases.
1" Schroeder v. Schweizer Lloyd Mar. Ins. Co., 60 Cal. =»2B1.
L. consanguineus: con, together; sanguis, blood.
Com. 202.
478 (1883).
 CONSCIENCE CONSENSUS
229

ConsangTiinei. Blood relations. Conscious. The expression, in a charge,

Consanguineal; consanguineous. Of ' ' conscious of what he (a prisoner alleged
the same blood or ancestor. to be insane) was doing," refers to the real
The subject is of importance in the law of inherit- nature, the true character, of the act as a
ance and marriage.
crime, not to the mere act itself.'
Lineal consanguinity. Subsists be- Conscience of the court. To "inform
tween persons of whom one is descended in a
the conscience of the court " is to furnish a
direct line from the other. Collateral con- court such data as will enable it to decide a
sanguinity. Subsists between persons who matter discreetly and equitably.
descend from the same stock or ancestor, but Thus, the verdict of a jury out of chancery is in-
not one from the other, i tended to inform the conscience of the chancellor."
The common ancestor is the stirps or root, the Conscience, court of. The title of a
stirpes, trunk or common stock, whence the relations court for the recovery of debts not exceeding
branch out.'
The method of computing degrees in the canon forty shillings, -formerly existing in some
law, adopted into the common law, is, to begin at the districts of England, as, in London, for the
common ancestor (propositus) and reckon downward : benefit of trade.
and in whatever degree the two persons or the most Examinations were summary, on the oath of the
remote of them is distant from the common ancestor, parties and witnesses. Such order was made as seemed
that is the degree in which they are related. . . consonant with equity and conscience. In 1846 juris- ,
The method in the civil law is to coimt upward, from diction was transferred to the county courts.'
either of the persons related, to the common stock,
and then downward to the other, reckoning a degree Conscience, rights of. The constitu-
tional declaration that "no human authority
for each person both ascending and descending. = can control or interfere with the rights of
The canonists take the number of degrees in the
longest line; the civilians, the sum of the degrees in conscience," refers to the right to worship
both lines.3 the Supreme Being according to the dictates
The canon law rule prevails in the United States. of the heart : to adopt any creed or hold any
See Ancestor; Descent; Ikcest.
CONSCIENCE. The moral sense; the opinion whatever on the subject of religion ;
and to do, or to forbear to do. any act, for
sense of right and justice.
There are many cases against natural justice which conscience sake, the doing or forbearing from
are left wholly to the conscience of the party, and are which is not prejudicial to the public weal.*
on the
without redress, equitable or legal.' Where liberty of conscience would impinge
Human laws are not so perfect as the dictates of paramount right of the public it ought to be re-
strained. .. There are few things, however simple,
conscience, and the sphere of morality is more en-
larged than the limits of civil jurisdiction. There are that stand indifferent m the view of all the sects.*
" The constitution of this State secures freedom of
many duties, belonging to the class called " imperfect
obligations," which are binding on conscience, but conscience and equality of religious right. No man
which human laws do not and cannot undertake di- can be coerced to profess any forni of religious belief
rectly to enforce. But when the aid of a court of or to practice any peculiar mode of worship, in pref-
erence to another. . . Beyond this, conscientious
equity is sought to carry into execution such a con-
tract, then the principles of ethics have a more ex- doctrines and practices can claim no immunity from
tensive sway.' See Right, 1; Faith. the operation of general laws made to promote the
Conscionable. In accord with strict hon- welfare of the whole people." . "So long iis no
attempt is made to force upon others the adoption of
esty and justice: as, a conscionable appraise- a belief, so long is conscience left in the enjoyment of
ment or inventory of the articles of a dece-
its natural right of individual decision." «
dent's estate. TJneonseionablo. Contrary See further Blasphemy; Ecjcity; Holiday; Eeliq-
-i fair-minded ion: Sunday.
to probity, fair-dealing, or what doing: as, an See Consent.
man would do or refrain from CONSENSUAL.
unconscionable contract or bavgain, q. v. CONS ENSU S. L. Perceiving or feeling

Conscionable is an iU-contrived word: from con- alike: agi-eement; consent.

science-able, orconscible (not now in use)." Consensus facit legem. Consent makes
in
1 [2 Bl. Com. 203-4; 45 Pa. 432. the law : the terms of a contract, lawful
■ s 2 Bl. Com. 803-7. 1 Brown v. Commonwealth, T8 Pa. 128 (1876).
' 4 Kent, 412; 2 Coke, Litt. *158; 1 Williams, Er. 364; 2 Watt V. Starke, 101 U. S. £52 (1879).
45 Fa. 432-33. » See 3 Bl. Com. 81.
* 1 Story, Eq. §§ 14, 2. • Commonw ealth ■.. Lesher, 17 S. & E. 160 (1827),
(Jibson, C. J. „ „ ,
0 2 Kent, 490; 1 Story, Eq. § 206; 1 Johns. Ch. 630.
• Skeat,Etym. Diet. J.
a Specht V. Commonwealth, 8 Pa. 322 (1848), Bell,
 CONSENT 230 CONSERVATOR

its purposes, constitute the law as between accompanied with deliberation. . . Hence, if con-
the parties. sent is obtained by meditated imposition, circumven-
tion, surprise, or undue influence, it is to be treated as
Consensus, non concutaitus, faeit mat- a delusion, and not as a deliberate and free act of the
rimonium. Consent, not intercourse, cre- mind. . . Upon thfs groimd the acts of a person
ates marriage. non compos mentis are invalid.'
Consensus tollit errorem. Consent re- Consent rule. See Ejectment.
moves error : the effect of a mistake is obvi- Consensual. 1. Formed by mere consent.
ated or waived by concurrence. In civil law, a contract of sale is consen-
Applies to an irregularity or a matter of mere form sual; not so a contract of loan. In the case
in procedure. A defect in substance, pleaded over, is of a sale, upon consent given, the parties
still demurrable. 1
Also applies to volimtary payments of illegal exac- have reciprocal actions ; in the case of a loan,
tions, where recovery could have been prevented.^ there is no action till the thing is delivered.^
Qui tacet consentire videtur. He who 3. In the sense of resting upon mere con-
is silent is regarded as consenting: silence sent, all contracts, except marriage, may be
gives consent. said to be consensual.
A man who is fully aware of what is being done See Acquiescence; Age; Decree; Duress; Ratifi-
against his interest cannot remain passive and after- cation.
ward resist the disadvantage his silence has caused. ^ CONSEQUENCES. Persons of sound
Nor can a person complain of the effect of words ut- mind are held to intend whatever are the
tered in his presence, when he sliould have denied
their truth. 4 natural and necessary consequences of their
The maxim is to be construed as applying only to acts : they are supposed to know what these
those cases where the circumstances are such that a consequences will be.
party is fairly called upon to deny or to admit his lia- Experience has shown the rule to be a sound one,
bility. But if silence may be interpreted as assent and one safe to be applied in criminal as well as in
where a proposition is made to one which he is bound civil cases. Exceptions to it undoubtedly arise, as
to deny or admit, so also it may be if he is silent in the where the consequences likely to flow from the act are
face of facts which fairly call upon him to speak.* not matters of common knowledge, or where the act
See E.STOPPEI,; Silence. or the consequence is attended by circumstances tend-
CONSENT. Agreement of mind ; con- ing to rebut the ordinary probative force of the act or
currence of wills; approval. Compare As- to exculpate the intent of the agent.*
The law does not undertake to charge a person with
sent; Consensus. all the possible consequences of a wrongful act, but
An agreement of the mind to what is pro- only with its probable and natural result; otherwise
posed or stated by another.6 the punishment would often be disproportioned to the
The synonym of assent, acquiescence, con- wrong, thereby impeding commerce and the ordinary
business of life, and rendering the rule impracticable.
ouiTence ; agreement or harmony of opinion Although the damages may arise remotely out of the
or sentiment.^ cause of action, or be, to some extent, connected with
Implies assent to some proposition submitted. In it, yet if they do not flow naturally from it, or could
cases of contract, means the concurrence of wills. not, in the ordinary course of events, have been
Supposes a physical power to act, a moral power of expected to arise from it, they are not sufflciently
acting, and a serious, determined, and free use of these proximate to authorize a recovery.* See Cause, 1;
powers.^ Deliberation; Intent; Negligence.
The theory of the law in regard to acts done and
Consequential. See CasEi 3 ; Damages.
contracts made by parties, affecting their rights, is,
that in all cases there must be a free and full consent CONSERVATOE. One who preserves,
to bind the parties. Consent is an act of the reason, or has the charge of a matter or thing, as, of
the peace, g.yiu.
' See Eogers v. Cruger, 7 Johns. •Oil (1808); Morrison In Connecticut and Illinois, the committee
V. Underwood, 5 Cush. 55 (1849); Cushing v. Worriok, of a lunatic or distracted person.^
9 Gray, 386 (1857); Wilkinson's Appeal, 65 Pa. 190 (1870).
-*-
» Chicago & Northwestern E. Co. v. United States, ' 1 Story, Eq. §§ ^22-83.
104 U. S. 687 (1881). = See Hare, Couti'acts, 85-86.
' 3 See 99 U. S. 581; 80 Conn. 98; 41 N. H. 465; 9 Barb. s Clarion Bank v. Jones, 21 Wall. 337 (1874), Clif-
17; 2 Pars. Contr. 759. ford, J. See also .-teynolds v. United States, 98 U. S.
4 1 Greenl. Ev. § 197. 167 (1878); 5 Cush. £lo5; 4 Bl. Com. 197.
1 Day V. Caton, 119 Mass. 515-16 (1876), cases. * Smith V. Western Union Tel. Co., 83 Ky. 115 (1885).
" Plummer v. Commonwealth, 1 Bush, 78 (1866). s Ti-eat V. Peck, 5 ponn. *380 (1824); Hutchins v. John-
' Clem V. State, 38 Ind. 431 (1870). son, 12 id. 376 (1837); Nuetzel v. Nuetzel, 13 Bradw. 512
8 Howell V. McCrie, 36 Kan. 644 (1887), Simpson, C. 1 (1883).
 CONSIDERATION 231
CONSIDERATION

The duties of a conservator of the estate of a ward Void for want of consideration are: a promise to
are defined, in a general way, by statute. He acts in- make a gift, the promisee surrendering nothing; a
dependently ofthe ward, and is alone responsible for warranty given after a sale; a promise to pay for un-
his acts. Debts incurred by the ward prior to t^e ap- solicited past services; a promise to pay toward a
pointment ofthe conservator remain claims against religious or charitable object, when purely gratuitous;
the ward alone.' promises to pay debts that have been released.'
COIfSIDERATION.^ 1. Deliberation, Any damage to another, or suspension or forbear-
mature reflection. ance, isa foundation for an undertaking, and will
make it binding; though no actual benefit accrues to
" It is considered " is equivalent to " it is adjudged " the party undertaking."
by the oom-t." It is not absolutely necessary that a benefit should
The corresponding Latin formula is consideratum
accrue to the person making the promise. It sufSces
est per cuHam. It imports that a Judgment is the act
of the law, pronounced by the court, after due delib- that something valuable fiows fi-om the person to
eration and inquiry.* whom it is made; and that the promise is the induce-
ment to the transaction. In the case of a letter of
The phrase is not an essential part of a judgment
in a criminal case.* credit given by A to B, the person who, on the faith of
2. That which the party to whom a prom- that letter, ti-usts B, has a remedy against A although
no benefit accrued to him.*
ise is made does or agrees to do in exchange Damage to the promisee constitutes as good a con-
for the promise. 6 sideration asbenefit to the promisor.*
The reason which moves a party to enter Any benefit, delay, or loss to either party.
into a contract. . . The civilians hold that More fully, either a benefit to the party
in all contracts there must be something promising, or some trouble or prejudice to
given in exchange, something that is mutual the party to whom the promise is made.'
or reciprocal. This thing, which is the price If there is a benefit to the defendant or a loss to the
plaintiff consequent upon and directly resulting from
or motive of the contract, is called the consid-
the defendant's promise in behalf of the plaintiff,
eration.^ there is a sufiftcient consideration moving from the
Something esteemed in law as of value in plaintiff to enable him to maintain an action upon the
exchange for which a promise is made.* promise to recover compensation.*
The '* motive " for entering into a contract and the A valuable consideration may consist either
"consideration" of the contract are not the same. in some right, interest, profit, or benefit ac-
Nothing is consideration that is not regarded as such
cruing to the one party, or some forbearance,
by both parties. It is the price volimtarily paid for a
detriment, loss, or responsibility given, suf-
promisor's undertaking. Expectation of results will
not constitute a consideration." fered, or undertaken by the other.'
That which one party to a contract gives or " Any damage or suspension of a right, or possibil-
ity of a loss occasioned to the plaintiff by the promise
does or promises in exchange for what is given
of another, is a sufflcient consideration for such prom-
or done or promised by the other party." ise, and will make it binding, although no actual ben-
The proper test is detriment to the promisee. All
efit accrues to the party promising." This rule is
our " considerations " would be *' reasons " icausoe) in
sustained by a long ^eries of adjudged cases.*
the Roman law; but it does not follow that all "rea- The performance of gratuitous promises depends
sons "— e. g., desire to aid a meritorious object, or to wholly upon the good-will which prompted them, and
benefit a member of ones own family — are considera- will not be enforced by the law. The rule is that, to
tions in our sense. And though all "considerations" support an action, the promise must have been made
are reasons, many of them are so slight that as mere upon a legal consideration moving from the promisee
reasons they would be entitled to little weight. With to the promisor. To constitute such consideration
us, there must be a material quid^pro quo, something there must be either a benefit to the maker of the
given or surrendered in return, no matter how slight, promise, or loss, trouble, or inconvenience to, or a
to make the promise binding. '» charge or obligation restmg upon, the party to whom
1 Brown v. Eggleston, 63 Conn. 119 (1885). the promise is made.*
" L. considerare, to view attentively. 1 1 Whart. Contr. §§ 494-95.
8 Terrill v. Auchauer, 14 Ohio St. 85 (1862). apillans v. Van Mierop, 3 Burr. 1673 (1765), Yates, J.
^8 Bl. Com. 306, 130. a Violett v. Fatten, B Cranch, 150 (1809), Marshall, C. J.
s State V. Lake, 34 La. An. 1070 (1883); State v. Bas- *Townsley v. Sumrall, 2 Pet. 183 (1829), Story, J.;
sett, ib. 1110 (1882); 39 Wis. 393. United States v. Linn, 15 id. 314 (1841).
"Phcenix Life Ins. Co. v. Eaddin, 120 U. S. 197 (1887), * 2 Shars. Bl. Com. 443 (1859).
Gray, J. ' Piatt V. United States, 22 Wall. 507 (1874), Clifford, J.
' [2 Bl. Com. 443. ' Currie v. Misa, L. E., 10 Ex. 162 (1875), Lush, J.
« [Bishop, Contr. § 38, citing definitions. SHendrick v. Lindsay, 93 U. S. 148 (1876), Davis, J.
• Philpot V. Gruninger, 14 Wall. 577 (1871), Strong, J. Purports to quote Pillans v. Van Mierop, supra.
" 1 Whart. Contr. § 493. » Cottage Street M. B. Church v. Kendall, 121 Mass.
 CONSIDERATION CONSIDERATION
233

A valuable consideration may consist either Considerations are also distinguished as:
in some right, interest, profit, or benefit ao- concurrent, such as arise at the same time, or
' cruing to the one party, or some extension under- promises made simultaneously ; as
of time of payment, detriment, loss, or re- continuing, executed in part only ; as entire,
sponsibility given, suffered, or undertaken incapable of division or severance, unappor-
by the other, i tionable — if partis illegal, all is illegal; as
Executed consideration. An act al- equitable, based upon moral duty, moral ; as
ready done, or value already given ; a con- exprexs, stated in words, oral or written;
sideration already received or wholly past. as gratuitous, founded on no detriment to
Executory consideration. A promise to the promisee ;i as implied, not stated in words,
do or to give something in the future ; a con- yet regarded in law as the consideration ; as
sideration tobe rendered.* legal, valid in law, and as opposed to such as
Good consideration. That of blood, or is illegal, invalid, immoral;^ as impossible,
natural affection between near relatives. such as, in the nature of things, cannot be
Valuable consideration. Money, mar- performed, and not such as is merely very
riage, work done, services rendered, or the difiicult ; ^ as nominal, consisting of a sum or
like.
value purely nominal, as that of "one dol-
Each is viewed as an equivalent. The former is
lar;" and as sufficient, such as sr^-sfies the
founded in motives of generosity, prudence, and nat- requirement of law.
ural duty; the latter in motives of justice.^ A valid consideration is absolutely necessary to a
" Good consideration " sometimes means a consid- contract. An engagement without it is a nudum pac-
eration which is valid in point of law; and it then
tum, and totally void; as, a promise to make a gift.*
includes a meritorious, as well as a valuable, consider-
ation. But it is more often used in contradistinction The purpose is to prevent the too free-handed, the im-
provident, the reckless, from binding themselves to the
to valuable consideration.^ ^ performance of undertakings either wasteful of their
By " consideration " as defined to be any benefit, means or else affording no reciprocal advantage.^
delay ,"^or loss to either party to a contract, is all that But any degree of reciprocity will take an agreement
is meant by "valuable consideration." The distinc- out of this category.* See Pact, Nude.
tion between "good" and " valuable " consideration Common examples of valid considerations are:
is largelj^ speculative.^ prevention of litigation; forbearance to enforce a.
Moral consideration. The duty to per- well-founded claim; assignment of a debt or right;
form, voluntarily, an obligation which is no work and service; trust and confidence; advances
longer enforceable in law. made, or liability incurred, in consequence of a sub-
This is sufficient to support an executed contract; scription of money.
and it will serve as a consideration for a new promise : A seal imports a consideration.
as, a promise to pay a debt contracted in infancy, or Every bond, from the solemnity of the instrument,
outlawed, or discharged by a decree in bankruptcy. and every promissory note, from the subscription,
carries with it internal evidence that a sufficient con-
In such cases the moral duty was once a legal duty.^
The duty to perform a positive promise, not con- sideration has passed.''
trary to law or public policy, or obtained by fraud or A good consideration wiU not avail when the con-
tract tends to defraud creditors or others of their
mistake, is an obligation in morals, and a sufficient con-
rights. A valuable consideration will always support
sideration for an express promise.^ See Obligation, 1.
a contract in a court of common law, and,' if ade-
quate, in a court of equity.^
B29-30 (1877), cases, Gray, C. J. ; University of Des However small the consideration, if given in good
Moines v. Livingston, 57 Iowa, 307 (1881).
faith, it will support the contract."
' Nat. Bank of the Republic v. Brooklyn City, &c. R.
A past consideration will not support a promise
Co., 102 U. S. 46 (1880), Clifford, J. See also 6 Col. 193;
unless requested beforehand. A previous request is
17 Conn, 517; 58 N. H. 443.
implied from service accepted or benefits received.'
"See Bishop, Contr. §§ 76-82, cases; Leake,Contr. 18;
1 Story, Contr. § 22; 1 Whart. Contr. § 493. 1 1 Whart. Contr. § 494 ; M. E. Chm-ch v. Kendall, ante.
»2 Bl. Com. 297, 444. See i Kent, 464; 1 Story, Eq. ' See 1 Pars. Contr. 479.
§354; Bishop, Contr. §42, cases; 58 Ala. 307; 20 Gal. 224- s [1 Pars. Contr. 400.
26; 9 Barb. 225. * See 2 Bl. Com. 446.
' [1. Story, Eq. § 334. See 3 Cranch, 157. °See Broom, Philosophy of Law, 38.
« See 1 Whart. Contr. § 497. »See 3 Bl. Com. 446; Whart. Contr. § 495; Smith,
»See Bishop, Contr. § 44, cases; 1 Pars. Contr. 431- Contr. 13.
36; 1 Story, Contr. § 590; 1 Whart. Contr. § 512; Leake, ' See 8 BL Com. 444, 297.
Contr. 86, 615; 2 Bl. Com. 445; 25 How. Pr. 484. 8 Lawrence v. McCalmont, 2 How. 452 (1844); Bish.
'Bentley v. Lamb, 112 Pa. 484 (1886): 23 Am. Law Contr. § 45, cases.>
Keg. 636-36 (1886), cases. » 1 Pars. Contr. 427, 474.
 233
CONSIGN CONSOLIDATE

A consideration subsequently arising may cure a

deed defective for want of a consideration.' not specified. The words "consisting of"
will be limited to the things specifically
The consideration of a written contract may be
shown by parol. ^ mentioned. 1
As to the parties to a deed, the consideration clause The devise " I give all my worldly goods, consisting
is prima facie evidence, with the effect only of a re- of household furniture, money, caotle, likewise my
ceipt, open to explanation and contradiction, not to house and the lot I now occupy," was held not to pass
defeat the deed as a conveyance, but to show the other realty than that particularly designated.'
true consideration. 3 CONSOLIDATE. To unite or merge
See further Adequate, 1 ; Contract; Convktancb, 2, into one ; to combine ; to amalgamate.
Voluntary; Deubekation; Faith, Good; Fokbear- To unite into one mass or body, as, to con-
ance; Legal, Illegal; Negotiable; Security, 1 ; Value,
Received; Void. solidate various funds ; to unite in one, as, to
consolidate legislative bills. 3
CONSIGN.* 1. Incivillaw, foradebtor,
Consolidation of actions. A direction
under the direction of a court, to deposit
with a third person an article of property that one of several pending actions, involv-
for the benefit of a creditor. ing the same facts and issues, shall be tried,
the result of the trial to be an adjudication
Consignation. A deposit which a debtor
of all the causes ; or else that all the actions
makes, by authority of court, of the thing
proceed to trial and judgment as one suit.
which he owes, in the hands of a third per-
Sometimes termed the " consolidation rule." '
son.* Allowed in suits against several insurers; in suits-
2. In mercantile law, to send or transmit on separate promissory notes of the same date; but
goods to a merchant or factor for sale. . . not in actions upon independent contracts, nor where
The radical meaning of the word, which is of claims have different guarantees; nor in actions upon
distinct penalties.
French origin, is to deliver or transfer as a
The United States courts may consolidate actions
charge or trust.* of a like nature, or relative to the same question, as
Modern usage extends the meaning to they deem reasonable.*
transmission, by the agency of a common Consolidation of associations. Union
carrier, of merchandise or other movables or merger into one, of two or more compa-
for custody, sale, etc. nies or corporations organized for the same,
Consignee.^ The factor or agent to whom or for some related, purpose. In England,
merchandise or other personal property is " amalgamation."
consigned. Consignor. He who makes a Whether the consolidation of two companies works
consignment of personal property. a dissolution of both, and the creation of a new Corpo-
ration, depends upon the intention of the legislatui'6.®'
Consignment. Property intrusted to a A sale by one coi-poration of all of its property to
common carrier for delivery to a pei'son another corporation, is, as against creditors not as-
named in the bill of lading ; also, the act or senting thereto, fraudulent and void."
When two companies unite or become consolidated
transaction by which the property is trans- under the authority of law, until the contrary appears
ported. See Bailment; Caeriee; Factor; the presumption is that the united or consolidated
Lading, Bill of. company has all the powers and privileges, and is
CONSIMILI. See Casus, Consimili. subject to all the restrictions and liabilities, of the
CONSISTENT. See Condition; Cus- companies out of which it was created.'
tom; Repeal.
CONSISTING-. Is not synonymous with 1 Farrish v. Cook, 0 Mo. Ap. 328, 331 (1878).
"including," which implies that there may ' Indep. District of Fairview v. Dm-Iand, 45 Iowa, 66-
be other objects in the same category, though (1876), Seevers, C. J. ^
> See Gould, Plead., IV, s. 103; Cox, Com. L. Pr. 239;.
59 Miss. 126.
> Jones V. N. T. Guaranty, &o. Co., 101 U. S. 627 (1879). , *R. S. § 921; Keep v. Indianapolis, &c. E. Co., 3.
"Seel Greenl. Ev. §§ .33,26; 71 Ala. 95; 55 Pa. 504; McCrary, 302 (1882): 10 F. E. 456.
67 id. 410; 13 R. I. 95. » Centi-al R. Co. v. Georgia, 93 U. S. 670-76 (1S75),
s Allen V. Kennedy, 91 Mo. 328 n886), cases. cases; Branch v. Charleston, ib. 677, 683 (1875), cases;
*L. con-signare, to mark, seal: to register, attest. Green County v. Couness, 109 id. 106 (18a3); Tj-son u.
In civil law a consignment of money was sealed up,— Wabash R. Co., U Biss. 510 (1883); Woodruff v. Erie E.
Bouvier.
Co., 93 N. Y. 616-16 (1883).
»Weld V. Hadley, 1 N. H. 304 (1818). 'Hibernia Ins. Co. v. St. Louis, &c. Transp. Co., 4
' Gillespie v Winberg, 4 Daly, 330 (1872), Daly, C. J. McCrary, 433 (1882).
'Con-sl-nee'; con-sin'-or. ' Tennessee v. Whitworth, 117 U. S. 147 (1886), cases.
 CONSORT CONSPIRACY
334

CONSORT. 1. A companion. When two or more persons, in any manner

Consortsliip. Fellowship, companion- or through any contrivance, positively or
ship, consortium, q. v. tacitly come to a mutual understanding to
S. A vessel that keeps company with an- accomplish a common, unlawful design. . .
other vessel. A combination formed by two or more per-
Consort-sMp. A contract between own- sons to effect an unlawful end, they acting
ers of wrecking vessels to share mutually under a common purpose to accomplish that
with each other moneys awarded as salvage,
whether earned by one vessel or by both.i The combination of two or more persons to
Prevents mischievous competitions, and collisions. end.isomething unlawful, as a means or as an
do
When made forlln indefinite time, continues until dis- ultimate end. Many acts not indictable
solved by notice; not dissolved by mere removal of a come within this definition. It is sufficient
master. Enforceable in admiralty, against property
or its proceeds in the custody of the court.^ if the end proposed, or the means employed,
CONSORTIUM. L. Union of lots or are, by reason of the power of combination,
chances: companionship; society; conjugal particularly dangerous to the public interests
fellowship and assistance. or injurious to some individual, although not
The right which a husband has to the conjugal fel- criminal. 2
lowship of the wife, to her company, coSperation, and At common law the gist of the ofEense is the unlaw-
aid in every conjugal relation. . . He is not the ful agreement. The ofEense is complete without an
master of the wife, and can maintain no action for overt act— the law punishes the unexecuted intent.'
the loss of her services as his servant. His interest is While, by statute, in many of the States, some
expressed b&the word amsortium. Some acts of a overt act is necessary, the final result of such act does
stranger to the wife are of themselves invasions of not vary-the legal character of the ofEense.*
the husband's right and necessarily injurious to' him; As known at common law conspiracy is not defined
others may or may not injure him, according to their in any act of Congress as an ofEense against the United
consequences: in which cases the injurious conse- States, nor is it, therefore, cognizable as such in her
quences must be proved, and that the husband actually
lost her company and assistance.^ courts.^
The act of Congi'ess of May 17, 1879," which is a
Per quod eonsortmm amisit. By substitute for the act of March 8, 1867,' provides that:
which he lost her assistance. "If two or more persons conspire either to commit
For a common battery upon the person of the wife any ofEense against the United States or to defraud the
United States in any manner for any purpose, and one
trespass for damages is to be brought by husband and
or more of such parties do any act to effect the object
wife jointly; but, if, by reason of the maltreatment,
of the conspiracy, all the parties to such conspiracy
he is deprived of her company and assistance, he has
shall be liable to a penalty of not more than ten thou-
a separate remedy therefor. ^ sand dollars, or to imprisomnent for not more than
CONSPIRACY.* A combination of two two years, or to both fine and imprisonment in the dis-
or more persons, by some concerted action, cretion of the court."
to accomplish a criminal or unlawful pur- Although by that enactment something more than
the common-law definition is necessary to complete
pose, or to accomplish a purpose, not in itself the offense, to wit, some act done to effect the object
criminal or unlawful, by criminal or unlaw- of the conspiracy, it remains true that the combina-
ful means. ° tion of minds in any unlawful purpose is the founda-
The unlawful combination or agreement of tion of the offense. The conspiracy is tor any fraud
two or more persons to do an act unlawful in or offense against the United States.*
itself, or to do a lawful act by unlawful
' United States v. Babcock, 3 Cent. Law J. 144 (1876),
means.^ Dillon, J. ; United States v. Nuimemacher, 7 Biss. 120
1 Andrews v. Wall, 3 How. 671 (1845), cases. Story, J. (1876).
' Bigaouette v. Paulet, 134 Mass. 124 (1883), W. Allen, J. 2 [Commonwealth v. Waterman, 182 Mass. 57 (1877),
See also Winsmore v. Greenbank, Willes, 677(1745): cases, Colt, J.
Bigelow, Ld. Cas. Torts, 328, 333-40, cases; Jones v. 3 United States v. Walsh, 5 DUl. 60 (1878); United
Utica, &c. R. Co., 40 Hun, 351 (1886). States V. Martm, 4 aifl. 162-63 (1870), cases; 16 Blatoh.
s 3 Bl. Com. 140. , 24-25; 97 Pa. 405.
' L. con, together; spirare, to breathe, whisper. < State V. Norton, 23 N. J. L. 40-46 (1850); Hazen v.
6 [Commonwealth v. Hunt, 4 Mete. 123, 121 (1842), Conmionwealth, 23 Pa. 363-64 (1854), cases.
Shaw, C. J. Approved in Spies et al. v. People (An- ' United States v. Martin, 4 Cliff. 160 (1870).
archists' Case), 122 111. 213 (1887); Heaps v. Dunham, 95 « 1 Sup. R. S. p. 484: 81 St. L. 4.
'R. S. §6440.
id. 686 (1880); 3 Greenl. Ev. § 89.
» Buffalo Lubricating Oil Co. 1j. Everest, 30 Hun, 588 s United States v. Hirsch, 100 U. S. 34-35 (1879). See
<1883); 17F. R. 147. also 1 Low. 866; 11 Blatoh. 168; 16 id. 15, 21; 2 Woods,
 CONSPIRACY 235 CONSPIRACY

As soon as the conspiracy is formed and an act is If one concur, proof of agreement to concur is not
done in pursuance thereof, the crime is consummated. necessary. As soon as the union of wills for the un-
In three years thereafter the bar of the statute of lim- lawful purpose is perfected the offense is complete.
itations iscomplete.' The joint assent may be established as an inference
An overt act, being necessary, must be alleged." from other facts.'
Also punishable by acts of Congress are (or have It is not necessary to prove that the accused came
been) conspiracies: to prevent a person from accept- together and agreed, in terms, to have a common de-
ing or exercising an office; to deter a person from at- sign, and to pursue it by common means. It is enough
tending court as a party, witness, or juror; to impede to prove that they pursued the same objects, often by
the due course of justice, with intent to deny equal the same means, one performing one part, another
protection of the laws; to prevent a person from sup- another part of the same, so as to complete it with a
porting aFederal elector or a member of Congress; ^ view to the attainment of that same end.'*
to destroy a vessel or the goods aboard with intent to Every person entering into a conspiracy already
injure any underwriter or lender of money;* to levy formed is in law a party to all the acts done by any
war against the United States; * to' obtain approval of of the other parties, before or afterward, m f urther-
false claims for lands, pensions, etc.® ance of the common design. 8
But no provision of the Constitution authorizes Con- It makes no difference in the degree of responsi-
gress to enact a law under which two or more tree bility that some of the conspirators were not present
white citizens can be punished for conspiracy or going at the consummation of the design.*
in disguise to deprive another free white citizen of a If the act of one, proceeding according to the com-
right accorded by the law of the State to all classes of mon intent, terminates in a criminal result, though
not the particular result meant, all are liable. That
persons.'
At common law a general allegation of a conspiracy is, a person may be guilty of a wrong he did not spe-
to effect an object criminal in itself is sufBcient, al- cifically intend, if it came naturally, or even acci-
though the indictment omits all charges of the partic- dentally, through some other specific or general evil
ular means employed. ^
When the criminality consists in an unlawful agree- He who conspires with others to do such an unlaw-
ful act as will probably result in the taking of human
ment to promote a criminal or illegal pui-pose, that purpose. "^
, purpose must be clearly and fully stated in the indict- life is presumed to have understood the consequences
ment. When the criminality consists in the agreement which might reasonably be expected from carrying it
to profnote a purpose not of itself criminal or unlaw- into effect, and to have assented thereto.'
ful, by the use of fraud, force, falsehood, or other "He who infiames people's minds, and induces
crimioal or unlawful means, such intended use of them, by violent means, to accomplish an illegal ob-
fraud, etc., must be set out in the indictment.' ject, is himself a rioter, though he takes no part in
The connection of the members being once shown the riot." . If he awakes into action an indiscrim-
every act and declaration of each member, in pmrsu- inate power, he is responsible. If he gives directions
ance of the common purpose, is the act and declara- vaguely and incautiously, and the persons receiving
tion of all." them act according to what he might have foreseen
would be the understanding, he is responsible.'
175, 197; 3 id. 47; 4 Dill. 128, 145, 407; 5 id. 58; 3 Hughes, Such declarations of a conspirator as are in f m-ther-
K3; 12 F. E. 250; 32 id. 534, infra. ance of the common design can be introduced against
1 United States v. Owen, 32 F. E. 534 (1887). the other conspirators. Declarations which are merely
"United States v. Eeichert, 33 F. E. 142 (1887). narrative as to what has been or wiU be done may be
Field, J. admitted against him who made them or in whose
> E. S. |§ 19S0, 5518-19. presence they were made. . . The rule that the
• E. S. § 5364.
conspiracy must first be established prima facie be-
»E. S. §5336. fore the acts of one confederate can be received in
e See E. S., Index, " Conspiracy." evidence against another cannot well be enforced
' United States v. Harris, 106 U. S. 637-44 (1882), cases. where the proof depends upon a vast number of iso-
Declared unconstitutional the act of Congress of April
80, 1871: R. S. | 5519. See also Baldwin v. Franks, 120 1 Spies et al. v. People, 122 111. 213 (1887), citing 2 Bish.
U. S. 678 (1887). Cr. Law, § 190.
'See Commonwealth v. Fuller, 132 Mass. 566 (1882); 2 Spies V. People, ib. 170, citmg 3 Greenl. Ev. § 93.
United States v. De Grift, 16 Blatch. 24-25 (1870), cases; a Spies v. People, ib. 179, citing 3 Greenl. Ev. § 93.
Barras 11. BidweU, 3 Woods, 47 (1876); Hazen v. Com- ' Spies V. People, ib. 177, 253, citing WilUams v.
monwealth, 23 Pa. 363-64 (1854), cases; Eex v. Gill & People, 64 111. 422 (1870); Brennan v. People, 15 id. 517
104.
Henry, 2 B. & Aid. *205 (1818); 109 U. S. 199; 113 id. (18M); Whart. Hom. § 338.
•Commonwealth v. Hunt, 4 Mete. 126 (1842), Shaw, « Spies V. People, ib. S3S, quoting 1 Bish. Cr. Law,
860;
C J See also 4 Bl. Com. 136; 3 id. 126; 3 Ala. § 636, cases.
6 id. 765; 12 Conn. 101; 80 id. 507; 25 111. 17; 30 Me. 132; "Spies V. People, ib. 226, 229, cases; 1 Whart.
Cr.
48 id. 218; 1 Mich. 220; 4 id. 444; 15 N. H. 394; 16 Johns. Law, § 225 o.
v.
592; 76 N. Y. 217; 41 Wis. 278; 2 Q. B. D. 59; 11 Q. B. ' Spies V People, ib. 198, 324, 230, quotmg Eegma
345; 10 Cox, Cr. Cas. :325. Sharpe, 3 Cox, C. C. 288 (1848), Wilde, C. J. ;
1 Bish. Cr.
" 1 Greenl. Ev. § HI; 64 Ind. 473; 87 id. 28; 88 id. 15; Law, §§ 640-41; Queen v. Most, L. E., 7 Q.
B. D. 244
66 Ga. 693.
(1881).
 CONSTABLE 286 CONSTITUTION

lated circumstances. In any case, where the whole Non constat. It does not appear ; it does
evidence shows that a conspiracy actually existed, it not follow: it is not certain. Non constitit:
will be considered immaterial whether the conspiracy it did not appear.
was established before or after the introduction of
the acts and declarations of the members.^ " Before judgment, non constat^ the accused may
A simple conspiracy is not the subject of a civil ac- be innocent." i " Non constat by the record, who
tion unless it results ih actual damage to the person gave notice." * "Whether the title was to come from
aimed at. If such damage, but not the combination, him, and when, and on what conditions, non constat.^^ *
is proven, the plaintiff Is entitled to a verdict against " Non constituit whether a felony was committed till
any defendant shown to have committed an unlawful the principal was attainted." *,
2, n. A certificate of what appears upon
act."
A bill in equity will not lie against persons (pilots) record as to a matter in question.
who have confederated to destroy the business of the Thus, an exemplification of the enrollment of let-
owner of a vessel by publications in newspapers, by ters-patent under the great seal was called a, " con-
Instituting suits, and in other ways. The injured per-
-son has adequate remedies at law for each' of those There may be a possession of a vessel under a claim
acts.' of titlestat." " " with a constat of property." ®
See Accomplice; Boycotting; Combination, 2; In- CONSTATE.' To establish, ascertain?
dictment; Prosecution, Malicious; Sedition; Strike, to evidence, testify, prove.
2; Trades-unions. "Unless there has been some violation of the
COWSTABIiE.4 1. Originally, an officer charter or the constating instruments " of the corpo-
■who regulated matters of chivalry, tourna- ration, the directors will not be personally liable." ^
ments, and feats of arms, performed on CON"STITUENT. See Agent.
horseback. CONSTITUTED. See Authoeity, 2.
2. An officer appointed to preserve the CONSTITUTION.9 Originally, an im-
peace, and to execute the processes of a jus- portant decree or edict. Later, the laws and
tice of the peace.5 usages which gave a government its char-
Constabulary. Pertaining to or consist- acteristic features — the organic law.W
ing of peace-officers. Constablery. The The constitution of England consists of customs,
statutes, common laws, and decisions of fundamental
jurisdiction of a constable.
importance. American constitutions are enacted;
High constable. 1. A constable, or but the meaning of much of them is found in decided
" lord high constable," in the primitive sense
above noted. 3. The chief police officer in a The English, constitution is a gpowth. Eights in
cases. ^^of the Commons were established as follows:
tov?n or city : the chief constable. favor
Petty constable. 1. An inferior officer (1) In the reign of Henry III (1316-72), participation in
levying taxes and in legislation, and control of appli-
in every town and parish, subordinate to a cations for supplies. (2) In the reign of Edw. TIT
high constable." 2. An officer charged with (1326-77), enlarged participation in levying taxes and
keeping the peace within a county or other in legislation; inquiry into public abuses; impeach-
district, and with executing such processes ment of public ministers. (3) In the reigns of Hen. IV,
as are issued by justices of the peace. V, and VI (1399-1461), the exclusive right to impose
taxes; the right to grant supplies to the sovereign
Special constable. A person appointed upon redress of grievances; larger participation in
to execute a warrant on a particular occa- legislation; control of the administration; impeach-
sion or to co-operate in preserving the peace ment of ministers; and certain rights of privilege —
freedom of speech in Parliament, freedom from arrest
on a special emergency. See Areest, 2;
County, Power of; JIaeshal, 1 (3);
1 16 Wall. 370.
Peace, 1.
» 59 Wis. 653.
CONSTAT. L. 1, v; It appears : liter- = 63 Pa. 398.
ally, it^is established, certain, made man- <4 Bl. Com. 333. See also 6 Wheat. 229; 34 La. An.
ifest. Compare Constate. 1134.
6 Coke, Litt. 225.
' Spies V. People, ib. 237-^9 ; State v. Winner, 17 Kan. • The Tilton, 5 Mas. 468 (1830), Story, J.
293(1876); 1 Greenl. Ev. § 111; Eoscoe, Cr. Ev. 414-13. ' Con-state'. L. con-stare, to stand firm, be certain,
" Buffalo Lubricating OU Co. v. Everest, 30 Hun, 588 known. See Constat.
(188.3), cases. "Ackerman v. Halsey, 37 N. J. B. 363 (1883), Eun-
3 Francis v. Flinn, 118 U. S. 385 (1886).
*F. conestable; L. comes stabuU, count ot the stable. yon,
' L.Ch.
constituere, to make to stand together, to estab-
lish.
' [1 Bl. Com. 355.
• [1 Bl. Com. 355. 1° Lieber, Bncyc. Am., tit. Constitution.
 237
CONSTITUTION CONSTITUTION

•during attendance upon Parliament, and the right of legislation, instead of being restricted to fundamental
•deciding upon election returns.' rules, and thereby to invite demoralizing evasions. An
An act of extraordinary legislation by unwritten constitution is subject to perpetual change
at the will of the law-making authority; against which
which the people establish the structure and
there can be no security except in the conservatism of
mechanism of their government, and in that authority, and in its responsibility to the people,
which they prescribe fundamental rules to or, if no such responsibility exists, then in the fear of
resistance by force.'
regulate the motion of the several parts.'''
The body of rules and maxims in accord- Our State constitutions are forms of
ance with which the powers of sovereignty government ordained and established by the
are habitually exercised.' people in their original sovereign capacity to
Although, in some sense, every State may promote their own happiness and perma-
be said to have a constitution, the expression nently secure their rights, property, inde-
" constitutional government " applies to those pendence, and common welfare. They are
States only whose fundamental rules or deemed compacts in the sense of their being
maxims prescribe how those shall be chosen founded on the voluntary consent or agree-
who are to exercise the sovereign powers, ment of a majority of the qualified voters of
and impose restraints upon that exercise, for the State. A constitution is in fact a funda-
the purpose of protecting individual rights, mental law or basis of government, and falls
and of shielding them against any assump- strictly within the definition of "law" as
tion of arbitrary power.' given by Blackstone, — a rule of action pre-
If the constitution is iin-writteu there maybe laws scribed by the supreme power in a state,
or documents which declare some of its important regulating the rights and duties of the whole
principles; as, in England, in the cases of the Magna
Charta, Petition of Rights. Habeas Corpus Act, Bills community. It is in this light that the lan-
of Rights, and the Common Law as the expositor of guage of the Constitution of the United
those charters.* States contemplates it; for it declares that
In America, the principle of constitutional this constitution, etc., "shall be the supreme
liberty is that sovereignty resides in the peo- Law of the land." 2 letter of attorney from the
A constitution is the
ple; and, as they could not collectively ex-
ercise the powers of government, written
Constitutions guard the rights of personal security,
constitutions were agreed upon. These in- personal
people.' liberty, private property, and of religious
struments create departments for the exer- professions and worship.*
cise of sovereign powers ; prescribe the extent Constitutions are mainly for the protection of
and methods of the exercise, and, in some minorities. In times of excitement and distress, their

particulars, forbid that certain powers, which rights are most likely to be sacrificed. *
By the Revolution the transcendant powers
would be within the compass of sovereignty,
of Parliament devolved upon the people. A
shall be exercised at all. Each constitution
portion of this power they delegated to the
is, moreover, a covenant on the part of the
government of the United States. Such as
people with each individual thereof, that
they have divested themselves of the power remained they bestowed upon the govern-
ments of the States, with certain express
of making changes in the fundamental law
limitations and exceptions. The Federal
except as agreed upon in the constitution Constitution confers powers particularly
itself. 3
A written constitution establishes iron rules, enumerated ; that of each State is a grant of
which, when found inconvenient, are difficult of all powers not excepted. The former is con-
■change; it is sometimes construed by technical rules strued strictly against those who claim
of verbal criticism rather than in the Mght of great
under it; the latter, strictly against those
principles; and it is likely to invade the domain of
who stand upon the exceptions, and Uberally
» See 4 Bl. Com. Ch. XXXHIi 3 Law Quar. Rev. 204- in favor of the government itself. The Fed-
10 (1887).
eral government can do whatever is author-
s Eakin v. Raub, 13 S. & R. 347 (1825), Gibson, J. See
also Wabash, &c. R. Co. v. People, 105 Dl. 240 (1883),
Walker, J. 1 [Cooley, Princ. Const. Law, 22-23.
» 1 Story, Const. U 333-39.
3 [Cooley, Princ. Const. Law, 82-23; Const. Lim. 2-3. 407. , Bl.
Sharswood
<» 11 Kent,
Com. *14r, note.
See also Hurtado v. California, 110 U. S. 531-33 (1884),
Matthews, J. » Bunn V. Oorgas, 41 Pa. 446 (1803).
 CONSTITUTION CONSTITUTION
338

ized, expressly or by clear implication ; the ent, might seem salutary, might, in the end, prove the
overthrow of the system itself. Hence its powers are
government of a State, whatever is not pro-
expressed in general terms, leaving the legislature,
hibited.!
The Federal Constitution went into effect the first from time to time, to adopt its own means to effectu-
ate legitimate objects, and to mould and model the
Wednesday of March, 1789. September 14, 1786, com- exercise of its powers, as its own wisdom, and the
missioners from five States met at Annapolis, and rec-
omimended that a general convention be held at public interests, require. ^
Philadelphia, to revise the Articles of Confederation. The Federal government is one of enumerated pow-
ers. The question respecting the extent of the powers
February- 21, 1787, the congress of the confederation actually granted will continue to arise, as long as our
made a similar recomauendation. May 25, 1787, the
delegates assembled, organized, and, about four system shall exist. There is no phrase in the instru-
ment which excludes incidental or implied powers,
months later, to wit, September 17th, adjourned, hav- and which requires that everything Ranted shall be
ing drafted a " Constitution of the United States of expressly and minutely described. Eyen the Tenth
America." June 21, 1788, the document, as a constitu- Amendment, framed for the purpose of quieting the
tion, was ratified by the ninth State. September 13, excessive jealousies which had been excited, omits
1788, Congress set the time for choosing Presidential
electors, appointing March 4, 1789, as the day, and the word "expressly," and declares only that the
New York City as the place, when and where the new powers " not delegated to the United States, . , nor
prohibited by it to the States, are reserved to the States
Government of the United States should begin opera-
respectively, or to the people;" thus leaving the ques-
tions. ^ See Confederation, Articles of; National. tion, whether the particular power, which may become
The Constitution was ordained and established by
the subject of contest, has been delegated to the one
*'the people of the United States." It was not neces- government or prohibited to the other, to depend upon
sarily carved out of existing State sovereignties, nor a fair construction of the whole instrument. A con-
was it a surrender of powers already existing in State
stitution, to contain an accurate detail of all the sub-
institutions, for the powers of the States depend upon divisions of which its great powers will admit, and of
their own constitutions ; and the people of every State
all the means by which they may be carried into exe-
had the right to modify and restrain them, according to cution, would partake of the prolixity of a legal code,
their own views of policy or principle. On the other and could scarcely be embraced by the human mind.
hand, it is clear that the sovereign powers vested in
Its nature, therefore, requires that only its great out-
the State governments, by their respective constitu- lines should be marked, its important objects desig-
tions, remained unaltered and unimpaired, except so nated, and the minor ingredients which comipose those
far as they were granted to the government of the objects be deduced from the nature of the objects
United States. "The powers not delegated to the themselves. The powers given imply at least the or-
United States by the Constitution, nor prohibited by it
dinary means of execution. . The government which
to the States, are reserved to the States respectively,
has a right to do an act, and has Imposed on it the
or to the jpeop/e." (Am.d. Art. X) The government, duty of performing that act, must be allowed to select
then, can claim np powers which are not granted to it, the means.
and the powers actually granted must be such as are
But this use of means is not left to general reason-
expressly given, or given by necessary implication.
. . The instrument is to have a reasonable con- ing. To the enumerated powers is added that of mak-
Btruction, according to the import of its terms ; and ing "all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and
where a power is expressly given in general terms, it
all other Powers vested by this Constitution in the Gov-
is not to be restricted to particular cases, unless that
ernment of the United States, or in any Department or
construction grows out of the context expressly, or by
necessary implication. The words are to be taken in Officer thereof." (Art. I, sec. 8, cl. 18.) "Necessary"
(g-. V.) does not here import an absolute physical ne-
their natural and obvious sense, not in a sense unrea- cessity, so strong that one thing to which another may
sonably restricted or enlarged. It unavoidably deals
be termed necessary cannot exist without that other.
in general language. It did not suit the purpose of
If this clause does not enlarge it cannot be construed
the people in framing this great charter of our liber- to restrain the powers of Congress, or to impair the
ties to provide for minute specifications of its powers,
right of the legislature to exercise its best judgment
or to declare the means by which these powers should
be carried into execution. It was foreseen that this in the selection of measures to carry into execution
the constitutional powers of the government. ^
would be a perilous and difficult, if not an impracti- The revolution which established the Constitution
cable, task. The instrument was intended to endure
was not effected without immense opposition. Fears
through a long lapse of ages. It could not be foreseen
were entertained that the very powers which were
what new changes and modifications of power might'
be indispensable to effectuate the general objects;
1 Martin v. Hunter's Lessee, 1 "Ulieat. 324^-27 (1816),
and restrictions and specifications, which, at the pres- Story, J. ; Gibbons v. Ogden, 9 id. 187 (1824), Marshall,
C.J.
^ Sharpless v. Mayor of Philadelphia, 21 Pa. 160-64, 2 M'CuUoch V. State of Maryland, 4 Wheat. 40&-23
172-73 (1853), cases, Black, C. J.; 17 id. 119; 52 id. 477; (1819), Marshall, C. J.,— upon the constitutionality of
13 Conn. 125; 46 N. Y. 401; 16 How. 428. the act of April 10, 1816, incorporating the Bank of the
2 See R. S. p. 17; Century Mag., Sept., 1887; Ban- United States. See also Legal Tender Case, 110 U. S.
croft, Const. 441 (1884); Exp. Yarbrough, ib. 651, 658 (1884).
 239
CONSTITUTION CONSTITUTION

essential to union miglit be exercised in a manner dan- building a capitol or Presidential mansion; the penaJ
gerous to liberty.' code; the census "of free white persons iu the
The rule laid down in M'Culloch v. Maryland has States,!' as to persons not free and in the Territories:
ever since been accepted as a correct exposition of the collection of statistics; carrying the mails, and
the Constitution. It is settled that the words "all punishing offenses against the postal laws; improv
Laws which shall be necessary and proper tor carry- ing harbors; establishing observatories, light-houses,
ing into Execution" powera expressly granted or break-waters; the registiy and construction of ships,
Tested have a sense equivalent to the words: laws, not and the government of seamen; the United States
absolutely necessary Indeed, but appropriate, plainly bank — for the convenience of the treasury and in
adapted to constitutional and legitimate ends; laws ternal commerce, and to which the government sub-
not prohibited, but consistent with the letter and spirit scribed one-flfth of the stock, although the bank was
of the Constitution; laws really calculated to effect a private corporation doing business for its own profit
objects intrusted to the government. It was needful priority of debts due to the United States over other
only to make express grants of general powers, creditors; the Legal Tender Acts of 1863 and 1863.1
coupled with a further grant of such incidental and Constitutions are instruments of a practical nature,
auxiliary powers as might be required for the exercise founded on the common business of human life,
of the powers expressly granted. Perhaps the largest adapted to common wants, designed for common use,
part of the functions of the government have been and fitted for common understandings.^
performed in the exercise of implied powers.^ A constitutional provision is " self-executing " or
It is indispensable to keep in view the objects for " self -enacting " when it supplies the rule by which
which the powers were granted. If the general pur- the right given may be enjoyed and protected, or the
pose of an instrument of any nature is ascertained duty imposed may be enforced. It is not self-executing
the language of its provisions must be construed with when it merely indicates the principles, without laying
reference to that purpose and so as to subserve it. down rules by means of which those principles may
And there are more urgent reasons for looking to the be given the force of law. . . Some provisions are
ultimate purpose in examining the powers conferred mandatory; others, without legislation, are dormant.*
by the Constitution than there are for construing any Constitutional. 1. Relating to the
other instrument. We do not expect to find in a con-
stitution minute details. It is necessarily brief and framing or formation of a written constitu-
tion : as, a constitutional convention.
comprehensive. It prescribes outlines, leaving the
filling up to be deduced from these outlines. . . The 3. Based upon, secured, or regulated by
powers conferred upon Congress must be regarded as a constitution: as, constitutional — govern-
related to each other, and all means for a common ments, liberty, rights.
end. Each is but part of a system, a constituent of one 3. Authorized by a particular constitution,
whole. No single power is the ultimate end for which
the Constitution was adopted. A slibordinate object whether written or unwi-itten.
is itself a means designed for an ulterior purpose. It Unconstitutional. Contrary to the prin-
is impossible to know what those non-enumeraied ciples or rules of a constitution. Whence
powers are, and what their nature and extent, without constitutionality, unconstitutionality.
considering the piu^joses they were intended to sub- An " unconstitutional" law either assumes
serve. Those purposes reach beyond the mere execu-
tion of all powers definitely intrusted to Congress and power not legislative in its nature, or is in-
mentioned in detail. . In the nature of things, consistent with some provision of the Federal
enumeration and specification of all the means or in- or State constitution.*
strumentalities, necessary for the preservation and A State legislature cannot pass a law conflicting
fulfillment of acknowledged duties, were impossible. with the rightful authority of Congress, nor perform
They are left to the discretion of Congress, subject a judicial or exednitive function, nor violate the popu-
only to the restrictions that they be not prohibited and lar privileges reserved by the Declaration of Eights,
be necessary and proper for carrying into execution por change the organic structure of the government,
the enumerated powers. . . The existence of a nor exercise any other power prohibited in the consti-
power may be deduced fairly from more than one of
the substantive powers expressly defined. . . Con- ' Legal Tender Cases, 12 Wall. 5.33-47 (1870), cases.
gress has often exercised powers not expressly given
Strong, J. ; (Second) Legal Tender Case, 110 U. S. 439
nor ancillary to any single enumerated power. These
(1881); Exp. Yarbrough, ib. 668 (1884); Holmes v. Jen-
are resulting powers, arising from the aggregate pow- nison, 14 Pet. 671 (1840).
ers. Illustrative instances of the recognition and » 1 Story, Const. § 451; ib. § 419; 7 Tex. Ap. SIO; 24
exercise of such powers are found m the right to sue, N. Y. 486. See also Burks v. Hinton, 77 Va. 29 (1883).
and to make contracts; the oath required of officers; ' Cooley, Const. Lim. 99-101; Groves v. Slaughter, 16
1 Barron v. Mayor of Baltimore, 7 Pet. *250, 247 (1833). Pet. 500 (1841); 92U. S. 214; 10 F. E. 603; 9 Cal. 341; 33
' Hepburn v. Griswold, 8 Wall. 614-15 (1869), Chase, id. 487; 48 id. 279; 13 111. 1; 60 id. 390; 62 id. 38; 64 id.
C. J. This power (Art. I, sec. 8, cl. 8) " was so clearly 41; 68 id. 286; 89 Ind. 116; 24 La. An. 814; S Mich. 600;
necessary that without cavil or remark it was unani- 7 id. 488; 29 id. 108; 8 Miss. 14; 63 Mo. 444; 81 Pa. 48jJ;
mously agreed to " by the members of the Constitu- 20 Gratt. 733; 9 W. Va. 703.
tional convention; 2 Bancroft, Const. 149. * Commonwealth v. MaxweU, 27 Pa. 456 (1856).
 CONSTITUTION 240 CONSTRUCTION

tution. The judioiary, in (dear oases, has always exer- The duty to declare an act of Congress repugnant
cised the right to declare such acts void. But beyond to the Constitution is one of great delicacy, only to be
this there lies a vast field of power, granted to the performed where the contlictis irreconcilable. Every
legislature by the general words of the constitution, doubt is to be resolved in favor of constitutionality.'
and not reserved, prohibited, or given away to others: The reasons against the unconstitutionality should
their use of which is limited only by -their own dis- at least preponderate; if they are equally balanced,
cretion. The constitution gives a list of the things the court should declare the statute valid."
the legislature may do. For the judiciary to extend Proper respect for a co-ordinate branch of the gov-
that list would be to violate the letter a;nd the spirit of ernment requires the Federal courts to give effect
the organic law itself. The people rely for faithful to the presumption that Congress will pass no act
execution of the powers given to the legislatxu-e on not within constitutional power. This presumption
the wisdom and honesty of that department, and on should prevail unless the lack of authority is clearly
the direct accountability of the members to their con- demonstrated. At the same time, the government
stituents. The mere abuse of power was not meant being one of delegated, limited, and enumerated
to be corrected by the judiciary — for judges can be powers, every valid act must find in the Constitution
imagined to be as corrupt and wicked as legislators. some warrant for its authority. ^
And the general principles of justice, liberty, and See Amendment, 2; Citizen; Courts, United States;
right, not contained or expressed in the body of the Federalist; Impair; Law, Supreme; Legislature;
constitution itself, are not elements for a judicial de- Politics; Preamble, 1; Eeligion; Eights, Bill of;
<;lsiOn upon the constitutionality of an enactment. ' State, 8 (2); Tax, 2; Tender, 2, Legal.
To justify a court in pronouncing an act unconsti-
tutional, inwhole or in part, it must be able to vouch COWSTRUCTIOH'.* 1. Putting together,
ready for use ; building ; erecting : applied to
some exception or prohibition clearly expressed or
necessarily 'implied. To doubt is to favor constitution- houses, vessels,^ railroads,* machines.'' See
ality. That meaning of words is to be taken which Build ; Erect ; Conteactok.
will support the statute.^ 2. Drawing conclusions respecting subjects
A separable portion of an act may be unconstitu- that lie beyond the direct expression of the
tional, and the rest be valid, provided the law as a
whole can be executed, ^
text, from elements known from and given
The rule is to enforce statutes as far as they are in the text — conclusions within the spirit,
constitutionally made, rejecting those provisions only though not within the letter, of the text.*
which show an excess of authority, conformably to " Interpretation " is the art of finding out the true
the settled maxim tit res magis, etc. * sense of any form of words; that is, the sense which
The opposition between the Constitution and, the their author intended to convey.^
law should be such that the judge feels a clear and In common use, "construction" embraces all that
strong conviction of their incompatibility.* is covered by both synonyms,^
" Let the end be legitimate, let it be within,the scope Eules of construction have for their object the dis-
of the Constitution, and all means which are appro- covery of the true intent ant^ meaning of instru-
priate, which are plainly adapted to that end, which ments— the thought expressed,'"
are not prohibited, but consist with the letter and where the language is transparent there is no room
spirit of the Constitution, are constitutional. Where for the office of construction. There shoiild be no
the law is not prohibited, and is really calculated to construction whei'e there is nothing to construe."
effect any of the objects Intrusted to che govei*nment, Liberal construction. Such construc-
for the court to undertake to inquire into the degree
tion as enlarges or restrains the letter of an
of its necessity would be to pass the line which cir-
cumscribes the judicial departments, and to tread on agreement or instrument so as more eflfect-
legislative ground." ^
ually to accomplish the end in view. Also
called equitable construction. Strict con-
1 Sharpless v. Mayor of Philadelphia, 21 Pa, 160-64 struction. Such as limits the application
<1853), cases, Black, C. J.
s Commonwealth v. Butler, 99 Pa. 540 (1883), Shars- 1 Mayor of Nashville v. Cooper, 6 Wall. 251 (1867); 20
Tvood, C. J.; State v. Hipp, 88 Ohio St. 319 (1888). id. 668,
= United States v. Eeese, 92 U. S. 221 (1875); Virginia 2 Cherokee County v. State, 36 Kan. 339 (1887), cases.
Coupon Cases, 114 id. 305 (1885); Presser v. Illinois, 116 3 United States v. Harris, 106 U. S. 635 (1882), Woods, J.
id. 263 (1886), cases; Spraigue v. Thompson, 118 id. 90, See 2 Story, Const. § 1243.
95 (1886); Baldwin v. Franks, 120 id. 689 (IBS'*); State v. * L, construere^ to put together.
Kelsey, 44 N. J. L. 29 (1882). s,Sprague, 180; 103 Mass. 227.
i Adler v. Whitbeck, 44 Ohio St. 575 (1886); 15 Ohio, 9 11 Iowa, 17; 115 Mass. 400.
' 17 How. 72.
«4e. See also Black v. Trower, 79 Va. 127-28 (1884),
cases; Reid v. Morton, 119 111. 118, 129 (1886); 83 Ky. 68. SLieber, Hermen., Ham. ed., 44, 11; 36 N. J. L. 209;
'Fletcher v. Peck, 6 Cranch, 128 (1810); County of 2 Pars. Contr. 491.
Livingston v. Darlington, 101 U. S. 410 (1879), cases. " [Cooley, Const. Lim. *.$8.
'M'CuUoch V. Maryland, 4 Whe;it. 421, 423 (1819), " People u May, 9 Col. 86 (1885).
Marshall, C. J. ; Hepburn v. Griswold, 8 Wall. 614-15 " Lewis V. United States, 92 U. S. 621 (1875), Swayne,
(1869); Legal Tender Cases, 12 id. 538 (1870). J.; Benn v. Hatcher, 81 Va. 34 (1885).
 CONSTRUCTIVE 241 CONSUL

to cases clearly described by the words used ; torn of the place is to be conformed to. See
a close adherence to words. Also called Custom.
literal construction. i CONSUL.i " Consul," " consul-general,"
By a liberal interpretation of a letter of guaranty and " commercial agent," in the Revised
we do not mean that the words should be forced out
Statutes, denote full, principal and perma-
of their natural meaning; simply that they should re-
ceive a fair and reasonable interpretation, so as to nent consular officers, as distinguished from
attain the object for which the instrument is designed subordinates and substitutes. ^
and the purpose to which it is applied.'' "Deputy consul" and "consular agent"
Other expressions are : artificial, forced or denote officers subordinate to such principals,
strained, refined, reasonable construction. exercising the powers and performing the
A reasonable construction of an instrument, as of duties within the limits of their consulates
the Constitution, means that in case the words are sus-
ceptible of two senses, the one strict, the other more
or commercial agencies respectively, the
enlarged, that should be adopted which is most conso- former at the same ports or places, and the
nant with the apparent intent.* latter at ports or places different from those
The object is not to make or modify the instrument, at which such principals are located respect-
but to find the sense. Hence, the whole docimient is
to be construed together. This is to be done by the ively, s
court, except when the writing contains technical " Vice-consuls," and " vice-commer6ial
words, or terms of art, or when it is introduced col- agents " denote consular officers, who shall
lateral y, or when its effect depends upon extrinsic be substituted, temporaijily, to fill the places
circumstances — in which cases the duty devolves of consuls-general, consuls, or commercial
upon the jury.* agents, when they shall be temporarily ab-
It is a cardinal rule in the constniction of all instru-
ments that, if possible, effect should be given to all sent or retired from duty.^
parts and to every clause, ut res tnagis, etc.** "Consular officer" includes consuls-gen-
See further Condition; Constitution; Construct- eral, consuls, commercial agents, deputy con-
ive; Contract; Covenant; Deed, 2; Expositio; Ex- suls, vice-consuls, vice-commercial agents,
FRESSio; Forfeiture; Franchise, 1; Grant; Impair;
Instrument, 3; Insurance, Policy; Noscitur; Punctu- consular agents, and none others.^
ation; Repeal; Repugnant; Statute; Trust, 1; Usus, The word " consul " shall be understood to
Utile, etc.; Verbum; Will, 2; Word. mean any person invested by the United
CONSTRUCTIVE. Determined by con- States with and exercising the functions of
struction: inferred or implied, presumed or consul-general, vice-consul-general, consul
imputed ; opposed to actual : as, or vice-consul.6
Constructive — annexation, appropriation, A "consul" is an officer of a particular
assent or consent, attachment, breaking, grade in the consular service; in a broad
close, contempt, conversion, damages, de- generic sense, the word embraces all consular
livery, fraud, larceny, levy, loss, malice, officers of whatever grade.'
notice, possession, presence, service, taking, Under treaties, consuls have had conferred upon
treason, trust, qq. v. them judicial authority over theff own countrymen:
as in the decision of controversies in civil cases; the
COIfSUBTUDO. L. Custom; usage;
administration of estates; the registering and certify-
practice. ing of wills, contracts, etc. When residing in a coun-
Consuetudo est altera lex. Custom is try of different political and religious institutions,
another law. they have also a limited criminal jurisdiction over
Consuetudo interpres legum. Cus- their countrymen."
Consuls are approved and admitted by the local
tom is the expounder of laws.* sovereign. If guilty of illegal or improper conduct,
Consuetudo loci otaservanda. Thecus-
the exequatur (q. v.) which has been given 'may be
revoked, and they may be punished, or sent out of the
1 [Bouvier's Law Diet; 1 Wash. T. 351^1 Shars. Bl. country, at the option of the offended government. In
Com. 87; 23 Cent. Law J. 483 (1886), cases.
= Lawrence v. MoCalmont, 2 How. 449 (1844), Stoiy, J. ; • L. consulere, to consult.
Crist V. Burllngame, 62 Barb. 356 (1862). ' R. S. § 1674, par. 1.
' [1 Story, Const. § 419. « Ibid., par. 2.
*Goddard v. Foster, 17 Wall. 143 (18T2), cases; * Ibid., par. 3.
Beardsley v. Hotchkiss, 30 Hun, 613 (1883); 1 Law Quar. » Ibid., par. 4.
Eev. 466 (1885). •Act 1 Feb. 1876; E. S. S 4130.
» May V. Saginaw County, 32 F. R 632 (1887). ' Dainese v. United States, 13 Ct. a. 74 (1879).
• 116 U. S. 622. •See R. S. § 4D83; 11 F. R 607.
(16)
 243
CONSUMMATE CONTEMPT

civil and criminal cases they are subject to the local The bankrupt act of 1841, by the phrase " contem-
law in the same manner as other foreign residents plation of bankruptcy," did not intend contemplation
owing a temporary allegiance to the state. A trading solely of being a bankrupt, but contemplation of actu- ,
consul, in all that concerns his trade, is liable as a ally stopping business because of insolvency and in-
native merchant.^
capacity to carry it on.i
See further Diplomatic; Mihisteb, 3. The debtor must have contemplated more than a
state of insolvency,— an act of bankruptcy, or an ap-
CONS1JMMATE.2 ' Complete, finished, plication tobe declared a bankrupt.'
perfected, entire; opposed to inchoate, q. v.
An estate by curtesy is consummate on the death In the act of 1867, the phraseology is " in contempla-
of the wife.' tion of insolvency or bankruptcy." This was held not
to require an absolute inability to pay all debts in full
Consummation. In the law of marriage, on a close of business; only that the debtor could not
copulation.* See Com, Copula;. Maeriaqb. pay his debts in the ordinary course of business.*
See Bankruptcy; Insolvency.
CONSUMPTIOH". See Legacy; Loan,
1 ; Tax, 3, Indirect. CONTEMPOEANEA. _See Exposiiio.
COKTAGIOUS. See Disease; Disoe- CONTEMPT.s Disrespect; willful dis-
DER, 1 ; Health. regard of the authority of a court or legis-
CONTAINED. See Premises, 3. lature.
Buggies insured as " contained in " a livery-stable 1. To the head of summary proceedings is
were destroyed while in a factory for repairs. Held,
that the words quoted were a warranty as to property referred the method, immemorially used b3'-
whose use did not require removal.* the superior courts, of puiiishing contempts
The description of a horse as " contained in " a by attachnient. . . Contempts are either
bam, in a policy against lightning, was held not to be direct [sometimes called criminal], which
a contract that the horse was to be kept all the time openly insult or resist the powers of the
in the barn. " Danger from lightning exists almost courts or the persons of the judges who
wholly in the summer season, when stock of all kinds
upon farms is kept in the fields. A policy which cov- preside there; or else are consequential
ered stock only when in the bam would not fm-nish [sometimes called constructive, which, with-
indemnity." * out such gross insolence or direct opposition,
Household furniture, described in a policy as " con-
plainly tend to create a universal disregard
tained in" a certain house, was removed, without of their authority.
the insurer's knowledge, to a house on another
street, where it was destroyed by fire. Held, that as The principal mstances are: 1. Those committed
the statement of locality was to be construed as a con- by inferior judges and magistrates — by acting un-
tinuing warranty, the insured could not refcover.' justly, oppressively, or irregularly in administering
A seal-skin dolman, insured as wearing apparel by justice; disobeying writs issuing out of the superior
courts by proceeding in a cause after it is put a stop
a policy describing it as " contained in " a particular
dwelling-house, was burned while in the store of a fur- to or removed by writ of prohibition, certiorari, error,
rier, to which it had been sent for repair. Held, that supersedeas, etc. 2. Those committed by sheriffs,
the insurer was liable, although the risk was increased : bailifCs, jailors, and other ofiBcers of the court — by
temporary removal or absence being necessarily in- abusing the process of the law or deceiving the parties ;
cident to the use of such property, and presumptively by acts of oppression, extortion, collusive behavior,
contemplated by the parties.' or culpable neglect of duty. 3. Those committed by
CONTEMPLATION. Bankrupt and in- attorneys (g. v.), who are also officers of court- by
gross fraud and cormption, injustice to their clients,
solvent laws provide that acts done " in con- or other dishonest practice. 4. Those committed by
jurymen — by making default when summoned, re-
shall be void.templation "of bankruptcy or iiisolvency fusing to be swom or to give a verdict, accepting
entertainment at the cost of a party, etc. 5. Those
> Coppell u Hall, 7WaU. 553 (1868), cases; The Anne, committed by witnesses — by making default when
3 Wheat. 445-46 (1818); 1 Kent, 53. summoned, by refusing to be sworn or examined, by
3 Con-sum'-mate. prevaricating in their evidence. 6. Those committed
»a Bl. Com. 188; 17 Ct. 01. 173. by parties — by disobedience to a' rule or order, by
« See 1 Bl. Com. 435. non-payment of costs, non-performance of awards,
» London, &c. Fire Ins. Co. v. Graves, 12 Ins. Law J. etc. 7. Those committed by any other persons — as
308 (1883), cases,— Superior Ct. Ky.: 43 Am. Rep. 34;
Longueville v. Western Assur. Co., 51 Iowa, 553 (1879). 'Arnold v. Maynard* 2 Story, 353 (1854); Morse v.
• Haws V. Fire Association of Philadelphia, 114 Pa. Godfrey, 3 id. 388 (1844); Everett v. Stone, ib. 453 (1844).
434 (1886). 2 Risen v. Knapp, 1 Dill. 194-95 (1870), cases; Martin
' Lyons v. Providence Washington Fire Ins. Co., 14 V. Toof, ib. 206, 211 (1870); Be Smith, 13 Rep. 296 (1881):
E. 1. 109 (1883), reversmg Same v. Same, 13 id. 347. E. S. 635.
Wis. I 5110; 4 Bankr. Eeg. 203; 21 How. Pr. 480; 61
' Noyes v. Northwestern Nat. Ins. Co., 64 Wis. 419-21
(1885), = L. cantemptus, scorn: temnere, to despise.
 CONTEMPT 343 CONTEMPT

in cases of forcible rescue, disobedience to the prerog- bedience or resistance by any officer, party, juror, wit-
ative writs. ness, or other person, to any lawful writ, process,
Some of these contempts may arise in the face of order, rule, decree, or command of a court.'
the court — as by rude and contumelious behavior, ob- Such has always been the power of the courts, both
stinacy, perverseness, prevarication, breach of the of common law and of equity. The exercise of the
peace, or other willful disturbance; others, in the ab- power has a twofold object: to punish disrespect to
sence of the party — as by disobeying the writ, rule, the court or its order, and to compel performance of
or other process of the court; perverting a writ or some act or duty. In the former cose, the court must
process to purposes of private malice, extortion, or judge for itself of the nature and extent of the pun-
injustice; speaking or writing contemptuously of the ishment. In the latter case, the party refusing to obey
court or judges acting in their judicial capacity; should be fined and impriboued until he i)erforms the
printing false accounts (or even true accounts, with- act or shows that it is not in his power to do it."
out permission) of causes pending in judgment; any- When a contempt is committed in facie curice, the
thing, in short, that demonstrates a gross want of that ptmishment is generally summary; when committed
respect without which the authority of the courts, elsewhere, initial proceedings are necessary, with no-
among the people, would be lost. tice, and opportunity to defend. A common initial
The process of attachment for contempts must nec- process is a rule to show cause why an attachment or
essarily be as ancient as law itself. Laws without warrant for contempt should not issue, of which serv-
authority to secure their administration from disobe- ice should be made. In a proceeding to punish for
dience wovdd be nugatory. The power, therefore, to criminal contempt, personal notice of the accusation
suppress a contempt by an immediate offender results is indispensable.^
from" the first principles of judicial establishments, 2. The power in a legislature to determine
and must be an inseparable attendant upon every su- the rules of its proceedings, and to punish for
perior tribunal.
If the contempt be committed in the face of the disorderly behavior, includes power to en-
court the offender may be instantly apprehended and force its rules in the customary way — by
imprisoned, in the discretion of the judges. But in attachment as for contempt.
matters that arise at a distance, if the judges upon The necessity for the existence and exercise of this
af^davit see sufttcient ground they may rule the sus- incidental power rests upon the principle of self-
pected party to show cause why he should not be at-
tached; in a flagrant case the attachment may be There is in the Constitution no express authority
preservation.*
issued in the first instance. Once in court, the party ^ for the power. Neither House of Congress is a court
must either stand committed or put in bail, in order to of judicature, as was Parliament originally. The
answer upon oath such interrogatories as shall be ad- Houses may punish for disorderly conduct or for fail-
ministered to him for the better information of the ure to attend sessions ; may decide contested elections,
court with respect to the circumstances of the con- determine the qualifications of members, impeach
tempt. These interrogatories are in the nature of a ofllcers of government. Where, in an examination
necessary to the performance of these duties, a witness
charge or accusation, to be exhibited within a reason-
able period, as, four days. If the party can clear proves contumacious, he may be fined and imprisoned;
but this can never be extended to an inquiry into his
[" purge," g. u.] himself upon oath, he is discharged.
If he confesses the contempt, the court may fine or private affairs, on the plea that he is a debtor to the
imprison him. This mode of trial, which is derived United States — that is a matter exclusively for the
from the courts of equity, is sanctioned by immemo-
rial usage.' judiciary.'
^Exp. Robinson, 19 Wall. 610-11 (1873), Field, J.;
While a justice of the peace has no power to pun- Fischer v. Hayes, 19 Blatch. 13, 18 (1881); Worden v.
ish a contempt committed before him, he may bind
the party to answer an indictment for obstructing the Searls, 121 U. S. 181-26 (1887): E. S. ! 725; 10 F. B. 639-
administration of justice, and to be of good behavior
' Be ChUes, 22 WaU. 168 (1874), Miller, J. ; Exp. Hol-
meanwhile.'
lis, 59 Cal. 408 (1881). See generally 22 Cent. Law J.
The act of Congress of March 2, 1831, "declaratory 464-66 (1886), cases. History of constructive contempt,
of the law concerning contempts of court," limits the 83 Alb. Law J. 145-47 (1886), cases.
power of the circuit and district courts to three classes • Wheeler & Wilson Manuf . Co. v. Boyce, 86 Kan. 866
of cases: 1, where there has been misbehavior of a
person^in the presence of a court, or so near thereto as (1887); Eapalje, Cont. i 96.
to obstruct the administration of justice; 2, where « 1 Kent, 286-37; 2 Story, Const §S 805-17.
there has been misbehavior of any ofBcer of a court in •Kilboum*. Tliompson, 103 U. S. 168, 181-205 (1880),
cases. Miller, J. It had been alleged that Jay Cooke
his ofttcial transactions; 3, where there has been diso-
& Co., bankrupts, who were indebted to the United
' 4 Bl. Com. 283-88. See 21 Conn. 199; 65 Ind. 508; 49
States', were interested in a "real-estate pool" in
Me. 392; L. R., 9 Q. B. 224; 35 Ala. 81; 16 Ark. 384; 25 Washington, D. C, and that their trustee bad settled
Miss 883- 37 N. H. 460; 29 Ohio, 330; 8 Oreg. 487; with the associates of the firm to the disadvantage of
13 K L 427; 29 Am. Law Keg. 81, 145, 217, 289, 361, 425 author
the creditors. The House of Representatives
the
(1881). ized a committee to be appointed to investigate
> Albright V. Lapp, 26 Pa. 101 (1886); The Queen v. matter. Kilboum, being subpoenaed, appeared before
the
Lefroy, L. E., 8 Q. B. 137-40 (1873). the committee, but refused to give the names of
 CONTIGUOUS
CONTENTS'. 244

The case ot Anderson v. Dunn ' declared that rep- oral contract is a suit to recover the " contents . .
resentative bodies possess inherently the power to of a chose in action," within the act ot March 3, 1887.
punish for contempt. For sixty years this decision The quoted words were taken from the judiciary act of
stood unquestioned. The repeated and unqualified 1789. Primarily they were intended to apply to com-
declarations of the principle by courts and text- mercial instruments, such as promissory notes, ac-
writers are to be traced to that case. The case of ceptances, and bonds, in which the sum promised is
^ilboum V. Thompson seems to deny that general and
familiarly spoken of as the "contents " of such in-
unlimited power exists inherently.^ strument. ^
A city council is not a legislature; nor is it vested A suit to enforce the specific performance of a con-
with judicial functions; and its, members are not tract isa suit to recover the contents of a chose in ac-
chosen with reference to their fitness to exercise such
tion, within the meaning of § 629, Rev. St."
functions. To allow it the right to imprison for refusal
to answer any inquiry the whole body or one of its 3. In the House of Lords the "contents"
committee may choose to make would be a dangerous are those who assent to, and the " non-con-
invasion of the rights and liberties of the citizen. . . tents "those who oppose, a bill.
The legislature cannot confer upon municipal bodies CONTEST.' To make the subject of
or officers, not courts of justice nor exercising judi- litigation ; to litigate ; to dispute or resist.
cial power, authority to imprison and punish without
Contestable. Disputable; subject to re-
the right of appeal or of trial by jury.s
CONTEIirTS. 1. The clause, in a biU of sistance ina court; opposed to non-contest-
able.
lading, "shipped in good order . . con- Contestant. A litigant ; a suitor.
tents unknown," acknowledges only fair ex- To contest an election means to deny the legality
ternal appearance ; it includes no implication thereof; to contest a will, to resist the probate of a
as to quantity, quality, or condition of the writing alleged to be a will, — see Influence ; Issue, 3,
article: so that a shipper must prove the Feigned.
Some policies of insurance, by covenant on the part
actual good conditi6n of the contents.' See of the insurer, are not contestable after a certain
Carrier.
period, as, three years, for a matter which arose prior
2. In the Judiciary Act of September 24, to the end of that period.
1879, § 11, in the phrase " any suit to recover CONTESTATIO. See Lis, Contestatio.
the contents of any promissory note or other CONTEXT. See Construction.
chose in action," means the sum named CONTIGUOUS. In actual close con-
therein, payable by the terms of the instru- tact ;touching ; near.
ment itself.' A relative term; referring to a building,
An action to recover damages for a refusal to ac-
cept and pay for merchandise purchased under an means in close proximity to the same.*
A building any particular number of feet, as twenty-
members of the pool, or to produce designated books five, from a detached dwelling, is not " contiguous "
and papers. The House ordered the speaker to issue
his warrant, directed to Thompson, the sergeant-at- The charter of a water-works company provided
arms, to arrest Kilbourn, who, when brought before to it.'it should not prevent the city council from grant-
that
the House, still refused to impart the desired informa- ing to persons " contiguous " to the Mississippi river
tion. For this contempt he was committed to the the privilege of laying pipes to the river for their own
custody of Thompson until he would obey the original use. Seld, that no lot can be contiguous unless it
subpoena, meanwliile to be confined in the common fronts on the river or is separated only by a public
jail of the District. At the end of forty-five days he highway, with no private owner intervening, or, pos-
was released on a Jiabeas corpus^ and at once sued the sibly, on a block or square so situated.* Compare
Adjacent; Along.
speaker, the committeemen, and the sergeant-at-arms
for forcible arrest, and imprisonment. The members
of the House were held protected from prosecution; > Simons v. Ypsilanti Paper Co., 33 F. E. 193-94 (
but a verdict for $60,000 damages was recovered Brown, J.
against Thompson. This verdict being set aside as = Shoecraf t v. Bloxham, 124 TJ. S. 730 (1888).
excessive, on the second trial $39,000 were awarded. * L. con-testari^ to call to witness.
This sum was reduced to $20,000, and paid by order of * Arkell v. Commerce Ins. Co., 69 N. Y. 193 (1877); 10
Congress, with interest, and costs. See MacArthur & Hun, 26.
Maokey, 401-38 (1883); 23 St. L. 467; Re Pacific Railway ' Olson V. St. Paul, &c. Fire Insurance Co., 35 Minn.
Commission, 33 F. B. 251-53 (1887).
1 6 Wheat. 204 (1831). ' New Orleans Water- Works Co. v. Ernst, 33 F. R. 6
"Exp. baltoii, 44 Ohio St. 150-53 (1886), cases. (1887), Billings, J., following Water-Works Co. v. Riv-
s Whitcomb's Case, 130 Mass. 183-24, 130-33 (1876), ers, 115U. 8.674(1886), which concerned the St. Charles
cases. Gray, C. J. Hotel, five blocks from the river. Compare New Or-
* Clark' iJ. Barnwell, 13 How. 283 (1851). leans Water-Works Co. v. Louisiana Sugar Co., 135
* Barney v. Globe Bank, 5 Blatch. 115 id. 18 (1888). 1
 CONTINGENCY 345 CONTINUANDO

CONTINGENCY.! An event which posite party admits what such witness would testify
to; inability to obtain the evidence of a witness out of
may happen; a possibility. A fortuitous
the State in time for trial; detention of a party in a
event which comes without design, foresight, public service; sickness or death of a party or of
or expectation. counsel; commission outstanding for taking testi-
A remainder which depends upon an uncertainty is mony; amendment to pleadings which occasions sur-
a "contingent" remainder. An expense which de- prise; filing a bill of discovery. An afSdavit to the
pends upon some future uncertain event is a " con- alleged fact constituting the ground for continuance
tingent "expense.'' is required. See Amendment, 1 ; Nisi.
" Contingencies," in an estimate of expenses, means Puis darrein continuance. Since the
expenses not yet ascertained, as yet uuimown, uncer-
tain, such as may or may not he incurred." last adjournment or term of court. A plea
Contingency with a double aspect. by which the defendant takes advantage of
Occurs where remainders are so limited that a matter which has arisen since he entered
one is a substitute for the other, in the event his original defense.!
As, that the plaintiff, who was then a feme sole, has
of the latter failing, and not in derogation of
married; or that she has given a release.*
the latter.' In eflEect, a pleading of facts occurring
As, a grant to A for hfe, and if he have a son, then
to the son in fee, and if no son, then to B. since the last stage of the suit, whatever that
Contingent. Possible; liable to occur; be, provided it precedes the trial.^
Confesses the matter which was before in dispute.
dependent upon an uncertainty : as, contin- Not allowed" if a continuance has intervened between
gent or a contingent — damage, demand or the time when the matter arose and when it was
liability, devise or legacy, estate or interest, pleaded: for the defendant is guilty of neglect, and is,
fee or compensation, remainder, use, qq. v. besides, supposed to rely upon his former plea. ^iTor
Applied to a use, remainder, devise, bequest, or is it allowed after a demurrer has been determined, or
other legal right or interest, impUes that no present a verdict been given: because relief may be had by
right exists, that whether a right ever will exist de-
pends upon a futm*e uncertain event.* motion. 3
The appointment of a successor in office, after pro-
An estate will not be held contingent unless decided ceedings bymandamus are begun, may be set up by
terms are tised, or it is necessary to infer that a con- a plea puis darrein continuarux. * See Continuando ;
Discontinuance.
' tingency was meant to carry out other parts of the
wm.s 3. " Continuance in office," in a constitu-
As a rule, contingent interests are assignable, devis- tion prohibiting the legislature from increas-
able, and descendible.' ing the compensation of any public officer
See also Absolute ; Aftee ; Cketain ; Then ; Upon, 2 ;
When. during such period, means continuance under
CONTINUANCE. 1. After an issue or one appointment.^ See Compensation, 1.
CONTINUANDO. L. By continuing ;
demurrer has been joined, as well as in pre-
vious stages of a proceeding, a day is given, by continuance.
In trespasses of a permanent nature, where the in-
and entered upon the record, on which the jury iscontinually renewed, the declaration may allege
parties are to appear from time to time as the that the injury has been committed by continuation
exigence of the case may require. The giv- from one given time to another. This is called " lay-
ing the action with a continuando." The plaintiff is
ing of this day is called the " continuance," not then compelled to bring a separate action for each
because thereby the proceedings are con- day's separate offense. But where the trespass is by
tinued without interruption from one ad- one or several acts, each terminating in itself, and be-
ing once done cannot be done again, it cannot be laid
journment to another.' with a continuando; yet if there be repeated acts of
2. Adjournment, postponement, to another
term of court. trespass committed (as, cutting a certain number of
trees), they may be laid to be done, not continually,
May be had on account of — the absence of a mate- but at divers days and times within a given period; "
rial witness, who has been subpoenaed, unless the op-
or on a given day and " on divers other days and times
between " that and another particular day.'
'L. con-tingere, to touch; to relate to, happen.
2 People V. Yonkers, 39 Barb. 272 (1863). See also 1 [3 Bl. Com. 29a. See Steph. PI. 04.
16 Op. Att.-Gen. 413; 30 Me. 3S4. > [Waterbury v. McMillan, 46 Miss. 640 (1872).
s See Fearne, Cont. Eem. 373. a 3 Bl. Com. 290; 4 Del. Ch..S52.
< Jemison v. Blowers, 5 Barb. 692 (1849); Haywood u. * Thompson v. United States, 103 U. S. 480, 483 (1880).
Shreve, 44 N. J. L. 104 (1888). 5 Smith V. City of Waterbury, 54 Conn. 176 '1886).
» Weather jead v. Stoddard, 58 Tt. 623 (1886), cases. •3B1. Com. 212.
•Kenyon t). See, 94 N. Y. 568 (1884). 'Gould. Plead. 86-96; State v. Bosworth, 54 Conn. 1
' [3 Bl. Com. 316. (1886): 58 N. H. 41.
 CONTINUINQ 316 CONTRACT

CONTtNUnirG. Extending from one ent. Articles exclusively used for peaceful purposes
are not contraband, though liable to seizure for viola-
time or condition to another: as, a continu- tion of blockade or siege. Contraband articles con-
ing— consideration, breach, damage, guar- taminate non-contraband, if belonging to the same
anty, nuisance, qq. v. See also Presump- owner. In ordinary cases the conveyance of contra-
tion. band articles attaches only to the freight.'
Provisions, and money, destined for hostile use, are
CONTrNTTOXIS. 1. Uninterrupted ; un-
intermitted; unbroken: as, a continuous contraband.^
Treaty provisions enumerate the articles which
adverse use; • that a custom (g. v.) must be shall be deemed contraband.
continuous; a continuous carriage, passage, CONTRACT.' 1, n. (1) An agreement,
trip, or voyage. 2 See Carrier, Common; upon sufiioient consideration, to do or not to
Lading, Bill of.
do a particular thing.*
2. As applied to an " injury," recurring at A compact between two or moreparties.*
repeated intervals, of repeated occurrence ; of An agreement in which a party under-
the same soirt of damnification an actual takes to do, or not to do, ,a particular thing.*
continuous mischief would be.^ Compare In the Constitution, as elsewhere, the
CONTESUANDO.
agreement of two or more minds, for con-
Non-continuous. A grant of a right or siderations proceeding from one to the other,
easement (g. v.) in lapdis " non-continuous" to do, ■ or not to do, certain acts. Mutual
when the use of the premises by the grantee assent to the terms is of the very essence.'
wiU be Only intermittent and occasional, and An interchange, by agreement, of legal
not embrace the entire beneficial occupation
and improvement of the land.* A deliberate engagement between compe-
rights.*
CONTRA. L. Against; in opposition tent parties, upon a legal consideration, to
to ; to the contrary effect ; contraiy. do, or to abstain from doing, some act.'
Standing alone (1) denotes opposition ot counsel to A promise from one or more persons to
matters urged in argument, as " A. B., contra; " (2) another or others, either made in fact or
indicates cases or authorities which do not agree with
others cited. See Con, 3; Countbe. created by the law, to do or refrain from
Contra bonos mores. Against good some lawful thing ; being also under the seal
morals, q. v. of the promisor, or being reduced to a judi-
Contra formam statuti. Against the cial record, or being accompanied by a valid
form (g. v.) of the statute. consideration, or being executed, and not
Contra pacenx. Against the peace, q. v. being in a form forbidden or declared inade-
Contra proferentem. Against the pro-
poser. See Verbum, Verba fortius, etc. In its quate
widestby law.'"
sense includes records and specialties,
but is usually employed to designate simple or parol
CONTEABANB.5 Contrary to a ban — contracts; i. e., not only verbal and unwritten con-
a public proclamation. tracts, but all contracts not of record or under seal.
Contraband of war. Prohibited by the This is strictly the legal signification, inasmuch as the
existence of a consideration which is necessary to
laws of war. Describes goods which a neu-
tral may not furnish to a belligerent. constitute a parol agreement is not requisite, or rather
Articles manufactured and primarily or ordinarily
used for military purposes in time of war are always ■ The Peterhoff, 5 Wall. 68 (1866), Chase, C. J.
contraband. Articles which may be used for war or 2 The Commercen, 1 Wheat. 387 (1816); United States
peace according to circumstances are contraband V. Dickelman, 92 U. S. 626 (1875); 1 Kent, 138^3.
only when actually destined to the use of the belliger- ^ L.con-iroAere, to draw together: for minds to meet.
* 2 Bl. Com. 442, quoting' some previous author.
> 59 Ind. 411 ; 4 De G. J. & S. 199; 18 F. E. 115. » Fletcher v. Peck, 6 Cranch, 136 (1810), Marshall, C. J.
' 4 Saw. tl4; 18 Weekly Dig. (N. Y.) 375. « Sturges V. Crowninshield, 4 Wheat. 197 (1819), Mar-
» Wood V. Sutcliffe, 8 Eng. L. & Eq. 220 (1851). shall, C. J. See also ib. 656, 682; 11 Pet. *572; 109 U. S.
* Jamaica Pond Aqueduct Corporation v. Chandler, 288; 113 id 464; 71 Ala. 432; 34 La. An. 45; 30 Tex. 422;
9 Allen, 164 (1864), Bigelow, C. J. ; Fetters v. Humph- 4 Tex. Ap. 321.
reys, 18 N. J. E. 262 (1867). ' Louisiana v. Mayor of New Orleans, 109 U. S. 288
* Contrabannum, in mediseval Latin, is merces (1883), Field, J.; Chase v. Curtis, 113 id. 464 (1885).
banno interdictas. " The sovereign of the country made » 1 Whart. Contr. § 1.
goods contraband by an edict prohibiting their impor- » Story, Contr. § 1 ; also 1 Pars. Contr. 6.
tation or their exportation,"— Woolsey, Int. Law, '"Bishop, Contr. § 22, where definitions from other
S 192; ib. H 192-99. See Ban. books are quoted.
 CONTRACT 347 CONTRACT

is presumed, in obligations of record and in special- Contractual. Arising out of a contract :

ties.' as, a contractual relation. Whence nonrcon-
There must be a person able to contract; a person tractual.
able to be contracted with; a thing to be contracted
for; a sufficient consideration; words clearly express- Besides the general distinctions noted be-
ing the agreement; and the assent of both parties to low, contracts are : accessory, when assuring
the same thing in the same sense. ^ the performance of another contract; alea-
A contract is resolvable into proposal and accept-
ance; the proposal not to bind beyond a reasonable tory, when performance depends upon an
time, and, until accepted, may be conditional. The uncertainty: as, an annuity, a contract of
place and time of acceptance are the place and time insurance; consensual, when dissolvable by
of the contract. The assent must be definite; non- mere consent ; dependent, when made to rest
refusal is not enough.^ See Understanding. Com-
pare Transaction. upon some connected act to be done by an-
(3) The language, written or unwritten, other— opposed to independent, in which
which evidences a mutual engagement or the acts have no inter-relation ; parol, when
exchange of promises. verbal or in writing but not under seal — op-
posed to sealed contract, which is a specialty ;
Does not, like "deed," "bond," or "promissory
note," necessarily import a written instrument.* It personal, when relating to personalty, or else
applies to agreements obligating both parties, hence requiring some action of a person — opposed
not to bills and notes.* to real, which regards realty, q. v. ; quasi,
Generally, "agreement" is the weaker, more ver- when the relation existing is analogous to
nacular word, "contract" the more technical and
forcible. " Agreement " is more apt to be used of an that of a contract, and the law attaches simi-
engagement formed by actual negotiation, but not em- lar consequences; separable or severable,
bodied in the most solemn formality of writing, seal, when divisible, not entire, q. v. ; simple,
etc.; "contract," where the intention is to embrace when evidenced neither by a specialty nor
the whole ribge of entorcible obligations created by
mutual consent. " Bargain " seems to be used like by a record: specialty (q. v.), when under
" contract " in importing a consideration and full legal seal ; verbal, when simple or parol. See also
obligation; like "agreement" in Implying actual ne- FiDU(3iARY; Hazardous; Maritdie; Oner-
gotiation and assent rather than definite legal for-
malities. ous; Quasi; Wagering.
In the best use " contract " does not embrace obli- More general and important distinctions
gations which society imposes for reasons of general are the following :
expediency, only obligations founded upon assent of Absolute contract. An agreement to
parties; nor a mere moral obligation, unrecognized do or not to do something at all events.
by law, deducible from a promise unsupported by a
consideration; nor a judgment; nor, generally, a Conditional contract. An executory con-
charter, nor a license from government; nor is a pub- tract, the performance of which' depends
lic office the subject of a contract. Marriage is rather upon a condition — precedent or subsequent.!
a civil or social status than a. contract. Obligations Bilateral contract. Two promises given
in which there is no apparent mutuality have been in exchange for and in consideration of each
excluded: mutuality of assent and of act being of the other. Unilateral contract. A binding
essence of a contract.
Formerly, lawyers spoke of " obligations " (mean- promise not in consideration of another.
A bilateral contract becomes unilateral when, one
ing bonds, in which "obliged" is a formal term),
" covenants," and " agreements " — the last word be- promises is fully performed."
of Inthea suit
ing used as " contract " is now used." upon a unilateral contract, it is only where
the defendant has had the benefit of the considera-
3, V, adj. Agreed to ; stipulated ; under-
taken; incurred. tion, for which he bargained, that he can be held
A "debt contracted " may include a debt founded bound. ^
Divisible contract. A contract the con-
upon a tort.*^ sideration ofwhich is, by its terrm, suscepti-
•Story,
Contr. Contr.
S§ 103, 1; also
140, § 151, 162.
1 Parsons, Contr. 6; Bishop,' ble of apportionment on either side so as to
2 Justice u Lang, ii N. Y. 497 (1870). correspond to the unascertained considera-
a 1 Whart. Contr. Chap. I. tion on the other side. Entire contract.
4 Pierson v. Townsend, i Hill, 551 (1842).
0 SafEord v. WyokofE, 4 Hill, 456 (1842).
» [Addison, Contr. *l-2. Am. ed., A. & W. (188S). note ] 1 Story, Contr. §§ 39-40.
See also Bishop, Contr. §§ 191-92, 107. ! Langdell, Sum. Contr. §§ 163, 12; Bufler v. Thomp-
' Be Radway, 3 Hughes, 631 (1877); State v. O'NeU, 7 son, 92 U. S. 415 (1875); 6 Col. 324.
Oreg. 142 (1879). 8 Richardson v. Hardwick, 106 U. S. 255 (1882), cases.
 CONTRACT 248 CONTRACT

A contract the consideration of which is en- ought to do a particular thing the law supposes him
tire on both sides. The entire fulfillment of to have promised to do that thing. ^
In that large class of transactions designated in the
the promise by either is a condition prece- law 'as implied contracts, the assent or convention
dent to the fulfillment of any part by the which is an essential ingredient of an actual contract
other. 1 is often wanting. Thus, if a party obtain the money
Examples of a divisible contract are an engagement of another by mistake, it is hisduty to refund it, from
to pay a person the wortli of Ills services as long as lie the general obligation to do justice which rests upon
will do certain work; or, to give a certain price for all persons. 3
every bushel of so much grain as corresponds to a A contract may be inferred when it is found that
sample. The criterion is, the extent of the consider- there is an agreement and an intention to create a con-
ation on either side is indeterminate until the con- tract, although that intention has not been expressed
tract is performed.' in words of contract. A. contract is also sometimes
A contract by which one subscribes for a copy of a said to be implied when there is no intention to create
book, to bq puljlished, delivered, and paid for in parts, a contract, and no agreement of parties, but the law
is entire. 2 has imposed an obligation which is enforced as if it
Special contract. (1) A contract under arose ex contractu^ instead of ex leg'e.^
seal ; a specialty, q. v. The distinction between express and implied con-
tracts may well be indicated by saying that the former
(2) A contract incidental to another as the are actual, the latter constructive, imputed by law
original or principal ; as, for extra work or rather because justice requires treating parties as if
material in the construction of a house. See under contract than because of any real supposition
Dermott v. Jones, page 249. that they have contracted. *
(3) A contract specially entered into, or Joint contract. A contract by which
with peculiar provisions in distinction from the parties together are bound to perform the
such ordinary terms as, in the absence of a obligation or are entitled to receive the benefit
particular agreement, the law supplies. of it. Several contract. A contract by
As, that made with an employee for compensation, which the individuals are separately con-
and that with a common carrier (g. v.) in limitation of cerned.
his liability at common law. Where there is more than one person on either side
Express contract. When the agree- the contract will be construed as a joint right or ob-
ment is f orinal, and stated either verbally or ligation, unless it be made several by the terms of the
in writing. Implied contract. When the contract.* See further Joint.
Executed contract. A contract whose
agreement is matter of inference and deduc-
tion. object has been performed. Executory
The distinction betrfveen them is in the mode of contract. One in which a party binds him-
proof. In an " imphed contract " the law supplies self to do, or not to do, a particular thing.6
that which, not being stated, must be presumed. to A contract may either be "executed,'" asif Aagrees
have been the agreement intended.^ to change horses with B, and they do it immediately,
Express contracts are sometimes said to be of rec- in which case the possession and the right are trans-
ord, by specialty, or by simple contract. See Debt, ferred together; or it may be " executory," as if they
Of record, etc. ; Judgment. agree to change next week. In the latter case the
An "express contract " exists-where the terms of right only vests, and their reciprocal property in each
the agreement are openly uttered and avowed at the other's horse is "in actioii; " for a contract executed
time of the making; as, to pay a stated price for conveys a chose in possession, a contract executory,
certain goods. An " implied contract " is suchas rea- a chose in action.^
son and prejudice dictate, and which therefore the law A " contract executed " is one in which nothing re-
presumes that every man undertakes to perform; as, mains to be done by either party, and where the trans-
to pay the worth of services requested of another; to action iscompleted at the moment the agreement is
pay the real value of goods delivered without agree- made. An " executory contract " is a contract to do
ment as to price. A species of implied contract, some future act. A contract to sell personalty is
annexed to all other contracts, cdnditions, and cove- executory, while a completed sale by delivery is ex-
nants, is,that if one party fails in his part of the agree-
ment he will pay the other party any damages ' Illinois Central E. Co. v. United States, IB Ct. CI.
333 (1880), Drake, C. J. See also 55 Vt. 417; 2 Kent, 460.
thereby sustained.*
An implied contract is co-ordinate and commensu- = Pacific Mail Steamship Co. v. JolifEe, 3 Wall. 457
rate with duty^ and whenever it is certain that a man (1864); Milford v. Commonwealth, 144 Mass. 65 (1887).
> ' Inhabitants of Milford v. Commonwealth, 144 Mass.
• Story, Contr. §§ 25-26; Pars. Contr. 517; 3 McCrary, 65 (1887), Field, J.
169; 3 id. 130, 144-46, cases. ' Addison, Contr, *3, Am. ed., A. & W. (1888), note.
2 Barrie v. Earle, 144 Mass. 4 (1886). 6 Story, Contr. §§ 53-65.
> Story, Contr., § 11 ; Leake, Contr. 11, «'aBl.
[Fletcher
Com. v.448.
Peck, 6 Cratch, 136 (1810), Marshall, C. J.
* 2 Bl. Com. 443; 3 id. 158-66.
 CONTRACT 349 CONTRACT

ecuted; but as to which is meant the language may For cases other than those within the Statute of
not always be decisiTe. An undertaking may be of Frauds, there is no prescribed form.
the nature of both.i At common law, damages for breach of contract is
In an " executoiy contract " it is stipulated by the the only remedy; in equity, specific performance (g, v)
agreement of minds, upon sufficient consideration, may be had. Where one party refuses to perform his
that something is to be done or not to be done by one part the 'other has an immediate right of action, and
or both of the parties. Only a slight consideration is need not wait for the time of performance, i See
necessary. On the other hand, a contract is "ex- Value, Market.
eciUed " where every thing that was to be done is A mere assertion that the party will be unable or
done, and nothing remains to be done; as, a grant will refuse to perform his contract is not sufScient; it
actually made. This requires no consideration to sup- must be a distinct, unequivocal, absolute refusal to
port it: a gift consummated is as valid as anything perform the promise, and be treated and acted upon
can be.'* as such by the promisee. ^
An executed contract stands for and against all The complaint must aver a promise and a breach
parties. To the extent that an invalid contract is not
thereof.'
It is well settled that the plaintiff may recover as a
performed, it is voidable.'
While a special contract remains executory the part of the damages for the breach of a special con-
tract such profits as would have accrued from the
plaintiff may sue upon it. When it has been fully ex-
ecuted according to its terms, and nothing remains to contract as the direct and immediate result of its ful-
be done but to pay the price, he may sue upon the fil ment.'These
" are part of the contract itself, and
contract, or in indebitatus assumpsit,a.jidrelj upon the must have been in the contemplation of the parties
common counts. In either case the contract will de- when the agreement was entered into. But if they
termine the rights of the parties. But when he has are such as would have been realized from an inde-
■ been guilty of fraud, or has willfully abandoned the pendent and collateral undertaking, although entered
work, leaving it unfinished, he cannot recover in any into in consequence and on the faith of the principal
form of action. When he has in good faith fulflUed contract, they are too uncertain and remote to be con-
the contract, but not in the manner or not within the sidered pai't of the damages." ^ That is, the damages
prescribed time, and the other party has sanctioned " must be such as might naturally be expected to fol-
low the violation of the contract; and they must be
or accepted the work, he may recover upon the com- certain in their nature and as to the cause from which
mon counts in indebitatus assumpsit. In that case he
must produce the contract upon the trial, and it will they proceed. The familiar rule that the damages
must flow directly and naturally from the breach is
be applied as far as it can be traced; but if, by the
a mode of expressing the first; and that they must be
fault of the defendant, the cost of the work or mate-
rial has been increased, so far the jury may depart the proximate consequence, and not be speculative or
from the contract prices. In such case the defendant contingent, are modifications of the lust."' In cases
of executory contracts for the purchase of personalty,
may recoup any damages sustained by plaintiff's de- ordinarily the measiue of damages is the difference
viations from the contract, and not induced by him-
between the contract price and the market price when
self, both as to the manner and the time of perform- the contract is broken. This rule may be varied where
ance.*
Pre-contract. An engagement which 1 Gran v. McVicker, 8 Hiss. 18-80 (1874), cases, Drum-
renders a person unable to enter into another mond, J.; Burtis u. Thompson, 43 N. Y. (Hand), 346
legal contract; in particular, a contract of (1870); Cort v. The Ambergate, &c. E. Co., 6 E. L. &
marriage which renders void a subsequent E. 230, 234-37 (1851), cases.
marriage.' a Benjamin, Sales, 2 ed. § 568. Approved, Smoot's
Case, 15 Wall. 48 (1873), cases; Dingley v. Oler, 117 U. S.
Sub-contract. A contract, by one who 503 (1886), cases; Johnstone v. Milling, 16 Q. B. D. 467,
has engaged to do a thing, with another who 470, 478 (1886), cases.
= Du Brutz V. Jessup, 70 Cal. 75 (1886).
agrees to do all or a part of that thing. See * Masterton v. City of Brooklyn. 7 HUI, 67 (1845), Nel-
CONTBACTOB.
son, C. J.,— the leading case; United States v. Speed,
A contract, procured by fraud, or for an immoral 8 Wall. 84 (186S); United States v. Behan, 110 U. S. 342
purpose, or against an express enactment, or in gen- (1884) ; Insley v. Shepard, 31 F. E. 873 (1887). In Master-
eral restraint of trade, or contraiy to public policy, ton's case it was also said that "the plaintiff may re-
will be declared void. cover the difference between the cost of doing the work,
and what he was to receive for it, making a reason-
1 Story, Contr. §§ 22-23. able reduction for the less time engaged, and the re-
= Farrington v. Tennessee, 95 U. S. 683 (1877), cases, lease from the care, trouble, risk, and responsibility
Swayne, J.
attending the full execution of the contract."
3 Thomas v. West Jersey E. Co., 101 U. S. 85 (1879). ' Fox V. Harding, 7 Cush, 522 (1851), Bigelow, J.
4 Dermott v. Jones, 3 Wall. 9 (1864), Swayne, J. ; Chi- « Griffln v. Colver, 10 N. Y. 489 (1858). See also Booth
v.
cago V. Tilley, 103 U. S. 146, 154 (1880), cases; Cutter
v. V. EoUing Mill Co., 60 id. 492 (1875), cases; White
Powell, 2 Sm. L. Cas. 1-60, cases; Chitty, Contr.,
612; Miller 71 id. 133 (1877), cases; BUlmeyer v. Wagner, 91
49 Conn. 203; 30 K&n. 338. Bank
Pa. 94(1879); 48 id. 407; 11 Atl. Eep. 300; Kendall
4 1 Bl. Com. 435; Bishop, Mar. & D. § 53. Note Co. V. Commissioners, 79 Va. 573 (1884).
 CONTRACT CONTRACT
250

the contract is made in view of special circumstances Contracts are to be construed according to their
in contemplation of both parties.^ plain meaning to men of understanding, and not ac-
When a party sues for a part of an entire indivis- bording to forced or artificial constructions.'
ible demand, and recovers judgment, he cannot sub- The court seeks to place itself in the place of the
sequently maintain an action for another part of the parties, and to view the circumstances as they viewed
samp demand.'^
Where a writing is the sole repository of an agree- Where the meaning is not clear the court takes the
ment, its construction is a matter of law for the them.2 of the
light ' circumstances in which the contract was
court. Words are to be taken in the meaning usually made, and the practibal interpretation the parties by
attached to them. But a true interpretation requires their conduct may have given it.^
that they be applied to the subject-matter, the situ- When the language is ambiguous, the practical in-
ation of the parties, and the usual and known course terpretation given by the parties is entitled to great,
of business. The common meaning of expressions, if not controlling, influence. ^
otherwise clear, may thus be modified by parol, with- Such practical construction will always prevail over
out invasion of the rule which makes the writing the the literal meaning.*
only proper evidence of the agreement. ^ It is a fundamental rule that the courts may look
In construing contracts, especially those of a dis- not only to the language employed, but to the subject-
tinct class (like policies of insurance), in regard to matter and the surrounding .circumstances, and avail
which, owing to long and constant use of forms sub- themselves of the light the parties possessed when the
stantially alike, there has grown up a common and contract was made. ^
general use of language which may be said to consti- Written instruments are always to be construed by
tute jus et norma loquendi, — it is not safe to adopt the court, except when they contain technical words
the mere etymological meaning of words, nor the def- or terms of, art, or when the instrument is introduced
inition which lexicographers give them. It is often in evidence collaterally, or where its effect depends
necessary to ascertain whether a word or phi-ase has not merely on the construction and meaning of the in-
acquired a special or peculiar meaning, or whether it strument but upon extrinsic facts and circumstances,
is used with any restricted signification by authors or in which case the inference to be drawn from It must
jurists or those conversant with the business to which be left to the jury. . It is for the jury to say what
it relates.'* is the meaning of peculiar expressions, but it is for
the court to decide what is the meaning of the con-
tract. ^ " f
' Western Union Tel. Co. v. Hall, 134 U. S. 444, 453 It is the business of the courts to enforce contracts,
(1888), cases, Matthews, J. The plaintiff brought suit not to make or modify them.^
fa- damages for the non-delivery of a message in- The law of contracts, in its widest extent, may be
sti-ucting the addiessee to buy 10,003 barrels of petro- regarded as including nearly all the law which regu-
leum, the price of which, when the message should lates the relations of human life. All social life pre-
uavc been delivered, was Sl-1''' per barrel, but when sumes it, rests upon it: out of contracts, express or
i:eLeived had advanced to §1.35 per barrel. The ad- implied, declared or understood, grow all rights, all
dressee d^d not purchase. Held, that the plaintiff, duties, all obligations, all law. Almost the whole pro-
having suffered no actual loss, could recover only cedure of human life is the continual f ulflllment of
nominal damages, not the contingent profit he might contracts. . Implied contracts are co-ordinate and
have made by buying and selling. commensurate with duty, with what a man ought to
In Hadley v. Baxendale, 9 Exch. *3M (1854), it was do. These, in particular, form the warp and woof of
said "the damages for which compensation is al- actual life. To compel the performance of contract
lov-'ed are such as naturally and ordinarily flow from duties, the law exists. The well-being of society may
tiip breach; such as may be supposed to have entered be measured by the degree in which the law construes
into the contemplation of the pai'ties when they made contracts wisely; eliminating whatever is of fraud or
the contract, or such as, according to the ordinary error, or otherwise wrongful; and carrying them into
course of things, might be expected to follow its viola- their full and proper effect and execution. These re-
tion." The rule as here expressed has been frequently sults the law seeks by means of principles; that is, by
followed in this counti-y, as see Murdock v. Boston, &c.
E. Co.. 133 Mass. 15 (1882); Bodkin v. Western Union
Tel. Co., 31 F. E. 136 (1887); Poposkey v. Mmikwitz, 68 1 Lowber v. Bangs, 2 Wall. 737 (1864), cases; Nash v.
Wis 330 (1887), cases; and cases anie. Towne, 5 id. 699 (1866), cases.
■'In an action for a breach of contract to deliver iron ^ Goddard v. Foster, 17 Wall. 142 (1872), cases, Clif-
the plaintiff recovers the difference between the con- ford, J. ; Dewelley v. Dewelley, 143 Mass. 513 (1887): 20
tiact price and the market price at the date of the re- Pick. 503.
fusal to fulfill the contract." Roberts v. Benjamin, 3 Chicago V. Sheldon, 9 Wall. 54 (1869); Topliff u Top-
124 U. S. 04 (1888), cases, Blatchford. J. liff, l:.'2 U. S. 131 (1887).
■■^Baird v. United States, 92 U. S. 433 (1877); Warren ^ District of Columbia v. Gallaher, 124 U. S. 5t0 (1888);
V. Comings, 6 Cush. 103 (1850), cases. Rowell V. Doggett, 143 Mass. 487(1887).
3 Palmer v. Clark, 106 Mass. 387 (1871), Colt, J. See "^Merriam v. United States, 107 U. S. 441 (1882), cases,
Bishop, Contr. §§ 379-82, cases. Woodq, J. See also United States v. Gibbons, 109 id.
200, 203 (1883).
■• Dole V. New Eng. Mut. Ins. Co., G Allen, S
Bigelow, C. J. oThe Harrimau, 9 Wall. 173 (1869); 10 id. 171.
 CONTRACTOR 351 CONTRIBUTION

means of truths, ascertained, defined, and so expressed CONTRACTUS. L. A drawing together :

as to be practical and operative.'
a meeting of minds ; a contract. See Forum ;
See further Aqbeement; Akt, 3; Assent; Assion, 8;
■ Assumpsit; Certainty; Compact; Condition; Con- Locus.
Ex '
contrac tu. By virtu'j of a contract.
SIDEBATION, 2; CONTRACTOR; CONTRACTUS; COVENANT;
CoNVENTio; Custom; Damages; Description, 4; Disa- Applied to a right or a duty founded upon a
BiLiTYi Duress; Duty, 1; Earnest; Exception, 1; contract relation. Opposed, ex delicto: by
Fraud; Grant; Implied; Influence; Insanity, 8 (4); force of a wrongful act, or tort.
Leoal; Let, 1 (3); Letter, 3; License, 8; Herqeb,'8; Whence actions ex contractu and ex delicto. See
Novation; Oblioation; Offer, 1; Option; Pact; Action, 8; Delictum.
Parol, 2; Partnership; Party, 2; Performance; The civil law refers the greater part of rights and
Place, Of contract; Possible; Privity; Promise; duties to the head of obligations ex contractu and
Ratification; Readino; Repohm; Res, Perit, Utres;
Rescission; Revfval; Sale; Satisfactory; Stultify; quasi ex contractu : express and implied contracts.'
Subrogation; Sunday; CONTRADICT. See Parol ; Rebut.
Time; Trade; Usds, Utile;
Value; Void; WArvEB; War. CONTRARY. A verdict " contrary to
CONTRACTOR. The primary meaning law " is contrary to the principles of law ap-
is one who contracts ; one of the parties to a plicable tothe facts which the jury were to
bargain; he who agrees to do anything for try. 2 See Against.
another. CONTRAVENE. To conflict, oppose.
One who contracts with a government to Whence contravention.
furnish provisions or supplies or to do work ; A right which militates with another right is some-
one who agrees to construct a portion of a times called a " contravening equity." s
CONTRIBUTION. The share provided
work, as, a raiboad.^
by or due from one of several persons to as-
St.-nding alone, or unrestrained by the context or
particular words, may mean a sub-contractor or a sist in discharging a common obligation or in
person remotely engaged under a contract and doing advancing a'common enterprise.*
the work, as well as an oiiginal contractor. ^ Contributive; eontributory. Helping
Although, in a general sense, every one who enters
to bring about a result; directly contribut-
into a contract may be called a " contractor," yet that
word, for want of a better, has come to be used with ing to an injury: as, contributory negli-
special reference to a person who. in the pursuit of an gence, g. V.
independent business, undertakes to do specific jobs " Contributory " is also used in the sense
of work for other persons without submitting himself
of contributor: a person liable to contri-
to their control in respect to the petty details of the
work. . . The true test is to ascertain whether one bution to the assets of a company which is
who renders the service does so in the course of an in- being wound up, 3. v.
dependent occupation, representing the will of his em- A right to contribution exists where a debt owed by
ployer only as to the result of his work and not as to several persons jointly is collected from one; when
the means by which it is accomplished. . If he one of two or more sureties pays the sum for which
submits himself to the discretion of his employer as to both or all are bound ; when one co-devisee or co-dis-
the details of the work, fulfilling his will not merely as tributee pays a charge upon land devised or descended;
to the result but also as to the means by which that when a partner pays more than his share of the firm's
result is to be attained, the contractor becomes a debts; where recourse to private property is had to
servant in respect to the work.^ pay the debt of an insolvent corporation; where a co-
The ordinaiy relation of principal and agent, master insurer pays the whole loss; where a party-wall or a
and servant, does not subsist in the case of an inde- division-fence is constructed or repaii-ed.*
pendent employee or contractor who is not under the Equal contribution to discharge a joint liability is
immediate direction of the employer.* not inequitable, even as between wrong-doers, al-
See Phillips Construction Co. v, Seymour, under though the law will not, in general, support an action
CovENAiiT; Respondeat. to enforce it where the payments have been unequal.''
(1879), cases. See also Robinson v. Blake Manuf. Co.,
1 1 Pars. Contr. 1-5; 2 Bl. Com. 443: 3 Law Quar. Rev. 143 Mass. .o:B (1887); 27 Conn. 274; 45 111. 453; 3 Gray,
166-79 (1887). 349; 4 Allen, 13S; 11 id. 419; 125 Mass. 232; 66 N. Y. 184;
'Kent V. N. T. Central R. Co., 18 N. Y. 631 (WVj). 46 1Pa.
= Mundt V. Sheboygan, &c. R. Co., 31 Wis. 4.57 (187.'), 2 Bl.2i:J; 5" id.
Com. 413.374; 9 31. & W. "'73.
Dixon, C. J. ; 12 N. Y. 631 ; B How. Pr. 434 ; 23 Minn. S24. " [Bosseker v. Cramer, 18 Ind. 45 (1863); Candy u
•Shearman & Redf., Neg. §§ 76-77: quoted, 71 Me. Hanmore, 7U id. 128 (1881).
332; 7 Lea, 373; 57 Tfex. 510. See also Carter v. Berlin 2 101 U. S. 73;).
Mills Co., 58 N. H. 52-58 (1876), cases; Edmundson v. 4 [Abbott's Law Diet.
Pittsburgh, &c. R. Co., Ill Pa. 319 (1885); 86 id. 159; 17 * See 1 Story, Eq. §§ 484-305.
Mo. 131. «Selz V. Unna, 6 Wall. 336 (1867), CUfford, J.; 28
• Cunningham v. International R. Co., 51 Tex. 511 Conn. 455; 1 Bibb, 562.
 CONTROL 253 CONVERSATION

The remedy in equity is more effective; as, between the order of a court or legislature. Whence
co-sm'eties,^
contumacious. See Contempt.
But there is "no contribution between wrong- CONUSANCE. See Cognizance.
doers." This rule applies appropriately only to oases
where there has been intentionat violation of law, CONUSOR. See Recognizance.
and where the wrong-doer is to be presumed to have CONVENIENTLY. See Soon.
■ known that the act was unlawful.^ It fails when the Whatever it is the duty of an ofiicer to do. in the
injury grows out of a duty resting primarily upon one performance of service enjoined by law, and which
of the parties, and but for his negligence there would may be accomplished by the exercise of reasonable
have been no cause of action against th^e other. . .
A servant is liable to his master for the damages re- diligence, that he can "conveniently "do.'
CONVENTIO. L. A coming togefher :
covered against him in consequence of the negligence
of the servant. 3 agreement, engagement. ^
A municipality, made to pay damages for an injury Conventio vinoit legem. Agreecient
resulting from the negligence of a private citizen, takes the place of the. law : the express vjn-
may recover the amount from the citizen.* See Av- derstanding of parties supersedes such under-
erage, General; Joint.
standing as the law would imply.
CONTROL. See Prohibition; Regulate. Parties are permitted to malce law for themselves
In a contract by a railroad company concerning the where their agreements do not violate the express pro-
roads which it might '* control," held to refer to the visions ofany municipal law nor injuriously affect the
immediate or executive control which it exercised by
officers and agents acting under instructions f roin the interests of the public*
Setting aside the application of a general rule of
board of directors.^
law is not intended. ^
The " control " is a necessary incident to the " reg- CONVENTION. A general term for
ulation "of the streets of a city. •*
CbNTEOLLEB. See Comptroller. any mutual engagement, formal or informal.
See CoNVENTio.
CONTROVERSY. Any issue, whether
Conventional. Agreed upon; created
of a civil or criminal nature ; a case, q. v.
A dispute arising between two or more by act of parties — by agreement ; opposed
to legal — created by construction and oper-
persons.'
A civil proceeding; as, that the judicial power of ation of law: as, a conventional estate fo;-
the United States shall extend " to Controversies to life ; * a conventional community, q. v.
wliich the United States shall be a Party; — to Contro- There are postal conventions between nations; and
versies between two or more States," etc.« constitutional conventions by delegates chosen to
A controversy between citizens is involved in a suit frame constitutions, q. v. Compare Reconvention.
whenever any property or claim of the parties capable
CONVERSATION. 1. The etymolog-
of pecuniary estimation is the subject of litigation,
ical meaning (which see, below) seems to be
and is presented by pleadings for judicial determina-
preserved in the offense termed criminal
tion." conversation: adultery regarded as an injury
See further Case, 2, Cases, etc.; Dispute; Matter;
Probate; Remove, 2. to the husband, entitling him to damages in
CONTUMACY.io Refusal or neglect to a civil action.5
appear or to answer in a court ; contempt for The abbreviation " crim. con." has acquired
■ White, Ld. Cas. CO; 1 Ld. Cas. Eq. 100; 13 Am. Law a fixed and universal signification which the
Reg. 539. courts will take notice of without proof.*
2 Bailey v. Bussing, 28 Conn.'468-61 (1S59), cases; The The dev^loplnent of the word has been substantially
Atlas, 93 U. S. 315 (1876), cases; The Hudson, 16 F. B. as follows: L. conversation frequent use, habitual
1B7 (1883), cases; 13 Bradw. 665. abode, intercourse: conversari, to turn to often, to
= Men-yweather v. Nixon, 3 Sm. L. C. 483, 480, cases; dwell, live with.
Chicago City v. Eobbins, 3 Blacl!;, 418 (1862); Eobbins (1) Manner of living; habits of life; behaving, be-
V. Chicago City, 4 Wall. 657 (1866). havior; conduct; life.
« Clinton, &c. R. Co. v. Dunn, 59 Iowa, 619 (1882),
cases; Cooley, Torts, p. 145. 1 Guerin v. Reese, 33 Cal. 297 (1867).
^ Pullman Palace Car Co. v. Missom-i Pacific R. Co., = Little Eock, &c. E. Co. u. Eubanks, 48 Ark. 467
3 McCrary, 647 (1882). 33 N. Y. 249.
s Chicago Dock Co. v. Garrity, 115 111. 164 (1886). "Story, Agency, § 368; 14 Gray, 446; 52 Pa. 96; 10
'Barber v. Kennedy, 18 Minn. 326 (1873); 33 id. 360; Wall. 644.
77 Va. 125. * 2 Bl. Com. 120.
' 3 Bl. Com. 139.
» Constitution, Art. Ill, sec. 2;. 3 Dall. 431-32; 109
U. S. 477; Stoiy, Const. § 1668. ' Gibson v. The Cincinnati Enquirer, 5 Cent. Law J.
s Gaines v. Fuentes, 93 U. S. 20 (1876), Field, J.; Searl 381 (1877); Same v. Same, 3 Flip. 136 (1877). See Wales
V. School District, 124 id. 199 (1888), cases, Matthews, J. V. Miner, 89 Ind. 118 (1883); 15 Am. Law Reg. 451-60
'° L. contumax, stubborn, obstinate. (1876), cases.
 CONVERSION 253 CONVERSION

As, in the expressions: " of upright conversation; " • and explicit, and the will, it it be by will, or the deed,
" the filthy conversation at the widced," = — ».<;., their it it be by contract, must decisively fix upon the land
lascivious life; "the conversation o£ the wives the quality of money. The direction to sell must be
chaste conversation." ^
(2) Intimate relation, association; companionship; imperative."'
A naked or merely discretionary power to sell, un-
familiar intercourse. less, perhaps, coupled with an interest, does not effect
(8) Sexual acquaintance; illicit intimacy. a conversion,^
3. Familiar discourse ; oral communica- Where land is to be sold, and legatees interested in
the proceeds elect to take it as such, it then becomes
tion. See Communication; Colloquium;
DECLARATION, 1. boimd by liens."
Th^re is no conversion where a widow elects to take
CONVERSION". Changing into another against a will directing a sale.*
state or condition.
To ' effect a reccmversion, an election to take the
1. Of partnership debts:, the changing of land, instead of the proceeds, must be by an unequivo-
cal acton the part of all persons interested."
their original character and obligation with
Intention is the governing rule as to conversions.*
the consent of the creditors ; so that, if they
3. Any unauthorized dealing with an-
are originally joint debts of all the partners,
other's personalty as one's own.
they become, by consent, the separate debts The exercise of dominion and control over
of one partner ; or if they are the separate property inconsistent with and in defiance of
debts of one partner, they become, by like the rights of the true owner or party having
consent, the joint debts of all the partners.*
the right of possession..'
3. In equity, money which, according to a This may be actual, and either direct or
will or agreement, is to be invested in land is constructive.
regarded as realty ; and land which is to be It is not necessary that there be a manual taking of
converted into money is regarded as money, the thing, nor that the defendant has applied it to his
and treated accordingly. * own use. The one inquiry is: Does he exercise a do-
minion over it in exclusion or in defiance of the plaint-
Whence the doctrine of eq,mtable con-
iff's right? K so, that is a conversion, be it for his
version; whence, also, reconversion: the
own or another's use.^
-change of property, once converted, into Trover and conversion. The action for
other property of the former species. damages for a conversion, maintainable by
The application to deeds and wills of the principle
him who has the right to immediate posses-
which treats that as done which ought to be done.®
A conversion will be regarded as such only for the
The property may be a deed, a negotiable security,
purposes of the will, unless a different intention is dis- sion.9
tinctly indicated.' money? a copy of a record, an untamed animal re-
An implied direction to sell land, for the payment claimed, trees or crops severed, liquors adulterated, or
of legacies, works an equitable conversion. The im- goods confused.
mediate effect of such direction is to break the de- Includes using a thing without right, or in excess of
scent, by vesting the estate in the trustee clo Lhed with license; misuse — detention, delivery in violation of
power to sell, and to confer on the legatees, not an in-
terest in the land, but simply a right to the proceeds ' Anewalt's Appeal, 42 Pa. 416 (1862), cases; Jones v.
Caldwell, 97 id. 45 (1881), cases; Hammond v. Putnam,
of the sale, in designated proportions,— which is a
no Mass. 235 (1873); 8 Yes. 388; 19 id. 424.
mere chose in action.^
When the purpose for which the conversion was to 2 Bleight V. Bank, 10 Pa. 131 (1848); Chew v. Nicklin,
take place totally fails, the property is regarded as 45 id. 84 (1863); Dundas's Appeal, 04 id. 335 (1870).
' Brownfleld v. Mackay, 27 Pa. 320 (1856) ; Brolasky v.
being what it is in fact, no conversion then taking
place. Gaily, 51 id. 513 (1806); Evans's Appeal, 63 id. 183 (1869).
< Hoover v. Landis, 76 Pa. 354 (1874).
" Toaestablish a conversion, the will must direct it
absolutely or out and out, irrespective of all contin- « Beatty v. Byers, 18 Pa. 107 (1851); Evans's Appeal,
gencies. The direction to convert must be positive eupra; 8 Va. Law J. 513 (1884).
" See generally Fletcher v. Ashburaer, 1 Brown, C.
' The King's Bible (1011) — Psalms, xxxix, 14. C. •497(1779): 1 W. & T. Lead. Cas. Eq. 1118-71, cases;
i'2Pet. ii, 7.
1 Story, Eq. §§ 562-71, 790-93; 2 id. §§ 1212-30; 3 Kent,
> 1 Pet. iii, 1-3. 230, 476; Craig v. Leslie, 3 Wheat. 577-78, 583 (1818); 10
4Story, Partn. §369. Pet. •563; 6 How. 233; 4 Del. Ch. 72; 15 B. Mon. 118; 27
» Seymour v. Freer, 8 Wall. 214 (1868). Md. 563; 3 Gray, 180; 63 N. C. 332, 381 ; 5 Paige, Ch. 172;
• Chew V. Nicklin, 45 Pa. 87 (1863); De Wolf v. Law- 6 id. 448; 13 E. I. 507.
son, 61 Wis. 477-78 (1884), cases; Efflngeru Hall, 81 Va. ' Badger v. Hatch, 71 Me. 565 (1880), Barrows, J.
107 (1885). 8 Bristol V. Burt, 7 Johns. '»258 (1810), Per curiam.
» Johnson v. Holifleld, 88 Ala. 127-28 (1886), cases. Mass. 64; 1 Sm. L. O.230; 89Ind.
245.•3Bl.Com.152; 127
» Beatty v. Byers, 18 Pa. 107 (1851).
 CONVEYANCE CONVEYANCE
354

orders, or non-delivery and even a wrongful sale, by a In anant, 1.deed, is equivalent to " grant.'V See Cove-
bailee; improper seizure or sale by an officer; not an
accidental loss, nor mere non-feasance.' An original Imports an instrument under seal,^
unlawful taking is conclusive; but where the original May include a lease,' or a mortgage.*
taking is lawful, and the detention only is illegal, a de- Is simply a deed which passes or conveys land from
mand and refusal to deliver is necessary and must be one man to another,"* or ccnveys the property of lands
shown. 8 and tenements from man to man.** Evidences an in-
The action of trover and conversion, though origi- tention to abandon the land.^
nally for damages against one who bad found and ap- Involves a transfer of a freehold estate.^
propriated the goods of another, now reaches all cases Absolute conveyance. A conveyance
where one has obtained such goods by any means, and entirely executed ; not conditional, as in the
has sold or used them, without assent, or has refused
to deliver them on demand. 3
case of a mortgage, q. v.
The measure of damages is the value of the prop- Adverse conveyance. A conveyance
erty at the time of the conversion, with legal interest.'*, opposed to another conveyance ; one of two
As to what is conversion of public moneys by pub-
lic ofacers, see Eevised Statutes, §§ 6488, 5496.
or more conveyances passing or pi-etending to
See further Detinue; Replevin; Trover. pass rights which are inconsistent with each
other.
COlfVEYANCE.s A carrying from As, two or more transfers of absolute ownership in
place to place; also, transmission, transfer, the same piece of land to different persons. See Pos-
from one person to another. session, Adverse.
1. Transportation, — the act, or the means Conveyances at common law. Some
employed. of these may be called original or primary,
Public conveyance. A vessel or vehicle those by means whereof the benefit or estate
employed for the general conveyance of pas- is created or first arises; others, derivative
sengers. Private conveyance. A vessel or secondary, those whereby the benefit or
or vehicle belonging to and used by a private estate originally created is enlarged, re-
individual.^ strained, transferred, or extinguished.'
An omnibus used to carry, free of charge, guests of Original are: feoffment, gift, grant, lease, exchange,
a hotel to and from railroad stations is not a " pub- partition. Derivative are: release, confirmation, sur-
lic" Conveyance.'' See Vehicle. render, assignment, defeasance — each of which pre-
2. Transfer of title to realty ; and, the in- supposes some other conveyance precedent.^
strument bywhich this is done. Conveyances under the Statute of
Properly, the term does not relate to a disposition TTses. Such as have force and operation by
of personalty, although sometimes so used,^ as see virtue of that statute, i"
under JiYaudulent Conveyance. They are: covenant to stand seized to uses, bargain
The conveyance or transfer of title to vessels is and sale, lease and release, deed to lead or declare the
regulated by the act of July 29, 1850, re-enacted into use of another more direct conveyance, deed or revo-
Eev. St. as § 4192.
cation of a use.^'
To "convey" real estate is, by an appro- At common law, words of conveyance were give,
priate Instrument, to transfer the legal title grant, bargain and sell, alien, enfeoff, release, confirm,
from the present owner to another.' quitclaim, qq. v. The meaning of these terms has
been somewhat modified.i^

1 3 Bl. Com. 162, etc., ante. 1 Patterson v. Carneal, 3 A.. K. Marsh.* 621 (1821);
" 1 Chitty, PI. 179; 126 Mass. 132; 2 Greenl. Ev. § 644. Lambert v. Smith, 9 Oreg. 193 (1881).
3 Boyce v. Brockway, 31 N. Y. 493 (1865), cases; 61 id. ^Livermore v. Bagley, 3 Mass. 510-U (1807).
477; 68 id. 521; 10 Johns. 172. ■ See also 9 Ark. 55; 2 Cal. ' Jones V. Marks, 47 Cal. 246 (1874).
571; 19 Conn. 319; 10 Cush. 416; 2 Allen, 184; 36 Me.
* Odd Fellows' Savings Bank v. Banton, 46'cal. 607
439; 85 N. C. 340; 39 N. H. 101; 48 id. 406; 10 Oreg. 84; (1873); Babcook v. Hoey, 11 Iowa, 377 (1860); Kokettu.
9 Heisk. 715; 39 Vt. 480; L. R, 7 Q. B. 029; 9 Ex. 89. Buckner, 45 Miss. 245 (1871); Eowell v. Williams, 64
< Grimes v. Watkins, 59 Tex. 140 (1883); 46 id. 402; 6 Wis. 639 (1882). See N. Y. E, S. 762, § 38; 2 id. 137, § 7.
id. 45. As to limitation of actions, see 21 Cent. Law » Brown v. Fitz, 13 N. H. 285 (1842); Klein v. McNa-
J. 245-47(1885), cases. mara, 54 Miss. 105 (1876).
• 2 Bl. Com. 309.
*F. convier, to transmit; L. conviare, to accompany.
' 2 Bl. Com. 10.
"Ripley V. Insurance Co., 16 Wall. 338 (1872), Chase,
C. J.; Oswego v. Collins, 38 Hun, 170 (1886). 8 Hutchinson v. Bramhall, 42 N. J. E. 385 (1886).
' City of Oswego v. Collins, 88 Hun, 171 (1886). 1 2 Bl. Com. 309, 324; 9 Oreg. 187.
* Dickei-man v. Abrahams, 21 Barb. 561 (1854). >» i Bl. Com. 309, 327.
' Abendroth v. Town of Greenwich, 29 Conn. 365 " 2 Bl. Com. .338-39.
(1860); Edelman «., Yeakel, 27 Pa. 29 (1856). " Eichardson v. Levi, 67 Tex. 367 (1887).
 CONVEYANCE 255 CONVEYANCE

The forms of conveyance are prescribed by stat- In England, all voluntary conveyances are void as
utes in many .States; but such statutes are gener- to subsequent purchasers, with or without notice, al-
ally deemed directory only, not mandatoi'y; and though the original conveyance was bona fide, upon
the common-law modes are recognized as effectual. the ground that the statute infers fraud.'
Conveyance by bargain (g. v.) and sale is the mode In New York, only voluntary conveyances, originally
ordinarily practiced. fraudulent, are held to be within the statute.^ In
Whatever be the form or nature of the convey- Massachusetts, a conveyance, to be avoided, must have
ance, ifthe grantor sets forth on the face of the in- been fraudulent, not merely voluntary, at its incep-
strument, byway of recital or averment, that he is tion. ^ In Pennsylvania, the grantor must have in-
possessed of a particular estate in the premises, which tended, by his voluntary conveyance, to withdraw his
estate the deed purports to convey, or if the possession property from the reach of his future creditors; * any
is affirmed in the deed in express terms or by neces- such creditor must prove that fraud on him was in-
saiy implication, the grantor and persons in privity tended: a man need not provide for mdebtedness he
with him, are estopped from denying that he was so does notanticipate and which may never occur.* And
possessed. The estoppel works upon the estate, and the Supreme Court of the United States holds, what
binds an after-acquired title. * See ABASnoN, 1 ; Con- is the settled doctrine generally, that if a person,
dition; Deed, 3; Delivery, 4; Estoppel; Infldenob; natural or artificial, solvent at the time, without actual
Eecoed; Tbansfer; Undeb and Subject. intent to defraud creditors, disposes of his property
Fraudulent conveyance. In a general for an inadequate consideration, or makes a voluntary
conveyance of it, subsequent creditors are not in-
sense, any transfer of property, real or per- jured; *that a conveyance for value (as for marriage)
sonal,2 which is infected with fraud, actual will be upheld, however fraudulent the purpose of
or constructive; more specifically, such the grantor, if the grantee had no knowledge thereof.'
transfer of realty by a debtor as is intended A deed made to prevent a recovery of damages tor
or at least operates to defeat the rights of a tort is fraudulent and void.'
Conveyances to defraud creditors are also indictable ;
his creditors. Voluntary conveyance. A
expressly made so by 13 Elizabeth, o. 5, § 3."
transfer without valuable consideration. The conveyance to a wife, in payment of a debt
Celebrated statutes upon this subject, adopted by owing by her husband, is not voluntary, nor fraudulent
the States, are: (1) 13 Elizabeth (1571), c. 5, which de- as to other creditors; but there must have been «.
clares void conveyances of lands, and also of goods,
previous agreement for repayment.'"
made to delay, Mnder, or defraud creditors; unless See further Declaration, 1; Fraud; Hinder; Pos-
" upon good [valuable] consideration, and bona fide," to session, Fraudulent; Preference; Settle, 4.
a person not having notice of such fraud. (3) Z! Eliza- Mesne conveyance. A conveyance be-
beth (1585), c. 4, made perpetual by 39 Eliz. (1597), c. 18,
tween others ; an intermediate transfer.
s. 31, which provides that voluntary conveyances of
any estate in lands, tenements, or other heredita- Reconveyance. A transfer' of realty
ments, and conveyances of such estates with clause of back to the original or former grantor.
revocation at the will of the grantor, are also void as
Conveyancer. One who makes a busi-
against subsequent purchasers for value. The effect ness of drawing deeds of conveyance of land,
of the last statute is, that a person who has made a
voluntary settlement of landed property, even on his and, perhaps, of examining titles.
One whose business it is to draw deeds, bonds,
own children, may afterward sell the property to any
mortgages, wills, writs, or other legal papers, or to
purchaser, who, even though he has notice of the set- examine titles to real estate.''
tlement, vrill hold the property; but, otherwise, if the
settlement is founded on a valuable oonsideration.s ' 1 Story, Eq. § 426.
These statutes are to be liberally construed in sup- 2 Sterry v. Arden, 1 Johns. Ch. *269-70 (1814): s c. 13
pression offraud.* Johns. 'SDl (1815); 6Cowen, 603; 8 id. 406; 8 Paige, 1C5.
The object of 13 Elizabeth was to protect creditors 3 Deal V. Warren, 3 Gray, 456, 451 (1854).
* McKibbin v. Martin, 64 Pa. 356 (1870).
from frauds practiced under the pretense of discharg-
ing a moral obligation toward a wife, child, or other "Harlan v. Maglaughlin, 90 Pa. 297-98 (1879), cases;
relative. It excepts the bona fide discharge of such Hoak's Appeal, 100 id. 62 (1882), cases.
obligation. Hence, a. voluntary conveyance, as to • Graham v. La Crosse, &c. R. Co., 103 U. S. 153 (1880),
creditors, is not necessarily void.* The object of 37 cases, Bradley, J.
Elizabeth was to give protection to subsequent pur- ' Prewit V. Wilson, 103 U. S. 34 (1880), cases. See
chasers against mere volunteers under prior convey- Barbour v. Priest, ib. 393 (1880); Clark v. KilUan, ib.
ances. As between the parties such conveyances are 706 (1880); 17 F. E. 425-28, cases; Sexton ti. Wheaton, 8
binding.'
Wheat. 242 (1823); 1 Am. L. C. '36, 55; Twyne's Case, 1
1 Van Rensselaer v. Kearney, 11 How. 323 (1850), Sm. L. C. *33, 39; 18 Am. LawEeg. 137.
cases; French v. Spencer, 31 id. 340 (1858); Apgar v. 8 Johnson v. Wagner, 76 Va. 590 (1882), cases.
Christophers, 33 F. E. 803 (1887), Wales, J. » Eegina v. Smith, 6 Cox, Cr. C. 31, 36 (18.53).
» See liivermore v. Bagley, 3 Mass. *510-11 (1807). '» Bates V. McConnell, 31 F. E. 588 (1887); i6. 591, note.
'Williams, Eeal Prop. 76. 23
See generally 24 Am. Law Eeg. 489-99 (1885), cases;
.
« 1 Story, Eq. |§ 353-53, 362; 4 Kent, 463-64. Cent. Law J. 134 (1886), cases,- remedy by execution
"IStory, Eq. §425. " Eevenue Act, 13 July, 1866, § 9: 14 St. L. 118.
 CONVICT CONVICT
356

Conveyancing. That branch of the law In many eases refers to a finding of guilt by a veiv
diet or plea of guilty, and not to the sentence in Eiddi-
■which treats of transfers of realty.
Inclufles the examinations of titles, and the prep-
aration of instruments of transfer. In England, Opposed, acquit, acquitted, acquittal, q. v.
Scotland, and some of our larger cities, it is a highly tion.i
Former conviction. A plea that the
artificial system of law, with a distinct class -of prac- accused has already been tried and convicted
ti oners. ^
of the offense charged. Opposed, former
CONVICT.2 1, V. To find guilty of a
acquittal.
ci-iminal offense, by verdict of a jury. Second' convictions, or even second trials, after
2, n. One who has been found guilty of a legal conviction or acquittal, are not allowed. The
crime; in particular, one who is serving a pleas of autrefois convict and autrefois acquit are
sentence for the commission of a crime. grounded upon the universal maxim of the common
law that no man is to be brought into jeopardy of his
Convicted. Found guilty of the crime life more than once for the same offense. The defense
whereof one stands indicted: which may must be pleaded, and it must be alleged and proved
accrue from his confessing the offense and by the former record that the conviction or acquittal
pleading guilty, or by his being found so by was legal, and based on the verdict of a jury duly im-
paneled and sworn, else the plea will be subject to
verdict of his country. ^
A man is "convicted " when he is found guilty or demurrer. 2
A plea which shows that the former sentence has
confesses the crime before judgment had.'
Incapable of holding office or testifying because been reversed for error is not a good bar." See fur-
ther Jeopardy. Compare Adjudication, Former.
" convicted of crime " intends a verdict of guilt and
judgment thereon. ^ Summary conviction. (1) Such sen-
Conviction. 1. Used to designate a par- tence as may be pronounced by a court with-
ticular stage of a criminal prosecution triable out the intervention of a jury.
At common law, peculiar to punishment for con-
by a jury, the ordinary legal meaning is, the tempts, g.V.
confession of the accused in court, or the
(3) A trial of an offense against the excise
vei-dict returned against him by the jury, or revenue laws, determined by the commis-
which ascertains and publishes the fact of
sioner of the particular department or by a
his guilt. <>
"Judgment" or "sentence" is the appropriate justice of the peace.*
word to denote the action of the court before which (3) A sentence pronounced by a commit-
the trial is had, declaring the consequences to the con- ting magistrate, without a hearing and ver-
vict of the fact thus ascertained." See Sentence. dict by a jury.
The finding by the jury that the accused is guilty; Tliis is what is generally meant. It is provided for
but, in legal parlance, often denotes the final judg- by statute, for the punishment of the lighter offenses;
ment of the court. ^ and intended to secure the accused a speedy trial, as
The act of convicting or overcoming one ; well as to relieve society and the higher courts of the
annoyance of jury trials in petty cases. But the pro^
in ci'iminal procedure, the overthrow of the
ceeding is in derogation of the constitutional right of
defendant by the establishment of his guilt
trial by jury, and statutory directions are to be strictly
according to some known legal mode — a pursued. Appeal to -a court having a jury is allowed,
plea of guilty or verdict of a jury. 8 within a short period, as five days; so that, in reality,
The term may be used in such connection as to these convictions are only submitted to by offenders.
have a secondary or unusual meaning, which would See further Summary.
include the final judgment of the court. = See also Indictment; Juky, Trial by; Vagkant.
2. Firm belief. See Abiding ; Doubt, Rea-
1 Bouvier's Law Diet. sonable.
^ L. con-vincere. to completely overcome.
' [4 BI. Com. 363. 1 Quintard v. Knoedler, 63 Conn. 487-88 (1885) ; Bishop,
< Shepherd v. People, S5 N. Y. 406 (1863), cases; 1 Stat. Cr § 348; Whart. Cr. Pr. & PI. § 935. Qucere. In
Bish. Cr. L. § 323.
a prosecution, alleging a " former conviction," do not
'Faunoe v. People, 61 111. 313 (1869); Smith v. State, these words denote "final judgment," and can they
6 Lea, 639 (1881). be predicated of a suspended judgment? — White o.
"Commonwealth v. Lockwood, 109 Mass. 325-40 Commonwealth, 79 Va. 611, 615 (1884).
(1873), cases. Gray, J. ; Dwar. Stat., 8 ed., 683. 2 Coleman v. Tennessee, 97 U. S. 636-31 (1878), cases,
Clifford, J.
' Blauf us V. People, 69 N. Y. 109 (18""), cases, Fol-
ger, J.; Schiffer v. Pruden, 64 id. 53 (1876); 5 Bush, 304; 'Cooley, Const. Lim. 336-28, cases; 1 Bish. Cr. L.
48 Me. 137; 3 Mo. 603; 35 Gratt. 853; 13 Ct. CI. 301. §§ 651-80; Whart. Cr. PI. § 435; Moore v. State, 71 Ala.
8 United States v. Watkinds, 7 Saw. 91-93 (1881), 308 (1883), cases: 4 Cr. Law Mag. 429.
Deady, J. * See 4 Bl. Com. 280-83.
 357
CONVINCE
COPY
CONVINCE. To overcome or subdue: written or printed, or of a design, device,
to satisfy the mind by proof, i See Doubt, picture, or work of art.i Compare Tran-
Reasonable. script.
COOLnSTG TIME. Time for passion to Certified or ofB.ce copy. A copy made
subside and reason prevail ; time for reflec- and attested by the officer who is intrusted
tion. with the custody of an original writing, and
A man, when assailed with violence or great rude- authorized to make copies.
ness, is inspired with » sudden impulse of anger,
Every document of a public nature, as to which in-
which puts him upon resistance before he has had convenience would be occasioned by a removal, and
time for cool reflection. If, during that period, he at- which the party has a right to inspect, may be proved
tacks his assailant with a weapon likely to endanger
by a duly authenticated copy."
his life, and death ensues, it is regarded as done
through heat of blood or violence of anger, and not
Examined copy. A copy compared with
throueh malice." See Halice; Pbovocation. the original, or with an official record thereof.
COOPER. See Manufacturer. Exemplified copy. A copy attested
CO-OPERATIVE. See Association; under the seal of the proper court; an ex-
Trades-union. emplification (g.V.) of record.
CO-ORDINATE. See Jurisdiction, 3. An examined copy of a record is evidence where
the removal of the original would inconvenience the
COPARCENARY. The estate held
public. Fraud or mistake therein can be readily de-
where lands of inheritance descend from the tected.' See Record, Judicial.
ancestor to two or more persons. ' A copy of a will may be received in probate.*
Where an original is lost, or withheld after notice
Coparceners. Co-heirs are called co- to produce, a copy will be received.*
parceners, and parceners : they may be com- To be evidence, a copy must also be complete.'
pelled to make "partition.'' the
In making examined copies, the comparing wit-
All parceners make but one heir. They have nesses should change hands, so that the Ustening wit-
unities of interest, title, and possession of joint- ness may in turn become the reading witness.'
tenants. No unity of time is necessary; for the heir Such copy should be proved by some one who has
of a parcener and siu-vlving parcener are coparceners. compared it with tlie original.'
Parceners always claim by descent; joint-tenants by The rule that a copy of a copy is not admissible
purchase. They sue and ai-e to be sued jointly. They evidence is correct in itself, when properly understood
may not have an action for waste against each other: and limited to its true sense. The rule properly ap-
that can be prevented by partition. Bach has a distinct plies to cases where the copy is taken from a copy,
moiety, with no survivorship. Possession being sev- the original being still in existence and capable of
ered by partition, they become tenants in severalty; bemg compared with it, for then it is a second remove
when one aliens his share they become tenants in from the original; or where it is a copy of a copy of
common. Where they divide amicably each elects a a record, the record being in existence, by law deemed
share by seniority, which is a personal privilege. as high evidence as the original, for then it is also a
Under a writ m partition, the sheriff, by the verdict of second remove from the record. But it is quite a dif-
a jury (or commissioners) divides and assigns the ficult question whether it applies to cases of second-
s.' ary evidence where the original is lost, or the record
part
In the old sense, includes males and females; hi of it is not deemed as high evidence as the original,
modem English usage, is limited to females.* or where the copy of a copy is the highest proof in
Of comparatively little practical importance at
existence.'
A letter-press copy is receivable, the original being
heirs take as tenants in common.'
present. Withus,Paetitio k; Tenant.
See Hotch-pot; lost. While secondary at best, a copy from such a
COPARTNER. See Partner.
copy, the original being lost, has been allowed."
COPPERS. See Coin. I Abbott's Law Diet.
COPY. A true transcript of an original = Stebbinsv. Duncan, 108 U. S. 60 (1882), cases; Shutes-
v.
writing.* bury V. Hadley, 133 Mass. 247 (1882), oases; Booth
Tieman, 109 V. S. 208 (1883).
A reproduction or transcript of language, ' 1 Greenl. Ev. § 91.
1 Evans v. Eugee, 57 Wis. 636 (1883). I I wmiams, Ex. 364.
= Commonwealth v. Webster, 5 Gush. 308 (1850), » 1 Greenl. Ev. § B08.
Shaw, C. J. See also Abemethy v. Commonwealth, « Commonwealth v. Trout, 76 Pa. 382 (1874).
Whart. ' 1 Whart. Ev. § 94.
101 Pa. 323 (1882); 71 Ala. 485; 3 Gratt. 594;
Horn. 448; Auss. Cr. 667. 'McGinniss v. Sawyer, 63 Pa. 287 (1869).
3 2 Bl. Com. 187-90; 3 id. 227. « Winn V. Patterson, 9 Pet. *677 (1836), Story J.
* 4 Kent, 866. 10 See Goodrich v. Weston, 102 Mass. 363 (1889), cases;
« 1 Washb. R. P. 415. 555;
1 Cush 189- 7 Allen, 561; 3 McCrary, 169; 37 Conn.
• Dickinson v. Chesapeake, &c. E. Co., 7 W. Va. 412 57 Ga 50- 73IU.161; 18 Kan. 546; 19 La. An.
91 ; 85 Md.
(1874): Bouvier. 123 ■ 44 N Y 178; 1 Whart. Ev. 81 90-109, cases.
(17)
 358
COPYHOLD COPYRIGHT

COPYHOLD. Lords of manors, from script which is the title of his literary property. It
does not rest upon the theory that, the author has an
time out of mind, having permitted villains
exclusive property in his ideas or in the words in which
to enjoy their possessions without interrup- he has clothed them. . No person, for example,
tion, in a regular course of descent, the com- can acquire an exclusive right to appropriate the in-
mon law, of which custom is the life, gave formation contained in a translation, chart, map or
the villains title to prescribe against the survey. . Frequently, it is necessary to determine
whether the defendant's work is the result of his own
lords, and, on performance of the same serv- labor, skill, and use of materials common to all, or is
ices, to hold the lands under the lord's will, an appropriation of the plaintiff's work, with colorable
that being in conformity with the customs alterations and departures intended to disguise the
of the manor as preserved and evidenced by piracy. He may work on the same original materials,
the rolls of the courts-baron.' but he cannot evasively use those already collected
and embodied by the skill, industry, and expenditure
In England, to-day, a copyhold, in a gen-
eral way, distinguishes a customary tenure of another.'
The earliest evidence of the recognition of copy-
from a freehold. right is found in the charter of the Stationers' Com-
COPYRiaHT. An exclusive right to pany, granted by Philip and Mary, and in the decrees
of the court of star-chamber. 'The first statute was
the multiplication of the copies of a produc- 8 Anne (1710), c. 19; passed for the protection and en-
tion. 2 couragement oflearned men. This statute gave the au-
The sole right of printing, publishing and thor and his assigns the sole liberty to print his work
for fourteen years; the author to be entitled to an ex-
selling one's literary composition or book.s tension for another like term. But, the better opinion
A copyright gives the author or the pub- is that the common law, before that statute, admitted
lisher the exclusive right of multiplying the exclusive right in the author, and his assigns, to
copies of what he has written or printed.* multiply copies of his own original literary composi-
The word may be understood in two senses. tion, for injunctions to protect this right were granted
The author of a literary composition has an in eqiiity. At all events, it has long been settled that
the common-law right was taken away by the statute,
undoubted right at common law to the piece and, hence, that it has existed, if at all, by force of
of paper on which his composition is written, some subsequent statutory provision.^
and to the copies he chooses to make of it for With us, before the adoption of the Constitution, it
himself or others. . . The other sense is, may be doubted whether there was any copyright at
the exclusive right of multiplying copies : the common law. Some of the States had passed laws
right of preventing others from copying, by recognizing and securing the right. All power in the
States to legislate upon the subject became vested ia
printing or otherwise, a literary work which
the author has published ; the exclusive right Congress. "The Congress shall have power .
To promote the Progress of Science and useful Arts,
of printing a published work, that being the by securing for limited Times to Authors and Invent-
ordinary mode of multiplying copies. * ors the Exclusive Kight to. their respective Writings
The word is used indifferently for eom- and Diseoveries." ' Under this authority various gen-
eral acts have been passed, from that of May 31, 1790,
mon-law copyright: copyright before pub- to that of Jtme 18, 1874; all which, as re-enacted, con-
lication; and statutory copyright: copy- stitute §§4948 to 497I of the Revised Statutes, known as
right after publication.- It is also made a the title or chapter on " Copyrights."
" Any citizen of the United States or resident
synonym for "literary property'' — the ex- therein, who shall be the author, inventor, designer,
clusive right of an owner publicly to read or
or proprietor of any book, viap, chart, dramatic or
exhibit his work ; but this is not strictly cor- musical composition,, engraving, cut, print, or photo-
rect.* graph or negative thereof, or of a painting, drawing,
A oqpyright secures the proprietor against the copy- chromo, statue, statuary, and of models or designs
ing by others of the original work, but does not confer intended to be perfected as works of the Jme arts, and
upon him a monopoly in the intellectual conception the executors, administrators, or the assigns of any
which it expresses. The law originated in the recog- such person shall, upon complying with the provision
nition of an author's right to be protected in the manu- of this chapter, have the sole liberty of printing, re-
Jg Bl. Com. 96, 90, 147; Williams, R. P. 333. ' Johnson v. Donaldson, 18 Blatoh. 289-90 (1880), cases,
" [Stephens v. Cady, 14 How. 530 (1858), Nelson, J. Wallace, J. See also Be Brosuahan, 18 F. R. 64-65
See R. S. § 4952.
' [Stowe 1). Thomas, 2 Wall. Jr. 667 (1853), Grier, J. » See 2 Bl. Com. 406-7; 3 Kent, 373; MUlar v. Taylor,
* Ferris v. Hexamer, 99 U. S. 675 (1878), Waite, C. J. 4 Burr. 2408 (1769); Stevens v. Gladding, 17 How. 454
" JefEerys v. Boosey, 4 H. L. C. 919-20 (1854), Parke, B. ; (1834); 18 id. 165; 2 Story, 100; 5 McLean, 32; 6 id. 188;
Cappell V. Purday, 14M. & W. 316 (1845), Pollock, C, B. 16 Alb. Law J. 445, 465 (1877); Drone, 1.
• See Drone, Copyr. 100. » Constitution, Art. I, sec. 8, cl. 8.
 COPYRIGHT 259 COPYRIGHT

printing, publishing, completing, copying, executing, volume or number of a periodical, or variety, or de-
finishing, and vending the same; and, in case of a scription.
dramatic composition, of publicly performing or rep- In the case of a painting, statue, model, or design,
resenting it,or causing it to be performed or repre- a photograph of " cabinet " size must accompany the
sented by others." R. S. § 4958. description and application.
" The printing, publishing, importation, or sale of No affidavit or formal application is required.
any book, map, chart, dramatic or musical composi- At present, 1888, the fees are; fifty cents each for
tion, print, cut, engraving, or photograph, written, recording a title, description, etc., for a certificate,
composed, or made by any person not a citizen of the or a duplicate certificate; and one dollar for each as-
United States nor resident therein," is not to be con- signment, i
strued as prohibited. R. S. §4971. No mention being The right is infringed when another person pro-
here made of paintings, drawings, chromos, statues, duces asubstantial copy of the whole or of a material
~ statuary, models, or designs, there would seem to be part of the thing copyrighted. ^
nothing to prevent a resident owner from copyright- To constitute an invasion of copyright it is not
ing any such, although the work of a foreigner. ' See necessary that a large portion of a work be copied in
further Proprietor, 1. form or in substance. It so much is taken that the
"Engraving, cut, and print" CR. S. § 4958) apply value of the original is sensibly diminished, or the
only to pictorial illustrations or works connected with labors of the original author substantially, to an in-
the fine arts; and no prints or labels designed to be jurious extent, appropriated, that is an infringement.
used for any other article of manufacture shall be en- Courts look to the nature and objects of the selections
tered under the copyright law, but may be registered made, the quantity and value of the materials used,
in the patent office.^ See Print. and the degree in which the use may prejudice the
Manufacturers of designs for molded decorative sale or diminish the profits, or supersede the object of,
articles, titles, plaques, or articles of pottery or metal, the original work.^
subject to copyright, may put the copyright mark Evidence of the coincidence of errors, the identity
upon the back or bottom of such articles, or in such f of inaccuracies, affords strong proof of copying; so
other place upon them as it has heretofore been usual does coincidence of citation, and identity in plan and
for manufacturers to employ, s arrangement. Equity may not relieve where the
The period is twenty-eight years from the time of amount copied is small and of little value, where
recording the title; with a right of renewal for four- there is no bad motive, where there is a well-founded
teen years, in the author, inventor, or designer, or Ijis doubt as to the legal title, or long acquiescence or cul-
widow or children, being still a citizen or resident. pable neglect in seeking redress. A copyright thus
K S. §§ 4953-54. differs from a patent-right, which admits of no use at
A printed copy of the title (not title-page) of the all without license.*
book, map, chart, etc., or a description of the paint- Recent decisions afford more ample protection to
ing, drawing, etc., or a model or design of the work of copyright than the earlier ones ; they restrict the priv-
art, as the case may be, is to be deposited with or ilege of subsequent writers within narrower limits.*' ^
mailed to the Librarian of Congress; and, within ten A production, published under a nom de plume, and
days after pubhcation, two complete copies of the not copyrighted, becomes public property; and the
best edition of each book or* other article is also to be use of the assumed name is not a trade-mark which
sent to him.* will protect against republication.^
The print .of a type-writer will be accepted. See An action for the penalty for infringement, pro-
Title, 2, Book. vided by R. S. I 4965, abates by the death of the de-
' Notice of copyright must be given by some imprint
on the title,— leaf, face, or front-piece. The shortest fendant.®
See further Abridge; Art, 2; Book, 1; Chart;
form is "Copyright, 1888, by A. B." The penalty for Compile; Composition, 1; Dedication, 3; Directories;
an unauthorized notice is one hundred dollars. Identity, 2; Letter, 3; Manuscript; Photograph;
"Registered" is not the equivalent of "copy- Piracy, '2; Report, 1 (2); Review, 3; Science; Se-
ctrKK, 1; Translation; Usos, Ancipitis, Utile, etc.
right." '
"Right of translation reserved," or " All rights re- Compare Patent, 8; Trade-mark.
served," secures the right to translate or to dramatize
the production. See Drama; Reserve, 8. lUpon application to the Librarian of Congress,
Assignments must be in writing, and recorded within printed directions for securing a copyright wUl be fur-
sixty days. nished free of charge.
A separate copyright must be taken out for each 'Perris V. Hexamer, 99 U. S. 674 (1878).
sFolsom V. Marsh, 2 Story, 116(1844); Lawrence v.
Dana, 4 Cliff. 81-83 (1869), cases.
1 Drone, Copyr: 238. But see Yuengling v. Schile, 20 * Lawrence v. Dana, 4 Cliff. 74-75, 80 (1869), cases;
Blatch, 46S-63 (1888).
R. S. §§ 4964-65.
2 Act 18 June, 1874: 1 Sup. R. S. 41. 'Clemens ("Mark Twain") v. Belford, 11 Biss. 461
3 Act 1 Aug. 1882: 22 St. L. 181 ; amending E. S. §§ 4968, (1883): 15 Rep. 227; 14 F. R. 720.
959.
« Schreiber v. Sharpless, 17 F. R. 589 (1883). See gen-
■"See Merrell v. Tice, 104 U. S. 561 (1881); Donelly v.
erally ib. 59.3-603, cases. R. S. §§ 4964-67, providing
Ives, 13 Rep. 890 (S. D. N. Y., 1882); 1 Blatch. 618.
penalties for infringements, explained,— Thornton v.
'Higgins V. KeufEel, 30 F. R. 627 (1887). Schreiber, 124 U. S. 613-16 (1888), Miller, J.
 CORAM S60 COEPOEAIION

CORAM. L. Before ; in the presence of. felted thereby; and he is also to certify the whole of
Coram nobis. Before us. Coram vobis. the inquisition, with the evidence, to the court of
Before you. king's bench or to the next assizes. Another branch
of his office was to inquire generally concerning ship-
Designate, the first, a writ of error de- wi-ecks, and treasure-trove. His ministerial office is
signed to review proceedings before the same as the sheriff's substitute: when exception is taken
court which is alleged to have committed the to the sheriff, for suspicion of partiality, process is
awarded to the coroner for execution.^ See Sheriff.
error; and the second, a writ for a review
The object of an inquest is to seek information and
by a higlier court. See further Error, 3. secure evidence in case of death by violence or other
Coram non judiee. Before one not a undue means. It is the coroner's duty to act only
judge; by a court without jurisdiction. See when there is reasonable ground to suspect that a
further Judex, Coram. death was so caused; the power is not to be exercised

COED. One hundred and twenty-eight capriciously, and arbitrarily against all reason.'-*
The welfare of society and the interests of public
cubic feet. justice alike demand that an inquest should be
A contract for the sale of wood or bark by the cord thorough. Statutory provisions are, therefore, to be
calls for such number of cubic feet.' liberally construed, with a view ,to the accomplish-
CORDIALS. See Liquor. ment of the end desired. They are to be so con-
CORN. See Grain. strued that the coroner may be thereby authorized to
employ such medical, surgical, or other scientific skill
COEIfER. In the language of gambling
as may be necessary, in his judgment, in the particu-
speculation, when an article of commerce is lar case, and to charge his county with payment of
so engrossed or manipulated as to make it the reasonable expense thereof. ^
scarce or plenty in the market at the will of In Massachusetts, the office was abolished in 1877.
the gamblers, and its price thus placed within The governor appoints as examiners " men learned in
the science of medicine," who hold autopsies, and, in
theirpower.'^ See Combination, 3. cases of death from violence, notify the district a^
CORNERS. See Four.
torney and a justice of that fact.*
CORODY. See Pension, 3. CORPORAL. 1. Relating to the body of
CORONER.' 1. An officer who has prin-' a* person; bodily: as, corporal punishment,
cipally to do with pleas of the crown, or such q. v.; corporal seizure or touching. See
wherein the king is more immediately con- Arrest, 2; Corpus.
cei-ned.i 3. Affecting a thing externally ; as, a cor-
2. A county officer who inquires into the poral oath, — taken with the hand upon the
causes of sudden or violent deaths, while the Gospels. See Oath.
facts are recent and the circumstances un- 3. In person: as, a corporal appearance.
changed.5 Compare CORPORBAt.
The lord chief justice is the chief coroner of all
England; and there are usually four coroners for each CORPORATE. See Corporation, Cor-
county. The office is of equal antiquity- with that of
sheriff; was ordained with his, to keep the peace, porate.
CORPORATION. A creature of the
when the earls gave up the wardship of the county. crown, created by letters-patent.^
Much honor formerly appertained to the office, which An artificial being, indivisible, intangible,
might be for life.
According to Blackstone, the duties of the ofttee, and existing only in contemplation of law.^
which are principally judicial, are largely defined As all personal rights die with the person,
by 4 Edw. I (1276), and consist in inquiring (whence and as the necessary forms of investing a
coroner's inquest) when any person is slain, or dies
suddenly, or in prison, concerning the manner of his 1 1 Bl. Com. 346-48; 4 id!. 274; 7 Q. B. D. 614; 20 Ga.
death. This must appear upon view of the body, at 336; 10 Humph. 346; ?3 N. Y. 45.
the place where death happened, by a Jury of fom^ to 2 Lancaster County v. Mishler, 100 Pa. 627 (1882).
six persons. If any person be found guilty of homi- 3 Jameson v. Bartholomew County, 54 Ind. 530(1878),
cide the coroner ia to commit him to prison for further Howk, C. J. See also Dearborn County v. Bond, 88
trial, and to inquire as to his property, which is for- id. 102 (1882); Sandford v. Lee Covmty, 49 Iowa, US
(1878); Cook v. Multnomah County, 7 Oreg. 170 (1879);
» Kennedy v. Oswego, &c. E. Co., 67 Barb. 167 (1867). 6 Am. Law Reg. 385-400 (1858).
See Buffalo v. Q'Malley, 61 Wis. 258 (1884). i ' Laws of 1877, c. 200.
s Kirkpatrick v. Bonsall, 72 Pa. 158 (1873), Agnew, J. ' Kirk V. NowiU, 1 T. E. 124 (1786), Mansfield, C. J.
3 L. coronator; coi'<ma, a crown. "Dartmouth College v. Woodward, 4 Wheat. 636
' 1 Bl. Com. 346. (1819), Marshall, 0. J.; United States Bank v. Deveaux,
= Commonwealth v. Gray, 5 Cush. 309 (1850), Shaw, 6 Cranch, 88 (1809); Bank of Augusta v. Earle, 13 Pet.
Chief Justice. 587(1889); 1 Black, 295.
 CORPORATION 261
CORPORATION

series of individuals, one after the other, with Among the most important are immortality and indi- '
the same identical right, would be inconven- viduality: " properties by which a perpetual succes-
sion of many members are considered as the same,
ient, ifnot impracticable, it has been found and may act as a single individual." '
necessairy, when for the advantage of the The members and their successors are as one per-
public that particular rights should be con- son in law, with one will — that of the majority; and
tinued, to constitute artificial persons who with prescribed rules which take the plac^ of natural
may maintain a perpetual succession. These laws.'
The sovereign's consent is necessary to the erection
artificial persons are called " bodies politic,'' of a corporation. With respect to corporations which
" bodies corporate," or " corporations." i exist by force of the common l^w, as, the king him-
The great object of a corporation is to be- self and bishops, this consent is implied; so, also, as
to corporations, like the city of London, whose charter
stow the character and properties of indi- rests on prescription. His consent is expressly given
viduality on a collective and changing body by act of parliament or by charter. He may grant
of men. 2 the power to a subject as his agent."
A private corporation is merely an associ- The powers of a corporation aggregate are: to have
ation of individuals united for a special pur- perpetual succession; to sue and be sued; to hold
pose, and permitted to do business under a lands; to have a common seal; to make by-laws; —
with all the rights necessarily incident to these gen-
particular name, and have a succession of
eral powers. *
members without dissolution.^ The duty of a corporation is to act up to the end or
The privilege of exercising the particular right, by design for which it was created. To enforce this duty
grant o£ the sovereign, is a franchise.* Compare Cm- all corporations may be " visited "—by the founder or
poratLon Aggregate. his representative in the ca^e of a lay corporation; by
The constitutions of several States provide that the the endower, his heirs or assigns, in the case of an
term corporation *' shall be construed to include all eleemosynary corporation.*
associations and joint-stoclc companies having any of A corporation is dissolved by a statute assented
the powers and privileges of corporations not pos- to; by the natuTEil death of all its members; by sur-
sessed by individuals or partnerships." ^ render of its franchises; by forfeiture of its charter,
In England, the tendency seems to have been to through negligence or abuse of its franchises.'
confine the terra to its original sense as implying non- The objects for which corporations are created are
liability of members for corporate debts; and. if this such as the government wishes to promote. They are
exemption is not to be accorded, to caU the body a deemed beneficial to the coimtry ; and it is this benefit
"public company."' . The current of American that constitutes the consideration of the grant.'
decisions has been to the effect that the word embraces The United States may be deemed a corporation; '
an association formed under general laws, with stock- so may a State; ' and so, a county. All corporations
holders, directors, a president, etc. ; and that such a were originally modeled upon a state or nation;
body is not a guo-si corporation {q. v.), nor a joint- whence they are still called " bodies politic." ^' See
stock company, nor a limited partnership.' See Asso- Municipal and Public Corporation.
ciation; CoMPAltY. The species of corporations are the following:
If the essential franchises of a corporation are con- Aggregate corporation. Consists of
ferred upon a joint-stock company, it is none the less
a corporation for being called something else.' many persons united together into one so-
Being tjie mere creature of law, each possesses only ciety, and is kept up by a perpetual succes-
those properties which the charter of its creation con- sion of members, so as to continue forever.
fers upon it, expressly or as incidental to its very Corporation sole. Consists of one person
existence. These are such as are supposed beet cal-
culated to effect the object for which it was created.
only and his successors, incorporated in order
to give them legal capacities and advantages,
> 1 Bl. Com. 407, 123. J2^
« Providence Bank v. BilUngs, 4 Pet. *m2 (1830), ' Dartmouth College v. Woodward, 4 Wheat. 636
Marshall, C. J. (1819k 97 U. S. 666; 101 id. 83; 1 Bl. Com. 408.
^ [Pembina Mining Co. v. Pennsylvania, 12S U. S. 189 2 1 Bl. Com. 468.
(1888), Field, J. ' 1 Bl. Com. 472-74. As to names of corporations, see
« [2 Bl. Com. 37. See also 4 Ark. 351 ; 40 Ga. 637; 76 23 Cent. Law J. 531 (18£6), cases.
111. 573; 6 Kan. 253; 40 N. H. 578; 1 Ohio St. 648; 45 Wis. ' I Bl. Com. 475-78.
mi; 1 Hill, N. Y., 620. ' 1 Bl. Com. 480.
sConst. N. Y., 1849, Art. 8, § 3; Cal., 1849, Art. 4, §33; » 1 Bl. Com. 485.
Mich., 1850, Art. 15, § U; Kan., 1859, Art. 12, § 6; Minn., 'Dartmouth College v. Woodward, 4 Wheat. 637
1857-58, Art. 10, § 1. (1819); 101 U. S. 84
8 1 Abbott, 291 ; Falconer v. Campbell, 2 McLean, 195 « United States u Hillegas, 3 Wash. 73 (1811).
(1840); Oliver v. Liverpool, &c. Ins. Co., 100 Mass. 538 "Indiana v. Woram, 6 Hill, 38 (1843); 2 Johns. Cas.
(1868): 10 Wall. 566 (1870). 58, 417; 1 Abb. U. S. 22; 35 Ga. 315.
'Fargo V. Louisville, &c. E. Co., lOBiss. 277 (1881). . i« Mcintosh, Hist. Eng. 31-33.
 CORPORATION CORPORATION
363

distribution of the free alms and boiraty of the

particularly that of "perpetuity, which in founder as he has directed. 1
their natural persons they could not have
An " eleemosynary corporation " is a private char-
had ; as, the king, hy force of the common ity, constituted for the perpetual distribution of the
law, and a bishop or parson, i alms and bounty of the founder.^
A. " corporation aggregate " is a collection of indi- A corporation for religious and charitable purposes,
viduals united into one collective body, under a spe- endowed solely by private benefactions, is a " private
cial name, and possessing certain immunitiesv priv- eleemosynary" corporation, although created by a
ileges, and capacities in its collective character which charter from the government. '
do not belong to the natural persons composing it.'' Close corporation. In this the major-
A "corporation aggregate" consists of many per- ity of the persons to whom the corporate
sons united together into one society, and kept up
powers have been granted, on the happening
by a perpetual succession of members, so as to con-
tinue forever.3 of vacancies among them, have the right of
A "coi*poration sole" consists of a single person themselves to appoint others to fill such
who is made a body corporate and politic in order to vacancies, without allowing the corporators
give him some legal capacities and advantages, espe-
in general any choice in the selection of such
cially that of pei-petuity ; as, a minister seized of lands
in right of the parish. ^ new officers. Open corporation. In which
A " corporation aggregate" is a true corporation, all the corporators have a vote in the election
but a " corporation sole " is one in^vidual, being a
member of a series of individuals, who is invested by of officers.*
a fiction with the qualities of a corporation. The ca- Commercial corporation. See Busi-
pacity or ofidce is here considered apart from the par- ness, Corporation.
ticular person who frbm time to time may occupy it.* Foreign corporation. A corporation
Ecclesiastical corporation. When the created by or under the laws of another
members composing the corporation are en- State, government, or country.''' Domestic
tirely spiritual persons, as, a bishop, a par- or home corporation. A corporation
son, and the like; for the furtherance of created under the law of the place where it
religion and perpetuating the rights of the exists or exercises its powers.
church. Lay corporation. A corpora- A "corporation exists only by force of law, and can
tion composed of secular persons; and in have no legal existence beyond the bounds of the sov-
ereignty by which it is created. It dwells in the place
nature either civil or eleemosynary.
of its creation. It is not a " citizen," within the mean-
Civil corporation. Such corporation as ing of the Constitution, and cannot maintain a suit-in
is erected for a temporal purpose. Elee- a Federal court against a citizen of a different State
from that by which it was created, unless the persons
mosynary corporation. Such -corporation who compose the corporate body are all citizens of
as is constituted for the perpetual distribu- that State. The legal presumption is that its members
tion of the free alms or bounty of the founder are citizens of the State in which alone the body has a
to such persons as he has directed. ^
legal existence.*
Of the "civil " sort are: those erected for the good By comity, if not forbidden by its charter, nor by
government of a town or district; those for the ad- the laws of that State, a corporation may exercise its
vancement and regulation of manufacturers and com- powers in another State.^ ,
merce; those for special purposes — as for medical
science, natural history, etc.^ See Municipal and I Dartmouth College v. Woodward, 4 Wheat. 66S,
Private Corporation. 672-76 (1819), Story, J.
Of the " eleemosynary " kind are hospitals for the » Allen V. MoKean, 1 Sumu. 399 (1833): 2 Kent, 274.
relief of the poor, the sick, the impotent; and colleges See also 18 Mass. 557; 9 Barb. 90; 27 id. 306; 8N.'Y.633;
for the promotion of piety and learning.* Ang. & A. Coi-p. § 39.
" Eleemosynary corporations " are incorporated for * Society for Propagating the Gospel v. New Haven,
perpetuating the application of the bounty of the 8 Wheat. 480 (1823).
donor to the specified objects of that bounty' —the « McKim V. Odom, 2 Bland, Ch. 416, n. (1829).
• Daly V. National Lite Ins. Co., 64 Ind. 6-8 (1878).
1 1 Bl. Com. 469. « Ohio & Mississippi E. Co. u Wheeler, 1 Black, 395-
' Dartmouth College u. Woodward, 4 Wheat! 667 96 (1861), cases, Taney, C. J. ; Paul v. Virginia, 8 Wall.
(1819), Story, J. 177-82(1868), cases; Chicago, &c. E. Co. v. Whitton, 13
? Overseers of the Poor v. Sears, 23 Pick, 125-28 «. 283(1871); Sewing Machine Case, 18 id. 576(1873);
(1839), Shaw, 0. J.; 7 Mass. 447; 22 Wend. 70; 1 Hill, Doyle V. Continental Ins. Co.,94U. S. 535 (1876); Cowell
620; 19 N. Y. 39; 2 Kent, 273. V. Colorado Springs Co., 100 id. 59(1879); Memphis,,&c.
' Maine Anc. Law, 181. E. Co. V. Alabama, 107 id. 585 (188:3) ; Philadelphia Fire
i>2Bl. Com. 470-71. Association v. New York, 119 id. 117-18 (1886), cases.
" Dartmouth College v. Woodward, 4 Wheat. 640, 647, ' Christian Union v. Yount, 101 U. S. 352 (1879); St.
630 (1819), Marshall, C. J. Louis V. Ferry Co., 11 Wall., 429 (1870).
 COEPORATION COEPORATION
263

No State need allow the corporations of another been created a corporation by any statute,
State to. do biisiness within its jurisdiction unless it
chooses, with perhaps the exception of commercial
general or special.'
Such auxiliaries of the State as a county, school-
corporations; but if it does, without limitation, the district, township, and other like involuntary corpora-
corpoi'ation comes in as it has been created. ^ tions with liabilities not as great as those of municipal
The State which recognizes foreign corporations can
impose such conditions on its recognition as it chooses, corporations.'
not inconsistent with the Constitution and laws of the Of such are the inhabitants of a school district; '
commissioners of schools,* and boards of education; "
United States. If it permits them to do business with-
overeeers of the poor: ' the commissioners or super-
out limitation, express or implied, they carry with
them all their chartered rights, and may claim all visors of a county,' q.v.; commissioners of roads;"
their chartered privileges which can be used away the governor of Tennessee; " a levee district organized
by statute to reclaim land; '"—any body invested with
from their legal home. By doing business away from
corporate powers sub modo, for a few specified pur-
home they do not change their citizenship; they
poses only, and which may sue and be sued." See
simply extend their field of operations.' under Public Corporation^ Quasi, etc.
But a State may not impose a limitation upon the
power of a foreign corporation to make contracts Municipal corporation. A public cor-
within the State for carrying on commerce between the poration (q.V.) created by the government
States. Doing a single act of biisiness in a State, for political purposes and having subordinate
with no purpose of doing other acts there, does not and local powers of legislation; an incor-
bring a corporation within a statute requiring a foreign
corporation, before it can carry on business in the poration ofpersons inhabitants of a particu-
State, to iile a certificate showing places of business, lar place, or connected with a particular dis-
agents, etc.^
trict, enabling them to conduct its local civil
Undoubtedly a corporation of one State, employed government. Merely an agency instituted
in the business of the general government, may do by the sovereign for the purpose of carrying
such business in other States without obtaining a
license from them. . It is not every corporation, out in detail the objects of government. 12
lawful in the State of its creation, that other States Essentially a revocable agency — having no vested
may be willing to admit within their jurisdiction ; such, right to any of its powers or franchises — the charter
or act of erection being in no sense a contract with the
for example, as a corporation for lotteries. And even
when the business is not unlawful the State may wish State — and therefore fully subject to the control of
to limit the number of corporations belonging to its the legislature, which may enlarge or diminish its ter-
ritorial extent or its functions, change or modify its
class, or to subject their business to such contract as
internal arrangement, or destroy its very existence,
would be in accordance with the policy governing do- with the mere breath of arbitrary discretion. While
mestic corporations of a similar character. The States
it thus exists in subjection to the will of the sovereign,
may, therefore, require for the admission within their
it enjoys the rights and is subject to the liabilities of
limits of the corporations of other States such condi- any other corporation, public or private. This is the
tions as they may choose. . The only limitation,
very object of making it a body politic, giving it a legal
upon such power arises where the corporation is in the
entity and name, a seal by which to act in solemn
employ of the Federal government, or where its busi- form, a capacity to contract and be contracted with,
ness is strictly commerce, inter-State or foreign.* to sue and be sued, » persona standi in Judicio, to
Moneyed corporation. Any corpora-
tion with banking powers, or power to make 1 School District v. Insurance Co., 103 U. S. 708 (1880),
Miller, J.
loans on pledges or deposits, or to make con-
tracts of insurance." ' Levy Court v. Coroner, 2 Wall. 508 (1864); Barnes v.
District of Columbia, 91 U. S. 552 (1876); 7 Mass. 169;
Quasi corporation. A phrase applied to 109 id. 218.
a body which exercises certain functions of S33 Conn. 298; 26 Ind. 310; 37 Iowa, 542; 22 Me. 564;
a corporate character, but which has not 13 Mass. 193; 23 Mo. 418.
•" 1 Miss. 328; 18 Johns. 4D7.
> Eelfe V. Bundle, 103 U. S. 325 (1880). » 38 Ohio St. 54.
•44 Ala. 666.
2 Baltimore, &c. E. Co. v. Koontz, 104 U. S. 11-13
(1881), cases, Waite, C. J. ; National Steamship Co. v. ' 8 Johns. 422; 20 Barb. 294; 1 Cow. 670; 16 S. & E. 286.
Tugman, 106 id. 120-81 (1882), cases ; St. Clair «. Cox, " 1 Spears (S. C), 218.
ib. 356-56 (1882); Canada Southern E. Co. u. Gebhard, S 8 Humph. 176.
'» 51 Cal. 406.
109 id. 63" (1883).
' Cooper Manufacturing Co. v. Ferguson, 113 U. S. "51Cal.406; 10N.Y.409; 18 Barb. 607; 4Wheat.631;
727, 738 (1885). Angell & A. Corp. § 84; Boone, Corp. § 10.
■> Pembina Mining Co. v. Pennsylvania, 125 U. S. 186, 12 Philadelphia v. Fox, 04 Pa. 180-81 (1870), Shars-
189-90 (188S), cases. Field, J. wood. J., quoting 2 Kent, 276; Glover, Munic. Corp. 1.
= See 2 N. Y. Eev. St., 7 ed., 1371; Gilletu. Moody, 3 See also Si Cal. 142, 146; 69 Ga. 644; 87 Iowa, 544; 26
N. Y. 485 (1860); HUl v. Eeed, 16 Barb. 287 (1653); 48 id. La. An. 481; 29 Minn. 450-61; 58 Mo. 311; 6 Baxt. 171;
464; 6 Paige, 497- 8 Utah, 403; 2 Kent, 868; Ang. & A. Corp. § 15.
 CORPORATION 264 CORPORATION

liold and dispose of property, and' thereby to acquire The earliest form of corporation was, probably, the
rights and incur responsibilities. These franchises were municipality or city, which necessity exacted for the
confen-ed upon it for the purpose of enabling it the control or local police of the marts or crowded places
better to effect the design of its institution, the exercise of the empire. These cities became a bulwark against
of certain of the powers of government, subordinate despotism.! See City; Obdinancb, 1; Riot.
to the legislature, over a part of the territory of the National corporation. A corporation
State. But all this affects its relations to other per-
sons, natural or artificial: it doesnot touch its relation created by Congress to assist in "carrying
to the State, its creator, ^ into execution " one or more of the powers
In the exercise of its duties, including those most vested by the Constitution in the government
strictly local or internal, a municipal corporation is of the United States.
but a department of the State. The legislature may Of such are the national banking associations.^ See
give it all the po wers such a being is capable of receiv- Grant, 3; Land, Public.
ing, making it a miniature State vithin its locality; or
Political corporation. See Public Cor-
it may strip it of every power, leaving it a corporation
in name only. . . The municipality may act through poration,
its mayor, its common coxmcil or legislative depart- Private corporation. An association of
ment, its supervisor of streets, commissioner of high- individuals united for some common purpose,
ways, board of public works, etc., provided tt acts and permitted by the law to use a common
within the province committed to its charge. Wheth^ name, and to change its members without a
its agfents be appointed or elected is immaterial. ^
What portions of a State shall be within the limits dissolution of the association. 3
Its powers are such as are conferred by statute; and
of a city is a -proper subject of legislation — however its charter is the measure thereof. The enumeration
thick or sparse the settlement. ^
Property held for public uses — such as public of these powers excludes all others.*
buildings, streets, squares, parks, wharves, fire-en- Its charter is a contract, not to be " impaired." q. v.
gines, engineering (instruments: whatever is held for Public corporation. Such corporation
governmental purposes — cannot be subjected to the as exists for political purposes only; as, a
payment of the debts of the city. Its public character town, a city, a county. But, strictly speak-
forbids such an appropriation. The obligation of its
contracts survives dissolution. Equity will apply its
ing, public corporations are such only as are
property to the payment of its debts ; after which, sur- founded by the government for public pur-
plus realty may revert to the grantor, and personalty poses, where the whole interests belong also
vest in the State. The private property of individuals
to the government.^
cannot be taken for its debts, except through taxa- K, therefore, the foundation be "private," though
tion. The doctrine of some States, thalt such can be under the charter of the government, the corporation
reached directly on an execution against the munici- ' is private, however extensive the uses to which it is
pality, has not been generally accepted.* devoted. . . A hospital or a college founded by a
The general doctrine that, being the creature of the private benefactor is a private corporation, although
law, a municipal corporation can only act as provided dedicated by its charter to general charity. ^
by its organic law, and that if its agents fail to observe In popular meaning nearly every corporation is
the forms and methods prescribed by that law, in any " public " inasmuch as they are created for the public
substantial particular, their acts are not the acts of benefit. Yet if the whole interest does not belong to
the corporation, — has been greatly modified, by the the government, or if the corporation is not created
,decisions of the Supreme Court, in its application to for the administration of political or municipal power,
bonds issued by agents when the rights of bona fide it is a " private " corporation. Thus, all bank, bridge,
purchasers are involved.* turnpike, railroad, and canal companies are private
A municipal corporation can exercise such powers corporations. In these and similar cases, in a certain
only as are granted in express words or are necessa- sense, the uses may be called public, but the corpora-
rily or fairly implied in or incident to those powers, tions are private, as much so as if the franchises were
and such as are essential to the declared objects of the
Co., 67 Tex. 553 (1887). See generally 36 Cent. Law J.
corporation.^ 179 (1888), cases.
1 Philadelphia v. Fox, ante. 1 Mcintosh, Hist. Eng. 31-32; 1 Bl. Com. 468, 472; Liv-
2 Barnes v. District of Columbia, 91 U. S. 544, 541 Miller, J. erpool Ins. Co. V. Massachusetts, 10 Wall. 574 (1870),
(1875), cases. Hunt, J. See also 108 id. 121 ; 109 id. 287.
On revoking powers of municipal corporations, see 2 See generaUy 21 Cent. Law J. 42S-29 (1865), cases;
Supervisors v. Luck, 80 Ya. 226-27 (1885), cases. 21 Am. Law Rev. 258-69 (1887), cases.
3 Kelly V. Pittsburgh, 104 U. S; 80 (1881); 92 id. 310-12. a Baltimore & Ohio R. Co. v. First Baptist Church,
4 Meriwether v. Garrett, 103 U. S. 501, 511-19 (1880), 108 U. S. 330 (1883), Field, J.; County of Santa Clara v.
cases, "Waite, C, J.; Broughton v. Pensacola, 93 id. 15 Rep. 674.Pac. R. Co., 18 F. R. 403 (1883): 8 Saw. 264;
Southern
268 (1876); Claiborne Co. v. Brooks, 111 id. 410 (1884).
5 Phelps v. Town of Yates, 16 Blatch. 193 (1879), "Wal- 4 Thomas v. West Jersey R. Co., 101 U. S. 83 (1879).
lace, J. ^ Dartmouth College v. Woodward, 4 Wheat 668-69
(1819), Story, J.
« Dillon, Munic. Corp. 89, cases; Brenham v. Water
 CORPORATION 265 CORPORATION

vested in a Bingle person. The delegation of the right tion of trade, and the development of the resources of
of eminent domain, to be used for private emolument
the countrj-.i
as well as for public benefit, does not clothe a coi^pora- It is a misnomer to attach the name " quasi public
tion with the inviolability or immunity of public offi- corporation " to a I'ailroad company, for it has none of
cers performing public functions.' the features of such corporations, if we except its quali-
Public corporations are so called because they are fied right of eminent domain, which it has because of
but parts of the machinery employed in carrying on the right reserved to the public to use its way for
the affairs of the State ; — auxiliaries of the State in travel and transportation. Its road may be a quasi
the business of municipal rule ; — political divisions of public highway, but the company itself is a private
State, originating in the necessities and conveniences corporation, and nothing more.^
of the people. Their officers are local agents of the Corporate. Relating to a corporation.
State.' Corporate authorities. In the constitution
A public corporation is a mere instrumentality of
the State for the better administration of the govern-
of Illinois, Art. 9, § 5, municipal officers who
ment in matters of local concern.' It is a local agency are either directly elected by the people or
of the government creating it; its powere are such as are appointed in some mode to which they
belong to sovereignty. Property and revenue neces- have given their assent.^
sary for the exercise of these powere become part of
the machinery of government. To permit a creditor Corporate existence. Dates from the time
to seize and sell these, in order to collect a debt, when full authority to transact business is
would be to permit him in a degree to destroy the possessed by a corporation, as from the filing
government itself.* of articles with the secretary of State.^
A public corporation can exercise no power not
Corporate purpose. In some States, as in
given by its charter or some other statute of the
' State.o Illinois, taxation by public corporations must
It is now well settled that the charter of a public be for corporate purposes. This means such
corporation may be changed, modified, or repealed, purposes as are germane to the objects of the
as the exigencies of the public service or the public welfare of the municipality or at least have
welfare may demand; unless the organic law other-
a legitimate connection with those objects
wise provides.®
Public and other municipal corporations represent and a manifest relation thereto.*
The reference is to a tax which is to be expended in
the people, and are to be protected against the un-
authorized acts of their offtcers and agents, when this a manner promoting the general prosperity and wel-
can be done without injury to third parties. This is fare of the munioipaUty which levied it.°-
The purpose must be germane to the general scope
necessary in order to guard against fraud and pecula-
tion. Persons dealing with such officers or agents are of the object for which the corporation was created.'
chargeable with notice of the power the corporation The expression will include money expended for a
court-house, jail, poor-house; the opening and keep-
Quasi public corporations: corporations technically ing of a common highway; the erection and mainte-
private, but yet of a quasi public character having in nance of a bridge; a donation to secure the location of
view some general public enterprise, in which the pub- a school; " and, perhaps, also, money expended in de-
lic interests are directly involved to such an extent as veloping the natural resources for manufacturing pm'-
to Justify conferring upon them important govern- poses.' Compare Pcrpose, Public.
mental powers, such as an exercise of the right of Corporate rights. '-Franchises or pecul-
eminent domain. Of this class are railroad, turnpike ,
iar privileged grants " of the nature of corpo-
and canal companies; and corporations strictly pri-
vate, the direct object of which is to promote public real property.!"
interests, and in which the public have no concern, 1 Miners' Ditch Co. «. Zellenbach, 37 Cal. 677 (1869),
except the indirect benefits resulting from the promo-
Sawyer, C. J.
■ Handle v. Delaware & Raritan Canal Co., 1 Wall. " Pierce v. Commonwealth, 104 Pa. 166 (16S3) ; 6 Col. 8 ;
C. C. 290 (1&49), Grier, J. ; Sweatt v. Boston, &c. E. Co., llKan. 608; 3 Hill, 567,570; 1N.H.273; 1 Wall. Jr. 275.
3 Cliff. 346 (1871).
See generally 22 Cent. Law J. 148 (1886), cases.
2 Commissioners of Laramie County v. Commission- s Gage V. Graham, 67 111. 146-47 (1870), cases.
4 Hurt V. Salisbury, 65 Mo. 314 (1874).
ers of Albany County, 92 U. S. 310-312 (1875), cases,
aiflford, J.; 2 Kent, 305. •People V. Dupuyt, 71 111. 651 (1874); Livingston
» United States v. New Orleans, 98 U. S. 393 (1878), County V. Wieder, 64 id. 483 (1872).
Field, J. 0 Burr v. City of Carbondale, 76 lU. 466 (1875).
4 Klein v. New Orleans, 99 U. S. 150 (1878), Waite, 0. J. ' Wrightman v. Clark, 103 U. S. 260 (1880), cases; Ot-
6 Mt. Pleasant v. Beckwith, 100 U. S. 521 (1879). tawa V. Carey, 103 id. 121-23 (1883), cases.
« Thomas v. City of Richmond, 12 Wall. 336 (1870), » County of Livingston v. Darlington, 101 U. S.
411-13
Bradley, J.
(1879), cases.
On changes in public corporations affectmg
prop- 9 Hackett v. Ottawa, 99 U. S. 94 (1878), cases.
ertj and rights of creditors, see 21 Am. Law
Rev. 10 Wamer v. Beers, 23 Wend. 154 (1840); 7 Hill, 283; 2
14-40 (1887), cases. Bl. Com. 37.
 CORPOREAL CORRUPT

Corporator. Usually, a member of a cor- The corpus of an estate is the material object, or
poration, inwhich sense it includes a stock- species of property, of which the estate is composed.
It is this which, generally, is vested in a trustee, in dis-
holder ;also, one of the persons who are the tinction from the income of the estate, which is allotted
original organizers or promoters of a new to the beneficiary.!
corporation, i The corpus of a railroad is the roadway, embank-
The corporators are not the corporation, for either ment, superstructure, and equipment.''
may sue the other." Corpus comitatus. The body of the
Incorporate, v. To form into an artifi- county. See Body, 3.
cial body ; to create a corporation out of nat- Corpus delicti. The essential element of
ural persons. an offense : the fact that the particular crime
Incorporate, adjV The same as corpo- alleged has been actually committed.
rate, q. V. To warrant a conviction for murder there must be
Incorporated. United into one body; direct proof either of the death, as by the finding and
identification of the corpse, or of criminal violence
constituted a legal entity or person. Unin-
adequate to produce death and exerted in such man-
corporated: not existing as a corporation. as to account for the disappearance of the body. The
Incorporation. The act of uniting nat- corpus delicti in murder has two components: death
ural persons into a creature of the law ; also, as the result, and the criminal .agency of another as
the means. Where there is direct proof of the one,
a body incorporated, that is, a corporation —
the other can be established by circumstantial evi-
a' use not favored.
" Incorporation " is the act by which the political The corpus delicti must be proved like any other
institution called a coi-poration is created.^ dence.'
fact, that is, beyond a reasonable doubt, and that doubt -
See further Agest; Amotiok; Bank, 2 (2);. Bony, 2;
is for the jury. A confession alone is not regarded
Bond; By-law, 2; Capital, 2; Charity, 2; Charter, 2; as sufBoient proof. The State must first produce
Consolidation; Director; Dissolve, 3; Distringas; sufficient evidence to send the case to the jury, and the
Dividend, 3; Domain, 1, Eminent; Find, 2; Fran- jury are first to be satisfied, from that evidence, that
chise, 1; Inspection, 2; Legislature; Manager;
the crime has been committed.*
Meetings; Minutes, 2; Mortmain; Organize; Per- The doctrine applies to other crimes, as, larceny.
petual; Person; Police, 8; Property; Prospectus;
The possession of the fruits of a crime may do away
Proxy; Railroad; Receiver; Residence; Seal, 1,
with direct proof of the corpus delicti.^
. Common; Soul; Stock, 3; Succession; Take, 8;
Tax, 2; Tort, 2; Ultra Vires; Visit, 2; Voting,
Corpus Juris Civilis. See Pandects.
Cumulative; Wakrantum. CORRELATIVE OBLiaATIONS.
COEPOBEAL. Having a body: ma- See Assent.
terial in nature ; substantial ; palpable. CORRESPONDENCE. See Communi-
Incorporeal. Immaterial; intangible; cation, Privileged, 3; Letter, 3.
insensible ; existing in thought ; ideal. CORROBORATING. See Circum-
In the Roman law, res corporales were objects of stances; Evidence.
property apprehensible by the senses; res incorporales CORRUPT. 1. To taint, vitiate: as, to
objects apprehensible by the mind only. A right of corrupt the blood, q. v.
way over another's land, an obligation to pay money,
an undivided interest in land, were examples of the 3. To do an act for unlawful gain.
latter species of property; while the land itself and Corruption. An act done with intent to
the money when paid were examples of the former gain an advantage not consistent with official
species.^
Hereditaments are spoken of as corporeal and in- duty and the rights of othei-s; something
corporeal. See Hereditament; Corpus. forbidden by law : « as, certain acts by arbitra-
CORPSE. See Burial.
CORPUS. L. A body; also, the principal 1 See Kountz i;. Omaha Hotel Co., 107 IT. S. 395 (1882);
67 Pa. 476; 70 id.BOl; 75 id. 119.
thing, the essential part, the substance.
" Jackson u. Ludeling, 99 U. S. 631 (1878); 106 id. 311.
In several phrases it means the body or s Euloff V. People, 18 N. Y. 179, 182 (1858).
person of an individual, as see under Capere ; « Grray v. Commonwealth, 101 Pa. 386 (1882); Udder-
Haberk. 200k v. Commonwealth, 76 id. 340 (1874); Pitts n.
State, 43 Miss. 480-82 (1870), cases; United States v.
1 [Gulliver v. Eoelle, 100 111. 147 (1881). Williams, 1 Cliff. 85 (1858); 4 Crim. Law Mag. 902-
12 (1883).
2 Memphisv. City
Davenport Downs,o. 18Dean,
id. 6878 "Wall. 73 (18G8), cases;
(1873), cases. = See examples, 20 Blateh. 236; 10 F. B. 470; 86 Miss.
' Ang. & A. Corp, § 5; Toledo Bank v. Bond, 1 Ohio 157; 59 id. 545; 15 Wend. 147; 14 Tex. Ap. 560; 1 Greenl.
St. 642 (1853). Ev. § 214; Whart. Cr. Ev. § 334.
1 See Hadley, Rom. Law, 158-61. ' [Bouvier's Law Diet.
 COST 267
COSTS

tors, election or other officers, trustees; a In this connection " costs " means taxable' costs. '
The statement gives the names of the witnesses, days
^^' champertous contract ; a contract for usury. in attendance, and milaaBe.
In an indictment for corrupt misbehavior in office
the act must be distinctly charged as done knowingly Carry costs. A verdict is said to carry
and with a con-upt motive.' costs when he for whom it is found becomes
See Award, 2; Bribery. entitled to the payment of all costs as an in-
COST.2 Of an article purchased for ex- cident to the verdict.
portationthe
: price given for it, with every Certificate of costs. A memorandum
incidental chai-ge, paid or supposed to be signed by the judge who tries a cause, that,
paid, at the place where the article is ex- under the law, a party is entitled to costs.2
ported.* Cost-bond. The bond or other security
Cost price. The price actually paid for a required of a party to a proceeding for the
thing.* payment of such costs, if any, as may be
COSTS. The expenses of an action re- awarded against him.
coverable from the losing party.' Costs de incr emento . Costs by increase ;
An allowance to a party for expenses in- increased costs — adjudged by the court in
curred in conducting his suit." addition to sucli as the jury assess.
The sums prescribed by law as charges for Before the statute of Gloucester, costs were enrolled
services enumerated in the fee-bill.' as increase of damages. After the statute, juries
" Fees " are a compensation to an officer for serv- taxed the damages, and costs, separately. When the
ices rendered in the progress of a cause. Originally, amount so taxed was not sufficient to pay the costs of
fees were demandable the instant the services were the suit, the plaintiff prayed that the officer might
rendered; but indulgence, ripened into a custom, and tax the costs inserted in the judgment: this was the
which has received the sanction of judicial decision, origin of costs de mcremento.^
provides that the party should not be called upon to Costs of prosecution. Costs incurred in
pay them till after the determination of the cause; conducting a prosecution; not, expenses in
when, to avoid suit for a trifling demand, it became
the practice to include them in the execution as if resisting the prosecution.*
Costs of suit. The expenses incurred
they were a part of the successful party's costs.'
When a party in a litigated proceeding is duly ad- pending a suit, as allowed by the court.'
judged to pay costs, his liability is not restricted to May include commissions upon money collected by
the disbursements and expenses which the opposite
party may be entitled to receive, but extends to the execution."*
Costs of the day. Costs incurred in pre-
fees of the officers of the court for services rendered
therein. When these united sums are taxable in the paring for trial on a particular day, — accord-
ing to notice of trial given by a party.'
case they constitute " the costs" for which he is liable. Costs of the term. May incl ude only the
If the successful party collects them, he is trustee of
expense of travel and attendance of the
the fees. As against the paying party,' all the items
are costs.*
Includes all charges fixed by statutes, as compensa- party, the clerk's and witnesses' fees.s
Costs that have accrued. In the com-
tion for services rendered by officers of the court in
promise of a suit, costs that would follow the
the progress of a cause."
Bill of costs. A statement of the items
Costs to abide event. If the event is
of costs incurred in a suit, — presented for judgment.^
taxation to an officer of the court. the same to the party who had the verdict at
the former trial, he gets his costs ; otherwise,
' Boyd V. Commonwealth, 77 Va. 55-56 (1883), cases ; the costs of the first trial are lost.'"
8 Whart. Cr. L. § 2518.
2 L. con-stare, to " stand at." > Doe V. Thompson, 22 N. H. 219 (1850); CJhilds v. New
'[Goodwin u. United States, 2 Wash. 499 (1811); 2 Haven, &o. R. Co., 135 Mass. 572 (1883).
Mas. 398. "SeeSBl, Com. 214,401.
« [Buck V. Burk, 18 N. Y. 340 (18.o8). s 3 Bl. Com. -399; Day v. Woodworth, 13 How. 372 (1851).
= [Stanton County v. Madison County, 10 Neb. 308 « State V. Wallin, 89 N. C. 578 (1883).
(1880); State v. Dyches, 28 Tex. 542 (1866). 5 [Norwich v. Hyde, 7 Conn. *B34 (1829).
» Musser v. Good, 11 S. & E. "248 (1824), Gibson, J. •Kitchen v. Woodfln, 1 Hughes, 340 (1877).
' Apperson v. Mut. Benefit Life Ins. Co., 38 N. J. L. ' See 3 Bl. Com. 357; Adams, Eq. 343.
390 (1876), Depue, J. s Thurston v. Mining Co., 1 R. I. 288 (1850).
9 JaneS's Appeal, 87 Pa. 4.31 (1878). "Tallassee Manuf. Co. u. Glenn, 50 Ala. 489 (1876).
s Markham v. Boss, 73 Ga. 105 (1884): Davis v. State, 10 Jones V. WUliams, h. R., 8 Q. B. 283 (1873); 2 Ex.
33 id. 533 (1863).
Div. 287, 334; Sid. 202.
 COSTS 26S COSTS

Double costs; treble costs. 1. Eng- penses is condemned. The common la^w allowed no ^.-^i
lish practice. Double costs: common costs costs to either party. If the plaintiff failed, he '^^J'jff
"amerced; " if he recovered, the defendant was "at r /
and half as much moi-e. Treble costs: three
mercy " for detaining the amount of the debt. This in
times the amount of the costs incurred by a time was viewed as a hardship, and statute of 6 Edw. I
party in an action; common costs, half of (1277), c. 1, called the Statute of G-louoester, and
these, and half of the latter. which has been adopted in the States, was passed, giv-
" Double costs " were estimated by first allowing ing costs in all oases where the plaintiff recovered dam-
ages. But no costs were allowed the defend.^nt till the
the prevailing party single costs, including witnesses'
statute of 2:3 Hen. VHI (1531), c. 16, which, with later
expenses, counsels' fees, etc. , and then half the amount
statutes, gave him, if he prevailed, such costs as the
of the single costs, without deducting counsels' fees,
etc. " Treble costs " consisted of single costs, half the plaintiff would have received had he recovered, i
single costs, and half of that half.^ To prevent trifling and vexatious actions of tres-
Payment of treble costs was Imposed for violation pass, it was enacted by 43 Eliz. (1600), a. 6, and 22 and
of certain statutes, as that of 29 Eliz. (1586), c. 4, against 23 Car. (1670), c. 9, that where the jury awarded less
extortion by sheriffs on final process. Double and damages than forty shillings the plaintiff should be
treble costs were repealed by 5 and 6 Viet. (1843), c. 97. allowed no more costs than damages, unless the judge
certified that the freehold or title to the land chiefly
Since then, only "party and party " costs, or reason-
able costs, are taxable. came in question. But 8 and 9 Wm. HI (1696), c. 11,
provided that in actions wherein it appeared that the
2. American practice. Double costs: in
trespass was willful and malicious, and so certified by
New Yort, and South Carolina, common
the judge, the plaintiff should recover full costs. These
costs and one-half more. Treble costs: com- statutes are in force in a few of the States. ^
mon costs and three-fourths more.^ The statute of Charles is restricted to actions of
In Pennsylvania, double and treble costs mean trespass quare clausum /regit, and of assault and bat-
double and treble the single costs.' tery;for in no other case is it possible to give the cer-
These additional costs seem to be given as compen- tificate. Moreover, to entitle the plaintiff to full costs,
sation in cases of willful trespass or of vexatious liti- the judge's certificate must be made " at the trial of the
gation. cause;" that is, before final judgment. ^ In Pennsyl-
Interlocutory costs. Such costs as are vania currency, the forty shillings are equal to|5.33:
given on various motions and proceedings in the English shilling sterling not having been adopted.*
Costs are regulated entirely by statute, as to both
the course of a suit. Final costs. Such as item and amount. The Federal fee bill act of 1863,
depend upon the final event of the suit. To made section 983, Rev. St., provides that: "The bill of
fees of the clerk, marshal, and attorney, and the
these the term " costs " generally applies.'' amount paid printers and witnesses, and lawful fees
Security for costs. Security required
for exemplifications and copies of papers necessarily
of a plaintiff who is a non-resident of the obtained for use on trial in cases where by law costs
State, that if he is defeated in his action he are recoverable in favor of the prevailing party, shall
will pay all the costs thereof. be taxed by a judge or clerk of the court; and be in-
Until this is furnished be may not be allowed to cluded in and form a portion of a judgment or decree
proceed in his action. The defendant waives his right against the losing party. Such taxed bills shall be
by taking any step in the cause after he has notice filed with the papers in the cause."
that the plaintiff is a non-resident. A general afii- In the Federal courts, the prevailing party in com-
davit of defense may be first required. The law of the mon-law actions recovers costs in all cases, except-
particular jurisdiction should be consulted for infor- when otherwise provided by an act of Congress.'
mation as to details.'' Section 968, Rev. St., providing that the prevailing
party shall not be allowed costs when the recovery is
Taxation of costs. Official- adjustment
less than goOO, is imperative; the comt has no discre-
of the amount of costs incuiTed in a case, or tion to allow costs where the judgment is xmder that
to which the prevailing party is entitled. sum.' See Marshal, 1 (2); Prevail.
Costs are a necessary appendage to a judgment. The government, at common law, neither pays nor
The maxim is victus victori in expensis condemnatus
est, the defeated, to the prevailing party, in the ex-
13 Bl. Com. 399^00; Day v. Woodvvorth, 13 How. 378
(1851); Antoni v. Greenhow, 107 U. S. 781 (1882); 86 Am.
1 [Wharton's Law Diet.; 1 Chitty, Pr. 37; Brightly, Law Reg. 093-98 (1878), cases; 17 F. E. 10-11; 29 Minn.
430.
Costs, 298.
" Patchin v. Parkhurst, 9 Wend. 443 (1832) ; 1 Harp. L. = 3 Bl. Com. 214, 401 ; Winger v. Rife, 101 Pa. 158 (1882).
(S. C.) 440. = Simonds v. Barton, 76 Pa. 435-37 (1874), cases; Tow-
3 Welsh V. Anthony, 16 Pa. 2B6 (1851); 2 Bawle, 201. ers V. Vielie, 1 Johns. Cas. 281 (1799).
See 34 N. J. L. 530. < Chapman v. Calder, 14 Pa. 358 (1850).
* See GJoodyear v. Sawyer, 17 F. E. 8-9 (1833). ' United States v. Treadwell, 15 F. R. 534 (1883): E. S.
3 See 1 Daniel, Ch. Pr. 30; 10 Ves. 287; 18 F. R. 105;
13 Eep. 114; 13 How. Pr. 462; 60 Md. 375; 9 Wend. 268. i •823,
|§ 963.
Gibson v. Memphis, &o. E. Co., 31 F. E. 553 (1887).
 269
COUNCIL COUNT

receives costs; under statute, it may.' In admiralty, CONSILIUM. See Inops.

costs are left to the discretion of the court.' In equity, COUNT. \,v. In the sense of to com-
they are largely -vvithin the discretion of the chancel-
pute, see Account ; Discount.
,^or.> In criminal law, in cases of conviction of felony,
the prisoner pays the costs if he has property, and, in 2. In the sense of to refer to a statute,
cases of acquittal, the government pays them; while compare Recite.
in misdemeanors the accused, if convicted, is sentenced 3. n. In the sense of earl or comes, see
to pay them ; and if acquitted he may be required to Sheriff.
pay them where there was prima facie evidence of
guilt; or the pi-osecutor may have to pay them; or, 4. In pleading, a distinct statement of the
again, they may be divided between the prosecutor cause of action or of the ground of accusa-
and the accused; or there maybe authority for the tion.
government alone defraying them. If the accused Peculiar, therefore, to a declaration or an indict-
cannot pay them he may have to remain in prison ment. From the French conte; a narrative.
until discharged under the insolvent laws of the State.
(1) In civil procedure at common law, is
' Costs do not bear interest.
See Attorney; Damages; Docket; Fee, 2. sometimes synonymous with declaration, its
COUWCIL. 1. An advisory body selected original signification; but now is generally
to assist the governor of a State in his official considered as a part of a declaration, wherein
determinations. the plaintiff sets forth a distinct cause of
King's councils. To assist him in the action.l
discharge of his duties, the maintenance of Where the plaintiff's complaint embraces a single
cause of action and he mabres one statement of it
his dignity, and the exertion of his preroga- that statement is called, indifferentl.v, a " declaration "
tive, the law has assigned the sovereign a or a "count." But where his suit embraces two or
diversity of councils with which to advise, to more causes of action (each of which of course re-
quires adifferent statement), or when he makes two
wit : the high court of parliament ; the peers or more different statements of one and the same
of the realm assembled at call ; the judges of
cause of action, each statement is called a "coxmt,"
the courts of law; but, principally, h\B privy and all of them, collectively, constitute the " declara-
eouneil (by way of eminence tlw council), an tion," 'q. V.
assembly of the king and such as he wills, in Common counts. Distinct statements of
a cause of action so varied as to correspond
his palace.*
A governor's council is still retained in u. few with the possible state of the proof.
States. « In the common action of assumpsit, q. v., they are,
2. The ordinance-making body in a mu- ordinarily, for money — had and received, paid, lent,
nicipal corporation. or due upon an account stated; perhaps, also, for
the worth of work done and materials furnished:
Usually in the plural form "councils;" whence called "money" counts.^ See Contract,
whereof common and select council are the
Implied.
branches. Special count. States the facts peculiar
The organization and powers of such bodies are de-
termined by statute."
to the case in hand.*
One object in inserting two or more counts in a
The city council of Boston, for example, is not a declaration, when there is in fact but one cause of
"legislature." It has no power to make " laws," but action, is to guard against the danger of an insufScient
merely to pass ordinances upon such local matters as statement of the cause, where a doubt exists as to the
the legislature may commit to its charge. Neither
legal sufficiency of one or another of two or more dif-
branch is vested with any judicial functions whatever. ferent modes of declaring. But the more usual end
Nor are its members chosen with a view to their fit-
proposed is to accommodate the statement of the
ness for the exercise of such functions.' See further
cause, as far as maj' be, to the possible state of the
CiTIr; Contempt, 2; Ordinance, 1; Teibitnal.
proof exhibited on the trial.
COUNSEL; COUNSELLOB. See At- In assumpsit, under a declaration containing a spe-
torney, 2. cial count on a promissory note, and also the common
coimts, a note varying from the one specially pleaded
> 3 Bl. Com. 400; 3 Cranch, 73; 2 Wheat. 5; 12 id. is admissible under the common counts, as evidence
546; SHOW. 29; 3 Pa. 153. of money had and received, in connection with evi-
SThe«cotland, 118 U. S. 519 (188fi).
'See 2 Daniel, Ch. Pr. 1515-21; Goodyear v. Sawyer, 1 [Cheetham v. Tillotson, 5 Johns. M35 (1809).
17 F. E. 6 (I8S.3), cases. s Gould, PI. 158.
•• 1 Bl. Com. 227-32. 'See, as to money had and received, Bamett v.
s See 70 Me. 570.
Warren, 83 Ala. 557 (1886); 20 Cent. Law J. 326-30 (1885),
• See Dillon, Munic. Corp. 826.
cases, as to quantum meruit.
' Whitcomb's Case, 120 Mass. 123 (1876), Gray, C. J. « See Nash v. Towne, 5 Wall. 702 (1666).
 COUNTER COUNTRY
270

dence that the defendant admitted his indebtedness on to utter or pass, within the United States, the notes, or
the note. ' other securities of any foreign government, is punish-
Counts for contract and trespass, being dissimilar able by fine and imprisonment at hard labor; and so
in kind, cannot be joined.' See Bad,2; Duplicity; is having in one's possession, without lawful authority,
Joinder.
any plate therefor or printing from the same.'
(2) In criminal procedure, each count in an Under the power " to define and punish offenses
indictment imports a diflferent offense ; is, in against the law of nations," and to " regulate com-
merce with foreign nations," Congress may provide for
effect, a separate indictment.' punishing as a crime the counterfeiting, within the
When a verdict is silent as to one or more counts
United States, of the notes of foreign banks or cor-
and finds guilt as to others, presumably the jury found porations, although they be not the obligations of the
the defendant not guilty as to the former counts.*
See Indictment; Sentence. foreign government.'
Eee False; Forse, 2; Genuine; Guilt; Obliga-
COUNTER. Contrary, in opposition to. tion, 8; Similitude; Spurious; Utter.
See CoNTEA. COUNTERPART. One of the parts of
As a' prefix, denotes that one thing is, an indenture which lay opposite or counter
or is placed, in antagonism to some other: to each other.' A duplicate copy.
as, a counter-afiidavit, counter-bond, coun- Indentures were originally written twice on the
ter-claim, counter-evidence, counter-plea, same sheet of parchment with a space in the middle —
where it was afterward divided.^
counter-proof, counter-statement, counter-
When the several parts of an indenture are inter-
surety, — for each of which see the simple changeably executed by the parties that part or copy
substantive. Compare Cross, 3. which is executed by the grantor is called the orig-
COUNTEBrEIT, v. To make some- inal, and the rest counterparts.^
thing falsely and fraudulently in the sem- COUNTERSIGN. 1. To sign on the op-
blance of that which is true ; also, the thing posite side.
so made. 2. To sign in addition to another, as the
n. A spurious imitation intended to re- superior officer, and in attestation of authen-
semble something which is not.' ticity.5 See Sign, Countersign.
Refers, ordinarily, to imitations of money or of COUNTERVAIL. To operate with
securities. But a trade-mark (g. v.) may be counter- equal effect: to deserve equal consideration.
feited.
An equitable right which is as important or well
The resemblance of the spurious to the genuine founded as another which is being pressed for the
must be such, possibly, as to deceive a, person using
more favorable recognition, is spoken of as a " coun-
ordinary caution."
tervailing equity."
" False, forged, and counterfeit," said of counter- COUNTRY.6 1. In its primary meaning,
feiting Treasury notes, necessarily imply that the in-
strument so characterized is not genuine, but only signifies place; in a larger sense, the terri-
purports to be, or is in the similitude of the genuine tory or dominions occupied by a community,
instrument.^ or even waste and unpeopled sections or re-
It is not necessary in an indictment, under § 5457,
gions of the earth; but its metaphorical
Rev. St., to allege that the act of counterfeiting was
meaning (which is no less definite and well
done with intent to defraud; such intent, if an ele-
ment of the crime, is implied in the allegation of understood) in common parlance, in histor-
"falsely" making." ical and geographical writings, in diplomacy,
On counterfeiting the securities of the United legislation, treaties, and international codes,
States, see Rev. St. § 5413. » denotes the population, the nation, the state,
Counterfeiting, passing, or possessing with intent
the government, having possession and do-
1 Hopkins v. Orr, 184 U. S. 513
'Gould, PI. 159; 3 Bl. Com. 295; 58 N. H. 41. minion over the country." See Place, 1.
As used in the revenue laws, embraces all the pos-
3 United States v. Malone, 20 Blatch. 140 (1881): R. S. sessions ofa foreign state, however widely separated.
§ 1034; s. c. 13 Rep. 67.
■" State 1). McNaught, 30 Kan. 627 (1887), cases. 1 Act 16 May, 1884: 23 St. L. 22.
5 Queen v. Hermann, 4 Q. B, D. 287 (1879). See ' United States v. Arjona, 120 U. S. 479 (1887), Waite,
1 Stew., Ala., 386; 1 Ohio St. 187. Chief Justice.
'United States v. Bogart, 9 Bened. 315 (1878). 1 [Burrill's Law Diet.
«2B1. Com. 296.
' [United
Miller, J. SeeStates v. Howell,
2 Flip. 557; 13 F.11 R.
Wall.
96; 432, 430 Art.
Const. a870),'
I, » See Smith, Eq. 212, 181; 101 U. S. 22.
sec. 8, cl. 6. " F. contree: L. contra, opposite: that which lies
6 United States v. Otey, 31 F. R. 68 (1887). opposite to a city.
» See also United States v. Bennett, 17 Blatch. 358 'United States u. "The Recorder," 1 Blatch. 286
(1879); 22 F. R. 390. (1847), Betts, J.
 COUNTY 271 COUNTY

which are subject to the same supreme executive and within the State, particularly defined by geographical
legislative control.' See Indian, Country. limits, for the more convenient administration of the
3. The inhabitants of a district from which laws and police power of the State, and for the conven-
ience of the inhabitants.'
a jury is to be summoned ; a jury.
Such organization Is invested with certain powers,
Trial by jury is also called trial per pais, or per
patrian, by the country.' delegated by the State, for the purpose of civil admin-
By the policy of the ancient law the jury was to istration; and for the same purpose is clothed with
many characteristics of a body corporate. It is a quasi
come de vicineto, from the neighborhood of tiie place
where the cause of action was laid, For, living in the corporation, for in many respects it is like a corpora-
tion. But the power to sue and be sued is expressly
neighborhood, they were properly the very country,
conferred by statute.'
or pais, to which both parties had appealed, and
were supposed to know beforehand the characters of In the Revised Statutes, or in any act or resolution
the parties and their witnesses. But this convenience of Congress, the word county shall include a " parish "
being overbalanced by the fact that jurors coming or any other equivalent subdivision of a State or Ter-
from the immediate neighborhood naturally inter- ritory.*
mixed their prejudices and partialities in the trial, the "Establishing" a county is setting apart certain
early practice became so far relinquished that the territory to be in the future organized as a political
jury now comes from the body of Uie county at large, community, or quasi corporation for political pm--
and not de vicineto, from the particular neighbor- poses; " organizing " a county is vesting in the people
hood.' See Vende. of the territory such corporate rights and powers.'
Conclude to the country. To tender County corporate. A city or town , with
an issue of fact for trial by a jury. more or less territory annexed, to which, out
God and my country. The answer, at of special favor, the king has granted the
common law, of a prisoner arraigned for privilege to be a county of itself, and not to
trial. See Arraign. be comprised within another county.^
Similar to this are the counties of Philadelphia, New
Put upon the country. To submit a
Tork, and Boston.*
matter in dispute to a jury.
Foreign county. . Another county than
The full expression, on the part of the plaintiff, is,
the one in which a matter arises or is drawn
" And this the said A prays may be inquired of by
the country; " on the part of the defendant, " And in question.
of this the said B puts himself upon the country." * Body of a county. 1. The territorial
Compare Pais; Patbia. limits of a county. See Body, 3.
COUlfTY. Originally, a province gov- 2. The people of a county collectively con-
erned by a count, — the earl or alderman to sidered. See Venue.
whom the government of the shire was in- County bridge. See Bridge.
trusted.'' County court. 1. A name for a class of
A civil division of the territory of Eng-
courts having civil jurisdiction in contro-
land.* versies of medium grade, varied powers in
The terms " the county " and the " people of the the charge, and care of persons and estates
county" may be convertible; so, too, "the county"
within legal guardianship, a limited criminal
and the " commissioners of the county." ^
The city of St. Louis, under the constitution of Mis- jurisdiction, appellate jurisdiction over jus-
souri of 1875, though not a county as that word is ordi- tices of the peace, and numerous powers
narily used in the constitution, is in a qualified sense a and duties in the administration of county
county, being a " legal subdivision of the State " which
bears county relations to the State, and having many
affairs.8
2. In England, a court of great antiquity.
important attributes of a county.^
A county is not a corporation, but a mere political ' Hunter v. Commissioners, 10 Ohio St. 520
organization of a certain portion of the territory
Harris v. Supen-isors, 105 111. 451 (1883); Washer v.
Bullitt County, 110 U. S. 564 (1884) ; Faulkner v. Hyman,
' Stairs V. Peaslee, 18 How. 526 (1856), Taney, C. J. 142 Mass. 54 (1886); Vincent v. Lincoln Co., 30 F. E.
See CampbeUi). Barney, 5 Blatch. 821 (1864). 749-53 (1887), cases; 33 Ark. 497; 14 Fla. 321; 2 Kan.
2 3B1. Com. 349; 4 id. 348. 128; 60 Md. 245; 8 Minn. 504; 10 Nev. 652; 7 Ohio St.
> 8 Bl. Com. 359-60. 109; 10 F. E. 645.
«3B1. Com. 313. As to suits by and against coimties, see 19 Cent.
» [1 Bl. Com. 116; Eastman v. Clackamas Co., 32 F. E. Law J. 185-88 (1884), cases.
29 (1887). » Act 13 July, 1866: E. S. §§ 1-2.
«1B1. Com. 113. > State V. Parker, 25 Minn. 219 (1878); 23 id. 40.
' County Court v. Sievert, 68 Mo. 201 (1874); Carder v. * [1 Bl. Com. 120.
Fayette County, 16 Ohio St. 309 (1865). » See State v. Finn, 4 Mo. Ap. 347 (1877).
» State V. Finn, 4 Mo. Ap. 350 (1877). • [Abbott's Law Diet.
 COUPLED 373

incident to the jurisdiction of the sheriflF. It An instrument complete in itself, and yet composed
COUPON "
of several distinct instruments, each of which is in it-
seems to have had cognizance of purely per-
sonal actions and of some real actions ; but self as complete as the whole together.'
Such coupons are merely interest warrants or in-'
it was not a court of record, i terest-certifioates — written contracts for the payment
Since 1846, a tribunal, established under 9 and 10 of a definite sum of money on a given day."
Vict. c. 95, in upward of five hundred districts, none Most of the bonds of municipal bodies and
within the city of London; and at present invested private corporations are issued in order to raise
with a common-law jmisdiction over demands not ex- funds for works of large extent and cost, and their
ceeding £50, an equity jurisdiction where the amount payment is therefore made at distant periods. Cou-
involved does not exceed £500, together with certain pons for the installments of interest are usually at-
jurisdiction in probate, admiralty, and bankruptcy." t^-ched, in the expectation that they will be paid as
County oificer. One by whom a couiity they mature, however distant the period for the pay-
ment of the principal. These coupons, when severed
performs its usual political functions, — its
from the bonds, are negotiable and pass by delivery.
functions of government; who exercises
They then cease to be incidents, become in fact inde-
"continuously, and as a part of the regular pendent claims; and they do not lose their validity,
and permanent administration of govern- if for any cause the bonds are canceled or paid be-
fore maturity, nor their negotiable character, nor
ment, its public powers, trusts, or duties." '
He may be the auditor, commissioner, supervisor, their abihty to support separate actions. Once sev-
treasurer, or other functionary of the county. Local ered from the bonds, and having matured, they are in
statutes usually designate who shall be considered effect eqiUvalent to separate bonds for the different
county oiHcers, and prescribe their duties. installments of interest."
The holder Is enabled to collect the interest at the
County purpose. May include only the
time and place named, or to transfer the coupon to
ordinary purposes, as the ordinary expenses, another who may collect it, without the trouble of
of a county. 4 presenting the bond itself. This is a convenience to
County seat. See Permanent. the foreign holdfer. The device tends to enhance the
marketableness of interest-bearing securities, and is
Po'wer of the county. The male inhab-
itants of a county, over fifteen years of age, favored by the courts.^
The form does not change their nature. That they
whom the sheriff may command to aid him are payable at a particular place does not make it
in preserving the peace, executing process, necessary to aver or prove a presentation for payment

arresting felons,
See Sheriff; etc. ; Warrant,
Coroner; the posse2. comitatus.'" there.
Suit^ may be maintained upon a coupon without
producing the bond; but the provisions in the bond
COUPLED. See Interest, 3(3), Coupled.
must be recited in such a general way as to explain
COUPOH".6 Something "cut off "from the relation the coupon originally held, and still holds,
another thing : a distinct part of a document to it. Recovery may then be had for the face amount,
or instrument, intended to be separated from with interest from the day when payment was unjustly
the body thereof and used as evidence of refused, and exchange at the place of payment.*
When a coupon upon its face refers to the bond, the
something connected with it or mentioned purchaser is chargeable with notice of all that the
in it.
bond contains."
' Coupon bond. Ordinarily, by " coupon " These separable obligations bear interest after their
is meant a part of a transferable bond or cer- maturity. An unpaid coupon left on a bond is not of
itself evidence that the bond is dishonored.'
tificate of loan, designed to be separated
Interest coupons are instruments of a peculiar
therefrom and used as evidence of interest
nature. Title to them passes by mere delivery. A
due by the terms thereof. The original or
' 2 Daniel, Neg. Inst. § 1488 (1879). See Myers v.
primary obligations are called coupon bonds.
York, &o. E. Co., 43 Me. 239^0 (1857); Ethoven v.
Hoyle, 13 C. B. 378 (1853).
1 See 3 BI. Com. 35; 3 Law Quar. Rev. 1-13 (1S87). "Aurora City i). West, 7 Wall. 105 (1868), cases.
' See 1 Abbott, Law Diet. 399; 59 Law Times, 379 ' Clark V. Iowa City, 30 Wall. 589 (1874), cases. Field,
(1875). J. ; Hartman v. Greenhow, 102 U. S. 684 (1880) ; Wahiut
» [Sheboygan County v. Barker, 3 WaU. 98 (1886), V. Wade, 103 id. 696 (1880); Thompson v. Perrine, 106
Grier, J. See fie Whiting, 8 Barb. 517 (1848); Be Car- id. 598 (1882); Kerr v. City of Corry, 105 Pa. 282 (1884).
penter, 7id. 84 (1840); State, exrel. v. Glenn, 7 Helsk. ■• City of Kenosha i;. Lamson, 9 Wall. 477, 482-86
473 (1872). (1869), Nelson, J.
* MoCormick v. Fitch, 14 Minn. 357 (1869). See also "Walnut V. Wade, 103 U. S. 695 (1880).
23 Ohio St. 339; 1 Sneed, 637. • McLure v. Township of Oxford, 94 U. S. 432 (1876),
•1 Bl. Com. 343; 4 id. 1?3; Reginau Brown, 1 Carr. & Waite. C. J.
M. *314 (1841). ' Indiana & Illinois Central R. Co. v. Sprague, 103
• Koo'-p5ng. F. from couper, to cut, cut off. U. S. 761-63 (1880), cases.
 COUPON 373 COURT

transfer of possession is presumptively a transfer of

canceled, are called "coupon tickets" or
title.' tickets in the " coupon form."
When issued by competent authority they pass into When the carriage is confined to the issuing line,
the hands of a bona fide purchaser for value before the ticket is a contract to carry according to its own
maturity, freed from any infirmity in their origin. As terms; but when there is one ticket for carriage over
with other negotiable paper mere suspicion that there that line and other tickets as passports over other
may be a defect of title in the holder, or knowledge of lines, the first carrier is ordinarily only agent for the
circumstances which would excite suspicion as to his
title in the mind of any prudent man, is not sufficient others, except in cases of express contract to the con-
trary.' See Cakbier, Common.
to impair the title of the purchaser. That result will
COURSE. 1. The direction of a line
only follow where there has been bad faith on his
with reference to a meridian. See Bound-
part.s
Being complete instruments, capable of sustaining ary; Hearsay, 3; Monument, 1.
separate actions without reference to the maturity of 3, Routine; practice; procedure. Com-
the bond, the statute of limitations begins to vxm from
the time when they respectively mature.' See Bond; pare CURSUS.
Ex, 3; iHPAiit.
Course of an action. Progressive action
Coupon note. A promissory, note with in a suit or proceeding not yet determined.*
Due course or process of law. Law
coupons attached, which, in number, corre-
spond to the payments of interest. in its regular administration. See further
Process, 1.
The original note may be secvu-ed by a mortgage.
A form in Iowa reads thus: " Due course " and " due process " of law mean the
J . 1888. same thing."
On the day of , 188—, I promise to pay to Of course. Said of a thing done in the
or order, dollars. Being semi-annual in- common manner of proceeding, and which
terest to that date on my note for dollars, due
does not require special allowance of a judge
188—. Payable at . of the court.
Many rules and citations are taken or had, as "of
Coupon stamp. The Government fur- course," by application to the clerk or prothonotary
nishes collectors of its revenue books of of the court.
stamps having coupons attached, to be used 3. The usual way or mode ; usage ; custom.
when taxes are paid on spirits. Course of business, or of trade. The
There are nine coupons to each stamp representmg
a decimal, all prmted between the stamp and the stub. way ordinarily pursued in a particular call-
ing. See Business; Trade.
Upon the receipt of a distiller's tax, for example, the " Due course of trade," with respect to the negotiar
ofBcer detaches a stamp with such number of coupons
tion of a note, is where the holder has given for it
attached as corresponds to the number of proof -gal-
lons in the cask, as shown by the gauger's return. money, goods, or credit at the time of receiving it, or
Unused coupons remain with the stub; if detached, has on account of it sustained some loss or incurred
they are of no value.* some liability.*
Course of a voyage. The customary
Coupon ticket. Sets or books of tickets
issued by carriers of passengers, providing track between ports. See Deviation.
that for each trip had, according to the terms COURT.5 1. According to Cowel, the
of the contract, a ticket shall be detached or house where the king remains with his reti-
' See Baltimore, &o. B. Co. v. Harris, 12 Wall. 65
1 Eetchum v. Duncan, 96 U. S. 662 (1877). (1870); Hudson v. Kansas Pacific E. Co., 3 McCrary,
a Cromwell v. County of Sac, 96 U. S. 57 (1877), 208,
249 (1882); Keep v. Indianapolis, &c. E. Co., ib.
Y.
Field, J.; Murray v. Lardner, 2 Wall. 110-121
(1864), 214-19 (1882), cases; Quimby v. Vanderbilt, 17 N.
R. Co., 53
313 (1858); Milnor v. New York & New Haven
sKoshkonong v. Burton, 104 U. S. 668, 675 (1881). York &
id 863 369-71 (1873), cases; Kessler -u. New
Eastern E,
See Virginia Coupon Cases, 114 id. 269-340 (1885);
gen- Hudson E. Co., 61 id. 641 (18T5); Hartan v.
83, 175, 384; 3 id. 327; 10 id. 68; 11 id. 139; 08 Ga.
eral y, Wall.
1 Co., 114 Mass. 44 (1873); Wolff v. Central E. Co.,
502,
14 id 232; 15 id. 355; 19 id. 83; 21 id. 354; 92 U. S. 653 (1882); 23 Conn. 457; 29 Vt 421; 26 Ala. 733.
669- 93 id. 502; 94 id. 351, 463, 741, 801; 96 id. 659; 97 id. > Williams V. Ely, 14 Wis. '238 (1861), Dixon, C. J.
101 id. 87, 677; 104 8 Adler v. Whitbeck, 44 Ohio St. 569 (1886).
96, 272- 99 id. 112, "362, 434, 499, 686; 107 id. 529, 539, 568, J.;
id 505; 105 id. 370, 733; 106 id. 663; *[Kimbro i'. Lytle, 10 Yerg. 428 (1837), Eeese,
711 769; 15 Blatch. 343-46; 16 id. 54; 17 id. 4;
18 id. Merchants' Bank v. McClelland, 9 Col. 608 (1886).
63;
383- 26 Conn. 121; 53 Ind. 191; 109 Mass. 88; 112 id. 6 F cort, curt, co«r<, acourt oryard; also,
a tribunal:
382; 66
49 Me 607; 2 Nev. 199; 67 N. H. 397; 82 N. C. L co,-iis,a court- yard, court, palace : L. cors, an m-
Neg. Inst.
N. Y. 14; 44 Pa. 63; 22 Gratt. 833; 1 Daniel, closure : co-, together ; hort-w, a garden,
yard,- Skeat.
Ch. XLVn.
place, a palace,-
<R. S. §3313. Orig from L. cers, a pen, a fortified Cuetiiage.
(181 Milller, Science Lang. 269. Compa
re
 COURT 374 COURT

nue ; also, the place where justice is admin- record and attest its acts and decisions, and
istered. ministerial officers to execute its commands
These two meanings, in the beginning, were closely
and secure order in its proceedings. •
connected. For, in early history, when the king was
Proceedings at another time and place or in an-
actually t^he fountain and dispenser of justice, nothing other manner than that specified by law, though in
could be more natural than that subjects who had
the personal presence and under the direction of a
complaints of ill-treatment to make should use the ex-
coram non judice, and void.''
pres ion the
" court," in speaking of the journey to The are
judge, definition given by Coke (and Blackstone) lacks
the place where the king was domiciled, and the ap- fullness: it is limited to the place of a court. There
plication to him preferred, usually in the court of must also be the presence of the ofBcers constituting
the palace, for interference and redress. Anciently, the court, the judge or judges certainly, and probably
then, the " court," for judicial purposes, was the king the clerk authorized to record the action taken; time
and his attendants; later, those who sojoiu-ned or must be regarded, too, for the offtoers of a court must
traveled with him, to whom he delegated authority to be present at the place and time appointed by law.
determine conti'oversies and to dispense justice. ^ To give existence to a court, then, its officers, and the
The earlier courts were merely assemblages, in the
time and place of holding it, must be such as are pre-
court-yard of the baron or of the king himself, of
scribed by law. . . " Open court " conveys the idea
thpse whose duty it was to appear at stated timeSj or that the court must be in session, organized for the
upon summons. Traces of this constitution of courts transaction of judicial business. It may mean public,
remain in tribunals for the trial of impeachments, and
in the control exercised by legislatures over the organ- free to all.'
A permanent organization for the administration of
ization of courts of justice, as constituted in modern
justice; not a special tribunal provided for bylaw, oc-
times. Indeed, parliament is still the " High Court of casionally called into existence and ceasing to exist
Parliament," and in Massachusetts the united legisla- with particular exigencies.* See further Tribdnal.
tive bodies are entitled the '' General Court." ^ 3. The judge charged with deciding the
A place -where justice is judicially admin- law in a given case ; as opposed to the jury,
istered, s who are triers of the fact.
The more effectually to accomplish the redress of
private injuries, courts of justice are instituted to The term "court" may mean the "judge" or
"judges" of the court, or the judge and the jury, ac-
protect the weak from the insults of the strong, by ex-
pounding and enforcing those laws by which rights cording to the connection, and the object of its use.'
See Judge; JnraoiART.
are defined and wrongs prohibited.* " For the speedy, universal, and impartial adminis-
As the executive power of the law is vested in the
tration of justice the law has appointed a variety of
king, courts of justice, which are the medium by which
courts, some with a more limited, others with a more
he .administers' that law, originate with this power of extensive; jurisdiction; some to determine in the first
the crown. . . He is represented by his judges.^ instance, others upon appeal and by way of review.
In every court there must be: an actor, plaintiff, Of these the most important are :
who complains of an injury; a reus, defendant, who
Civil court. A court instituted for the
is called upon to make satisfaction; and & judex, judi-
cial power to examine the truth of the fact, determine enforcement of pi-ivate rights and the redress
the law arising thereon, and, for injury done, by its
of private wrongs; any court which admin-
officers to apply the remedy.' isters civil law. Criminal court. Any
A tribunal established for the public ad-
ministration ofjustice, and composed of one tribunal for the redress of public wi-ongs —
crimes and misdemeanors. IBcclesiastical
or more judges, who sit for that purpose at court. Such judicatory as enforces law
fixed times and places, attended by proper
made by a religious body for its own govern-
officers.' ment. See Church.
An organized body, with defined powers, Court of law, or coiirt of common law.
meeting at certain times and places for the
Any court which administers justice accord-
hearing and decision of causes and other
ing to the principles and forms of the com-
matters brought before it, and aided in this
by its officers, viz., attorneys and counsel to
1 [Burrill's Law Diet.
pi'esent and manage the business, clerks to = See Wightman v. Karsner, 20 Ala. 451 (1858); Brum-
ley V. State, 30 Ark. 78 (1859).
1 [Abbott's Law Diet. » Hobart v. Hobart, 45 Iowa, 503 (1877), Beck, J. See
2 [Bouvier's Law Diet. Lewis V. Hoboken, 42 N. J. L. 379 (1880).
» 3 Bl. Com. 83: Coke, Litt. 58. * [Shurburn v. Hooper, 40 Mich. 505 (1879); Streeter v.
4 3B1. Com. 3. Paton, 7 id. 348 (1859), Manning, J. '
»3 Bl. Com. 23-24; 1 id. 870. » See Gold v. Vermont Central R. Co., 19 Vt. 482 (1847);
»3 Bl. Com. 86; 34 lU. 360; 14 F. R. 178. Michigan Central R. Co. v. Northern Indiana R. Co., 3
' Mason v. Woerner, 18 Mo. 570 (1863), Gamble, J. Ind. 845(1861); 13 E. L 401.
 275
COtTKT COURT

mon law. Court of cliancery, or of " supreme court of errors." In most,

of the other States, the name supremeif not quite all,
court, for a
equity. A court which proceeds wholly court possessing the general characteristics above de-
according to the principles of equity, g. v. scribed, iapplied
s to the court of last resort ' As to the
Court of original jurisdiction. Such Supreme Court of the United States, see page 3T8.
court as is to exercise jurisdiction over a Court of record. A court in which the
matter in the first instance. Court of ap- acts and judicial proceedings are enrolled on
pellate jurisdiction. Is organized to re- parchment for a perpetual memorial and
view causes removed from another court or
testimony. . . All such are the king's
courts. Court of general jurisdiction. courts; no other has authority to fine and
Takes cognizance of all causes, civil or- crim- imprison : so that the erection of a new juris-
inal, of a particular nature. Court of lim- diction with this power makes it instantly a
ited or special JTirisdiction. May have court of record. Court not of record.
cognizance over a few matters only. Originally, the court of a private man, whom
Inferior court. A court subordinate to the law would not intrust with discretionary
another ; or, a court of limited jurisdiction. power over the fortune or liberty of his fel-
Superior court. A court with controlling low-subjects :as, the courts-baron and other
authority over some other court or courts, inferior jurisdictions where the proceedings
and with certain original jurisdiction pf its were not enrolled or recorded, and which
own. Supreme court. A court of the could hold no plea of a matter cognizable by
highest jurisdiction; also, a court higher the common law, unless under the value of
than some other court or courts, but not forty shillings, nor of any forcible injury,
necessarily of last resort. not having process of arrest.^
Inferior courts. AJl courts from which an appeal The existence or truth of what is done in a coiui;
lies are *' inferior " to the court to which their judg- not of record can, if disputed, be tried and determined
ments may be carried — as are the circuit and district by a jury ; but nothing can be averred against a " rec-
courts of the United States, but they are not, there- ord," *q. V.
fore, "inferior courts " in the technical sense as ap- A court of record is a judicial, organized
plying to courts of a special and limited iurisdiction, tribunal having attributes and exercising
which are created on such principles that their judg-
ments, taken alone, are entirely disregarded, and the functions independently of the person of the
proceedingsmustsTioMJtheir jurisdiction.! See further magistrate designated generally to hold it,
Appabere, De non, etc. and proceeding according to the course of
Superior courts. Courts in Connecticut, Delaware,
Georgia, Massachusetts, and North Carolina, whose the common law.'
jurisdiction extends throughout the whole of a defined The power to fine and imprison was not an
district or of the whole State. In a few other States, indispensable attribute of a court of record.
the title of a court or courts organized in a particular In modern law, the fact that a permanent
city or county, additional to the general system; as in record is kept may not stamp this character
one or more counties of Illinois, Indiana, Maine, Mary-
land, and Michigan. upon a court; since numerous courts of
Supreme courts. The supreme courts of New limited or special jurisdiction are obliged to
Hampshire, Pennsylvania, and Vermcfut, the "su- keep records and yet are held to be courts
preme courts of appeal " of Virginia and West Vir- not of record.*
ginia, and the " supreme judicial courts " of Maine courts of record are sometimes distmgtiished by
and Massachusetts, in addition to their appellate the possession and use of a seal.
powers, exercise an additional jurisdiction, more or There is high authority for making the fact that a
less general, in the issuing of the prerogative writs of court is a court of record the test which confers upon
mandamus, prohibition, quo warranto, etc. In New its proceedings, in a particular case (falling within the
Jersey the supreme court is the highest court of law general scope of its jurisdiction), the presumption of
of original jurisdiction; and in New York a court, jurisdiction, rather than the fact that it is a superior
next to the court of appeals, with certain general orig- court of genei-al common-law powers.'
inal jurisdiction coupled with some appellate powers.
In Connecticut the court of last resort is called the
1 See 2 Abbott's Law Diet.
> [Kempe v. Kennedy, 5 Cranch, 185 (1809), Marshall, a [3 Bl. Com. 24-25, 331. See 10 Watts, 24; 34 Cal. 422 ;
C. J. See M'Cormiok v. Sullivant, 10 Wheat. 199 (1825); 23 Wend. 377; 37 Mo. 29.
Exp. Watkins, 3 Pet. *205 (1830); Grignon v. Astor, 2 s See Exp. Gladhill, 8 Mete. 170 (1844), Shaw, C. J.
How. 341 (1844); Kennedy v. Georgia State Bank, 8 * See 1 Bouvier's Law Diet. 426.
id. 611 (1860); Exp. Lathrop, 118 U. S. 113 (1886); Cooley, 5 Davis V. Hudson, 29 Minn. 3S (1881); Freeman,
Const. Lim. 508-9, cases. Judgm. § 122, cases.
 COURT
COURT
376

Minor terms descriptive of courts are: Aula; Chancery; Coroner; Country, 8; County,
Court, 2; Exchequer; Feuds; King; Ordinary, 8;
Court above or ad quern. To which a
cause is taken .from another and inferior Oyer; Plea, 1; Star-chamber.
CouETS OF Scotland. The court of ses-
court. Opposed, court below or a quo:
sion, the supreme civil court, consists of two
such lower court, from which the cause is divisions of four judges each, who together
removed. Xiocal court. For the trial of
form the inner house, and of five judges
causes within comparatively narrow terri- (lords ordinary) who form the outer house.
torial limits: also, the court of a State, as
The judges of the outer house are judges of
opposed to the court of the United States to
the first instance, with co-ordinate authority;
which a cause may be removed. Pull court.
except as to certain classes of cases appropri-
A session of a court at which all the mem- ated to the junior, the second junior, and the
bers are present.
third junior lord ordinary, respective!/. The
Other terms descriptive of special courts will be
found explained in their alphabetical places, as see, in inner house, which is mainly a court of re-
addition to the entries following, Appeal; Abbitra- view, consists of the first division, presided
tiok; Error, 2 (3); Impeach, 4; Moot; Martial; Nisi over by the lord president, and the second
Phius; Oyer and Terminer; Probate.
division, presided over by the lord justice
See also phrases beginning Breast; By; Day;
Friend; IJeate; Out; Open.
clerk. No action can be brought in the court
And see related terms, such as Attorney; Bench; of session for an amount under twenty.five
Chamber; Clerk; Comity; Constitution; Contempt,
1; Costs; Crier; Deposition; Discretion, 3-5; Judge; CODETS OF THE STATES. There is no uni-
Judgment; Judicial; Judiciary; Jurisdiction, 2; pounds. I
formity among our States as to the number,
Jury; Law; Newspaper; Notice, 1, Judicial; Pay-
ment; Pleading; Pr^sumptio; Procedure; Becord, name, or organization of their courts. Each
8; Rule, S; Session; Term, 4; Vacation. State has some tribunal of last resort, with
Compare Curia; Forum. numerous subordinate tribunals; but the
Courts of England. Statutes of 36 and mode in which they are created, the extent
37 Vict. c. 66, and 38 and 39 Vict. c. 77, both of their jurisdiction, the selection of the
of which went into efEeot November 1, 1875, judges and their terms of office and duties,
consolidated into one supreme court of judi- are matters upon which each State legislates
cature the high court of chancery, and the for itself. By name these courts are: a
courts of queen's bench, common pleas, ex- supreme court, court of appeals, or court of
chequer, admiralty, probate, and divorce and errors and appeals ; courts of common pleas,
matrimonial causes. The supreme court has county courts, or circuit courts for one or
two divisions : the high court of justice and
more counties; orphans', probate, or surro-
the court of appeal ; the former of which has
gates' courts; courts of sessions; recorders'
original and some appellate jurisdiction, and courts; city courts; superior courts; district
the latter appellate and some original juris-
courts ; aldermen's or justices' courts.
diction. The lord chief jiTstice is president For an account of which, see those titles, and the
of the former court, the lord chancellor of names or titles and references on page 275.
the latter. CODETS OF THE UNITED STATES. "The
To the high court of justice there are five divisions; judicial Power of the United States shall be
chancery; queen's bench; common pleas; exchequer; vested in one supreme Court, and in such
probate, divorce, 'and admiralty. To each of these di- inferior Courts as the Congress may from
visions are assigned the judges of the old courts simi-
time to time ordain and establish." 2
larly named, and the jurisdictions ' of those courts.
Bach division has its series of reports; another series " The judicial Power shall extend to all
comprises the decisions of the court of appeal — " ap- Cases, in Law and Equity, arising under this
peal cases."these courts of superior jurisdiction are Constitution, the Laws of the United States,
Besides
numerous others of inferior or local jurisdiction, and
and Treaties made, or which shall be made,
also ecclesiastical courts, i See Judicature, Acts. under their Authority ; — to all Cases affect-
As to the older English courts, see'' Admiralty; ing Ambassadors, other public Ministers and
Consuls; — to all Cases of admiralty and
>See Preface to 15 Moak's Reports, i-xv; 2 Law Q.
Eev. 1-11 (1886). 1 See 37 Alb. Law J. 4-7 (
2 3B1. Com. Ch. III-VI. 2 Constitution. Art. Ill, sec. 1.
 COURT 377
COURT

maritime Jurisdiction ; — to Controversies to ciples, rules and usages belonging to courts of equity.
This requirement is obligatoiy.'
which the United States shall be a Party; — In the following cases and proceedings jurisdiction
to Controversies between two or more is exclusive in the courts of the United States;'' 1. Of
States ; — between a State and Citizens of an- all crimes and offenses cognizable under the authority
other State; — between Citizens of different of the United States. = 2. Of all suits for penalties and
States ; — between Citizens of the same State forfeitures incm-red under the laws thereof." 3. Of
claiming Lands under Grants of different all civil causes of admiralty or maritime jurisdiction, .
saving to suitors the right of such remedy as the com-
States, and between a State, or the Citizens mon law is competent to give. 4. Of all seizures under
thereof, and foreign States, Citizens or Sub- Federal law not within admiralty and maritime juris-
jects." 1 See Power, 3. diction. 5.Of all cases arising under patent-right ' or
The judges are appointed by the President, by and copyright laws." 6. Of all mattei-s in bankruptcy.'
with the advice and consent of the Senate; and they 7. Of all controversies of a civil nature where a State
hold office during good behavior. ^ is a party, except between a State and its own citizens,
The oath taken by justices of the Supreme Court, citizens of other States or aliens.'*
the circuit and the district judges, is as follows; The courts mentioned have power to issue all writs,
" I, , do solemnly swear (or afSi-m) that I not specifically provided for by statute, which may be
will administer justice without respect to persons, and necessary for the exercise of their respective jurisdic-
do equal right to the poor and to the rich, and that I tions and agreeable to the usages and principles of
will faithfully and impartially discharge and perform
all the duties incumbent on me as justice of the Su- A re-examination, by writ of error, may be had in
preme Court of the United States, according to the law.8
the Supreme Court, of a final judgment or decree in
best of my abilities ^od understanding, agreeably to any suit in the highest court of a State, where there is
the Constitution and laws of the United States; So drawn in question the validity of a treaty or statute
of, or an authority exercised under, the United States,
help me God." ^
The organization of the system of courts (except as and the decision is against their validity; or the valid-
to the Supreme Court) was commenced by the act of ity of a statute of, or an authority exercised under, a
September 2^, 1789, known as the Judiciary Act, q. v. State, on the ground of repugnance to the Constitu-
The laws of the several States, except where the tion, treaties, or laws of the United States, and the de-
Constitution, treaties, or statutes of the United States cision is in favor of their validity; or where any title,
otherwise provide, are to be regarded as " rules of de- right, privilege, or immunity is claimed mi'der the Con-
cision in trials at common law " in the coiuts of the stitution, atreaty or a statute of, or commission held
or authority exercised under, the United States, and
United States, in cases where they apply.'
This iuclude.s the rules of evidence prescribed by the decision is against the title, right, etc., specially
the laws of the States in which the United States
set The
up or claimed.
record from1" the State court of last resort must
courts sit." See further Decision, Rules of.
August 8, 1791, Chief Justice Jay, in answer to an present » "Federal question," that is, the Constitu-
interrogation by the attorney-general, announced that tion, alaw, or a treaty, of the United States must have
been drawn in question and its authority denied or
" this comi; consider the practice of the king's bench,
and of chancery, in England, as affording outlines for
the practice of this court; and that they will, from It is ^1not enough that a Federal question was pre-
evaded.
sented for decision. It must affirmatively appear that
time to time, make such alterations therein as cu'cum-
the decision was necessary to the determination of the
etances may render necessary." ^
Remedies at common law and in equity are not cause, and that the judgment rendered could not have
according to the practice of the State courts, but ac- been given without deciding it."
cording to the principles of common law and equity
' R. S. § 91.3, cases; Hurt v. Hollingsworth, 100 U. S.
as distinguished in England, whence we derive our
103 (1879), cases; Herklotz v. Chase, 32 F. R. 433 (1887).
knowledge of those principles.' '^ R. S. § 711 : various Acts, and cases.
The blending of equitable and legal causes of ac- sSee 2 Ball. ;ffl3; 4 Saw. 634; 63 Pa. 113; 2 Woods, 428.
tion in one suit is net pennissible. But in suits in
< See 47 Md. 242; 74 111. 217; 95 Mass. 301.
equity in the circuit and district courts the forms and "See 7 Johns. *145; 66 N. Y. 469; 24 Iowa, 231; 103
modes of proceeding shall be acoordmg to the prin- Mass. 501 ; 40 Me. 430; 15 Mich. 205.
' See 47 N. Y. 53.).
' Constitution, Art. in, sec. 2. See S Bancroft, Const. ' See 119 Mass. 434; 3 Neb. 437; 73 N. Y. 159; 69 N. C.
195-206.
464.
2 Constitution, Art. II, sec. 2, cl. 2. " See 29 Ark. 049; 27 La. An. 329; 3 HUl, N. Y.. 159.
= R. S. § 712; Act 24 Sept. 1789. » R. S. § 716; Rosenbaum v. Bauer, 130 U. S. 450 (1887),
<R. S. §721, cases. cases; 10 V>lieat. 51; 1.5 Wall. 437; 21 id. 389; 94 U. S.
» Potter V. Third Nat. Bank of ,Chicago, 102 U. S. 163 673; 5 Blatch. 303.
(1880), cases. »»R. S. § 709, cases; 1 Sup. E. S. p. 133.
"Rules and Orders, Supreme Court, 1 Cranch, xvi. 11 Williams v. BruE:y, 102 U. S. 2.5,j (1880).
' Thompson v. Central Ohio, &c. E. Cos., 6 Wall. 1.37 12 Brown i: Atwell, 92 U. S. 339 (187.-)); Home Ins. Co.
(1867), cases.
V. City Council, 93 id. 121 (1876); Gold-Washmg, &c.
 278 COURT
COURT

Writs of error to the State courts have never been such Exceptions and under such Regulations
allowed as of right, that is, as of course. It is the
duty of the justice to whom application is made, under as the Congress shall make." '
Congress cannot extend this orighial jurisdiction,
Eev. St. S 709, to ascertain, from the record of the State
since in all other cases the Court's jurisdiction must
court, whether any question, cognizable on appeal, was
decided in the State court, and whether the case, on be But
appellate."
the extent of the appellate jurisdiction is not
the face of the record, will justify re-examination. limited by the Constitution to any particular form or
When the case is urgent the motion for the writ may mode; and the appellate is broader than the original
be permitted to be made in open court. But if it ap-
pears that the decision of the Federal question was so jurisdiction.
In view of3 the practical construction put upon the
plainly right as not to require argument, and espe- Constitution by Congress and the courts, the Supreme
cially ifit accords with well-considered judgments in Court has expressed an unwillingness to say that it is
similar cases, the writ will not be awarded.' not within the power of Congress to grant to the in-
At the trial some title, right, privilege, or immunity ferior courts jurisdiction in cases where that Court has
must have been "specially set up or claimed" under been vested by the Constitution with original jurisdic-
the Constitution, laws, or treaties of the United States.^
The " inferior courts " {which phrase see, page 275) The Coifft has power to issue a writ of prohibition
established are: Circuit courts, District courts, Terri- tion.*
to a district cotu't proceeding as a court of admiralty
torial courts, the Supreme Court of the District of and maritime jurisdiction; also, a writ of mandamus,
Columbia, and the Court of Claims.
in a case warranted by the principles and usages of
Congress can vest no part of its power in a State law, to an inferior Federal court or to a person hold-
court; • nor in a military commission.* During the re- ing a Federal office; where a State, a public minister,
bellion the President had power to establish provis- a consul or vice-consul is a party ; " also, to issue writs
ional courts at the seat of war, as an incident to mili- of habeas corpus; " writs of scire.facias, and all other
tary occupation.' See War. writs not especially provided for by statute, which
By consent of a State, Congress may impose duties may be necessary for the exercise of its jurisdiction
upon the tribunals of a State, not incompatible with
and agreeable to the principles and usages of law.'
State duties." The justices, individually, rnay grant writs of habeas
Supreme Court of the United States. corpus, of ne e:ceat, and of injunction,** qq. v.
This court, as seen, Was established by the The Court exercises appellate jurisdiction
Constitution itself. '' as follows : (1) By writ of error from the final
" In all cases affecting Ambassadors, other judgment of a circuit court, or of any dis-
public Ministers and Consuls, and those in trict court exercising the powers of a circuit
which a State shall be a party, the supreme court, in civil actions brought there by orig-
Court shall have original Jurisdiction. In all
inal process, or removed thei-e from the court
the other Cases before mentioned [page 376], of a State, and in final judgments of any
the supreme Court shall have appellate Juris- circuit court in civil actions brought from
diction, both as to Law and Fact, with the district court, where the matter in dis-
Co. V. Keyes, 96 id. 803 (1877); Daniels v. Tearhey, 102 pute, exclusive of costs, exceeds $5,000.'
id. 417 (1880); Brown v. Colorado, 106 id. 96 (1882); New (3) Upon appeal from the decree of a circuit
Orleans Waterworks Co. v. Louisiana Sugar Eeiining court in cases of equity and of admiralty,
Co., 125 id. 29 (1888), oases; 99 id. 71, 99; 107 id. 319; 111
id. 361; 112 id. 127; 114 id. 133; 116 id. 548; 21 Wall. 689. where the sum in controversy, exclusive of

1 Spies V. niinois (The Anarchists' Case), 123 U. S. 163 costs, exceeds $5,000.'" (3) And in xertain
(Nov. 2, 1887), Waite, O. J.; Twitohell v. Pennsylvania, other oases in admiralty, for which see act
7 Wall. 324 (1868), Chase, C. J. Anarchists' Case com- of February, 1875, 18 St. L. 315. (4) Upon
mented on, 27 Am. Law Beg. 38-47 (1888), cases ; 1 Harv.
Law Eev. 306-36 (1888). appeal, or error upon a certificate of differ-
' Brooks V. Missouri, 184 TJ. S. 394 (Jan. 23, 1888),
Waite, C. J.; French v. Hopkins, ib. 524 (1888). ■ Constitution, Art. HI, sec. 2, cl. 2. See Act of 1789,
sMartm v. Hunter's Lessee, 1 Wheat. 330 (1816); 7 ». 13: E. S. §687.
Conn. i!43; 17 Johns. 9. ' Exp. Vallandigham, 1 Wall. 852 (1863), cases.
4 Exp. MUligan, 4 Wall. 121 (1866). s Exp. Virginia, 100 U. S. 341-42 (1879), cases.
' The Grapeshot, 9 Wall. 132 (1869). As to criminal • Ames V. Kansas, 111 U. S. 469 (1884).
jurisdiction generally, see United States v. Clark, 26 » E. S. § 688, cases.
Am. Law Eeg. 703-9 (1887), cases; also, Circuit, etc.. » E. S. § 751, cases.
Courts, post. ' E. S. § 716, cases.
8 United States v. Jones, 109 U. S. 580 (1883); 1 Kent, 8E.S. §§717, 719, 768, cases.
400. »E. S. § 691, cases: Act 16 Feb. 187S: 1 Sup. E. S.
' To be the " bulwark of a limited Constitution
against legislative encroachment," — Federalist, p."E.
136. S. § 692, cases; Act 16 Feb. 1875. See Circuit
Ixxviii. Court, p. 880.
 COURT 279 COUET

ences of opinion between the judges of a cir- twelve o'clock noon (in advance of the justices), at the
north door of the court room, the crier raps on the
cuit court, i (5) Upon appeals in prize cases. 2 desk three times, for the audience to come to order
(6) In patent and copyright cases ; in revenue and to rise from their seats. When the chief justice
cases ; in alleged abridgment of the rights of enters the door the crier announces '*The honorable,
citizenship, s (7) In cases from the judgment the chief justice and associate justices of the Supreme
or decree of the sujjreme court of the District Court of the United States I" As the justices seat
themselves, after ascending the platform, the crier
of Columbia or of any Territory, when the
proclaims: "Oyez! O yezl OyezI All persons hav-
matter in dispute, exclusive of costs, exceeds ing business before the honorable, the Supreme -Court
$1,000 and as to the supreme court of the of the United States, are admonished to draw near
and give their attention, for the Court is now sitting.
said District $2,500,'' and of Washington
God save the United States and this honorable Courtl "
Territory, $3,000;* except in cases involving
At four o'clock P. M., on intimation (usually a gesture)
the validity of a patent or copyright, or in from the chief justice, or at such other time £ts he
which is drawn in question the validity^^a may indicate, the crier announces: "This honorable
treaty or statute of or an authority exer^Rd Court is now adjourned until to-morrow at twelve
under the United States, in which cases ap- o'clock," or until " Monday, at twelve o'clock."
peal or error lies regardless of the sum or Circuit courts of the United States.
value in dispute." In oases in the court of These are courts of the "circuits" into
claims, decided for the plaintiflE, the sum which the country is divided ; each circuit
being over $3,000 or his claim forfeited.' being composed of at least three "judicial
(8) In capital cases and cases of bigamy or districts." In number and territorial juris-
polygamy from Utah Territory. 8 (9) Incases diction the courts correspond with the fol-
involving a Federal question, as see page 277. lowing circuits :
(10) Where a court dismisses or remands a First. — Maine, New Hampshire, Massa-
cause to a State court. chusetts, and Rhode Island.
Its criminal jvirisdiction includes such proceedings Second. — Vermont, Connecticut, and New
against public ministers or their domestic servants as York.
a court of law can have consistently with the law ot
Third. — New Jersey, Pennsylvania, and
nations.' Delaware.
The judges of the Supreme Court consist of a chief
justice and eight associate justices, any six of whom Fourth.— Maryland, Virginia, West Vir-
constitute a quorum; " the latter have precedence ac- ginia, North Carolina, and South Carolina.
cording to the dates of their commissions, or, where
the dates are the same, according to age." Fi/i?!.— Georgia, Florida, Alabama, Mis-
The number ot members was originally five; in 1807, sissippi, Louisiana, and Texas.
it was made six; in 1837, eight; and in 1863, nine.
Sixth.— Ohio, Michigan, Kentucky, and
The Court holds one term, annually, at Washington Tennessee.
City, commencing on the second Monday of October, Seventh.— Indiana, Ilhnois, and Wisconsin.
and such special terms as it may find necessary. '« Eighth. — Minnesota, Iowa, Nebraska,
Provision is made for adjournments when a quorum
does not attend.** ^_^ Missouri, Kansas, Arkansas, and Colorado.
The Court appoints a clerk, a marshal, and a re- Ninth.— CaUtoinia, Oregon, and Nevada.*
porter of its decisions.'* For the second circuit an additional judgeship was
The ceremony observed in opening and closing the created by the act of March 3, 1687 (24 St. L. 492). The
Court is as follows: When the marshal appears, at "senior judge" sits in election proceedings (E. S.
§§ 2011-14), unless absent or unable to serve, in which
» E. S. §§ 693, 697, cases. event the " junior judge " may act.
»R. S. §§ 695-96, cases. There are also courts called " circuit courts " for
»R. S. §699, cases. particular districts within Alabama, Arkansas, and
« Act 25 Feb. 1879: 1 Sup. E. S. p. 149.
Mississippi."
«E. S. §1 702, 706, cases. A circuit court consists of a justice of the Supreme
" E. S. §§ 702, 706, cases. judge "
Court, called the " circuit justice," a " circuit
» E. S. § 707, cases. the cii-cuit
for the circuit having the same powers as
e Act 23 June, 1874: 1 Sup. E. S. p. 108. district where
justice, and the " district judge " of the these officials
• E. S. § 4063, cases. the circuit court is held. Any two of
apart,
'» E. S. § 673: Act 10 April, 1869. may hold court. The " circuit justice," sitting
" E. S. §§ 674J'S: Acts 24 Sept. 1789, 25 June, 1868. he must attend
may try cases ; during every two years
" E. S. § 684: Acts 23 July, 1866, 24 Jan. 1873.
" E. S. § 685: Acts 29 April, 1802, 21 Jan. 1829. ' E. S. § 604: various Acts, 1789 to 1876.
" E. S. § 677: various Acts, 1789 to 1867. ■ ' See E. S. § e03; 1 Sup. E. S. p. 87.
 580 COURT
COURT

at least one term of court in tlie district.^' By consent new definition was given of the jurisdiction,
of the parties tlie district judge may vote on an ap- which is very comprehensive, and has been
peal from his own decision; but judgment is to be
held to be a substitute for and implied repeal
rendered in conformity with the opinion of the pre-
siding judge.' When a circuit justice, or all the of the provisions of the Revision of 1873.1 _ See
judges, are disqualified from any cause, a case may further act of March 3, 1887, page 381.
be certified to the most convenient circuit, or the
The $2,000 provision relates to the amount "in dis-
judge thereof may be requested to hold the court.^ pute," not to the amount claimed.' The Supreme
Each court appoints its own clerks and their depu- Court has power of review where the matter in dis-
ties.< pute exceeds the sum or value of $5,000, exclusive of
Each court also appoints as "commissioners" as
many discreet persons, none of them being a marshal The matter in dispute may be made up of distinct
costs.'
or his deputy, as may be deemed necessary; ^ but demands each less than $2,000, and although title be
they are not considered ofdcersof the court." They acquired by assignment.*
are authorized to hold persons to security of the peace, The jurisdiction is co-extensive with the limits of
and for good behavior in cases arising under Federal the State. ^ Where there are two districts in a State, a
law,' to take bail and affidavits required in another citizen of such State is liable to suit in either district,
circuit or a district coxurt." They may imprison or itserved with process."
bail offenders; ^ discharge poor convicts; i" administer The fact that a nominal or immaterial party resides'
oaths and take acknowledgments;" apprehend fugi- in the same State with one of the actual parties will
tives from justice, i* They are required to conform not defeat the jurisdiction.'
their proceedings in criminal cases to the practice in The court, not being a foreign court, adopts and
the State courts as far as practicable.'' They are im-
applies the law of the State. ^
pliedly authorized to keep a docket, and entitled to The facts on which jurisdiction rests must, in some
docket fees." form, appear on the face of the record of each suit;
The jurisdiction of the circuit courts is as, for example, the fact of citizenship.^
such as Congress confers, is A general de- More specifically, the original jurisdiction
scription of the original jurisdiction is, that includes: cases arising under — laws px'ovid-,
it estends (subject to some limitations ing internal revenue, postal laws, patent
founded upon residence) . to civil suits in- laws, copyright laws ; proceedings for penal-
volving more than $2,000, — (by act of March ties incurred by a merchant vessel in carry-
3, 1887,— prior thereto $500) exclusive of ing passengers ; suits by or against a national
costs, and arising under the Constitution, banking association; matters involving thS
laws, or treaties of the United States, or in elective franchise and other civil rights be- ^
which the United States are plaintiffs, or in longing to citizens of the United States ; -also, \
which the controversy is between different exclusive jurisdigtion of all crimes and offenses
States, or citizens of a State and foreign cognizable under the autliority of the United
States, citizens, and subjects ; also of crimes States, except when otherwise provided, and
under the laws of the United States. They concurrent jurisdiction with the district courts
have no appellate jurisdiction over the dis- of offenses cognizable therein,!"
trict courts. 16 By act of March 3, 1875," a In an admiralty cause by consent, and in a patent
cause in equity under rules made by the Supreme
1 R. S. § 610: Act 10 April, 1869. Court, the court may impanel a jury of five to twelve
= E. S. § 614: Acts 84 Sept. 1789, 29 April, 1803, 2 persons to determine the issue of fact.'i But except-
March, 1867.
' E. S. §§ 615, 617: various Acts, and cases; Super- 1 Osgood V. Chicago, &c. R. Co., 6 Biss. 332 (1875).
visors V.Bogers, 7 Wall. -175 (1868). = Brooks V. Phcenlx Mut. Life Ins. Co., 16 Blatch. 188
*E. S. §§ 619, 624: various Acts. (1879).
»E. S. §§ 627-28: various Acts. ' 1 Sup. R. S. p. 136; E. S. §§ 691-92; 100 U. S. 6, 147,
• Exp. Van Orden, 3 Blatch. 167 (1854). 158, 444, 457; 101 id. 231; 102 id. 177; 103 id. 673,755;
106 id. 679.
'E. S. § 727: various Acts.
' E. S. § 945: various Acts. « Bemheim v. Bimbaum, 30 F. R. 886 (1887).
'E. S. §§ 1014-15: various Acts. « Shrew v. Jones, 2 McLean, 78 (1840).
" E. S. § 1042: Act 1 June, 1873. "M'Micken v. Webb, 11 Pet. *38 (1837); Tore v.
1' E. S. § 1778: various Acts. Fowler, 2 Bond, 294 (1869); 10 Blatch. 307.
" R. S. § 5270: Acts and cases. ' Walden ti. Skinner, 101 U. S. 589 (1879);
"R. S. §101*; United States u. Harden, 4 Hughes, e Tennessee ■«. Davis, 100 U. S. 271 (1879).
456 (1881). » Continental Lite Ins. Co. v. Ehoads, 119 U. S. 239
'* Phillips V. United States, 33 F. E. 164 (1887). (1886), cases; Menard v. Goggan, 121 id. 263 (1887).
IS Sewing Machine Cases, 18 Wall. 577 (1877). i» E. S. § 629: Act 3 March, 1875: 18 St. L. 470.
'* See R. S. § 629: various Acts and cases. "Act 16 Feb. 1875, c. 77: 18 St. L. 315. See 98 U. S.
■' 18 St. L. 470: 1 Sup. E. S. p. 173. 440; 101 id. 6, 247; 102 id. 218.
 281
COURT COURT

ing these cases, reference to referees, and some ex- controversy between citizens of the same Stata
ceptions inbankruptcy, the ti-ial of all issues of fact is claiming lands under grants of different States, or a
by jury.' By stipulation filed, the court may And the controversy between citizens of a State and foreign
facts in the nature of a general or special verdict,'* q. v. states, citizens, or subjects, in which the matter in dis-
This court has power to issue writs Of error to the pute exceeds, exclusive of interest and costs, the sum
district oom'ts on final judgments in civil cases at or value aforesaid, and shall have exclusive cogni-
common law. An appeal may be had to it from a final zance of all crimes and offenses cognizable under the
decree of a district court of equity, admiralty, or mari- authority of the United States, except as otherwise
time jurisdiction, except prize causes where the mat- provided by law, and concurrent jurisdiction with
ter in dispute exceeds the sum or value of fifty dollars, the district courts of the crimes and offenses cogni-
exclusive of costs; ^ the writ of error or appeal being zable by them. But no person shall be arrested in one
taken out within one year from the removal of any district for trial in another in any civil action before a
disability.* Provision is made for the removal of circuit or district court; and no civil suit shall be-
causes into this court when the district judge is dis- brought before either of said courts against any per-
qualified byinterest, etc.* The Courtis always open son by any original process of [or] proceeding in any
for interlocutory proceedings in equity caiises.^ The other district than that whereof he is an inhabitant;,
opinion of the presiding judge or justice prevails, in but where the jurisdiction is founded only on the fact
cases of difference;^ and in criminal proceedings, that the action is between citizens of different States^
upon request, the point of difference is to be certified suit shall be brought only in the district of the resi-
to the Supreme Court, but the cause may proceed, if dence of either the plaintiff or the defendant; nor
that can be done without prejudice to the merits.^ In shall any circuit or district court have cognizance of
cases of non-attendance of the judges, the marshal, or any suit except upon foreign bills of exchange, to re-
the clerk, may adjourn the court.® See Opinion, 3, cover the contents of any promissory note or other
Difference of. chose in action in favor of any assignee, or of any
Jurisdiction of writs of error in criminal cases com- subsequent holder of [it '] such instrument be pay-
prises sentences of imprisonment and fines in excess able to bearer and be not made by any corporation,
of $300. Within a. year thereafter, a petition to the unless such suit might have been prosecuted in such
circuit court for a writ of error may be presented; the court to recovei^ the said contents if no assignment or
writ, if allowed, to be accompanied with a bond to transfer had been made; and the circuit courts shall
prosecute the suit and abide the judgment i» also have appellate jurisdiction from the district
The circuit courts are co-ordinate tribunals, consti- courts, under the regulations and restrictions pre-
tuting asingle system, and the decision of any one of scribed by law.
them ought to be regarded as decisive of the question Sec. 2. That any suit of a civil nature, at law or in
involved, until otherwise determined by the Supreme equity, arising under the Constitution or laws of the
United States, or treaties made, or which shall be
Court. '1
* The act approved Starch 3, 1887 (24 St. L. 55S), pro- made, under their authority, of which the circuit
vides that the first section of the act of March 3, 1875 courts of the United States are given original jurisdic-
XlLiS St. L. 470), be amended to read as follows: tion by the preceding section, which may now be
** That the circuit courts of the TJiiited States shall pending, or which may hereafter be brought, in any
have original cognizance, concurrent with the courts State court, may be removed by the defendant or de-
of the several States, of all suits of a civil nature, at fendants therein to tlie circuit court of the United
common law or in equity, where the matter in dispute States for the proper district[ ;] any other suit of a civil
exceeds, exclusive of interest and costs, the sum or nature, at law or in equity, of which the eii-cuit courts
value of two thousand dollars, and arising under the of the United States are given jurisdiction by the pre-
Constitution or laws of the United States, or treatits ceding section, and which are now pending, or which
made, or which shall be made, under their authority, may hereafter be brought, in any State court, may be
or in which controversy the United States are plaint- removed into the circuit court of the United States for
iffs or petitioners, or in which there shall be a the proper district by the defendant or defendants,
controversy between citizens of different States, in therein being non-residents of that State; and when
which the matter in dispute exceeds, exclusive of in- in any suit mentioned in this section there shall be a
terest and costs, the sum or value aforesaid, or a controversy which is wholly between citizens of dif-
ferent States, and which can be fully determined as
iU.S.§648; ISup. E. S. p. 173; 100U.S.203. between them, then either one or more of the defend-
"E. S. § 649; 12 WaU. 275; 19 id. 81; 101 U. S. 569; 80 ants actually interested in such controversy may re-
Blatch. 366. move said suit into the circuit court of the United
= H. S. §§ 631, 633, 636: Acts and cases. States for the proper district. And where a suit is
« E. S. § 635: Act 1 June, 1872. now pending, or may be hereafter brought, in any
«Bi. S. § 637: several Acts. State court, in which there is a controversy between a.
« E. S. § 638: several Acts. citizen of the State hi wliich the suit is brought and a
' E. S. § 650; Act 1 June, 1872.
citizen of another State, any defendant, being such citi-
» E. S. § 651: Act 1 June, 1872.
zen of another State, may remove such suit into the cir-
» E. S. §§ 671-72: several Acts. cuit court of the United States for the proper disitrict,
'» Act 3 March, 1870: 20 St. L. 374.
at any time before the trial thereof, when it shall be
"Welles V. Oregon E. & N. Co., 8 Saw. 613 (1883); 1
Flip. 388. 1 Newgass v. New Orleans, 33 F. E. 196 (1888).
 COURT
COURT 282

made to appear to said circuit coiirt that from preju- or value of two thousand dollars, exclusive of interest
dice or local influence he will not be able to obtain and costs, the sum or value being made to appear, one
justice in such State court, or in any other State court or more of the plaintiffs or defendants, before the
to which the said defendant may, under the laws of trial, may state to the court, and make affidavit if the
the State, have the right, on account of such prejudice court require it, that he or they claim and shall rely
or local influence, to remove said cause ; Provided, upon a right or title to the land under a grant from a
That if it further appear that said suit can be fully State, and produce the original grant, or an exemplifi- ,
and justly determined as to the other defendants in cation of it, except where the, loss of public records
the State court, without being affected by such preju- shall put it out of his or their power, and shall move
dice or local influence, and that no party to the suit that any one or more of the adverse party inform the
will be prejudiced by a separation of the parties, said court whether he or they claim a right or title to the
circuit court may direct the suit to be remap,ded, so laild under a grant from some other State, the party
far as relates to such other defendants, to the State or parties so required shall give such information, or
court, to be proceeded with therein. At any time be- othei*wise not be allowed to plead such grant or give
fore the trial of any suit which is now pending in any -it iu evidence upon the trial ; and if he or they inform
circuit court or may hereafter be entered therein, and that he or they do claim under such grant, any one or
which has been removed to said court from a State more of the party moving for such information may
court on the affidavit of any party plaintiff that he had then, on petition and bond, as hereinbefore mentioned
reason to believe and did believe that, from prejudice in this act, remove the cause for trial to the circuit
or local influence, he was unable to obtain justice in coiu-t of the United States next to be holden in such
district; and any one of either party removing the
said State co'urt, the ch:cuit court shall, oh application
of the other party, examine into the truth of said affi- cause shall not be allowed to plead or give evidence of
•davit and the grounds thereof, and, unless it shall ap- any other title than that by him or them stated as
pear to the satisfaction of said court that said party aforesaid as the ground of his or their claim.
will not be able to obtain justice in such State court, Sec. 2. That whenever in any cause pending in any
it shall cause the same to he remanded i thereto. com-t of the United States there shall be a receiver or
Whenever any cause shall be removed from any State manager in possession of any property such receiver
court into any circuit court of the United States, and or manager shall manage and operate such property
the circuit court shall decide that the cause was im- according to the requirements of the valid laws of the
properly removed, and order the same to be remanded State in which such property shall be situated in the
to the State court from whence it came, such remand same manner the owner or possessor thereof would
shall be immediately carried into execution, and no be bound to do if in possession thereof. Any receiver
appeal or writ of error from the decision of the circuit or manager who shall willfully violate the provisions
court so remanding such cause shall be allowed. of this section shall be deemed guilty of a misde-
That section 3 of said act shall read as follows: meanor, and shall on conviction thereof be pimished
Sec. 3. That whenever any party entitled to remove by a fine not exceeding three thousand dollars, or by *
any suit mentioned in the nest preceding section, ex- imprisonment not exceeding one year, or by both said
cept in such cases as are provided for in the last punishments, in the discretion of the court.
clause of said section, may desire to remove such suit Sec. 3. That every receiver or manager of any
frpm a State court to the circuit court of tlje United property appointed by any court of the United States
States, he may make and file a petition in such suit in may be sued in respect of any act or transaction of his
such State court at the time, or any time before the in can*ying on the business connected with such prop-
■defendant is required by the laws of the State or the erty, without the previous leave of the court in which
rule of the State court in which such suit is brought such receiver or manager was appointed; but such
to answer or plead to the declaration or complaint of suit shall be subject to the general equity jiu-isdiction
the plaintiff, for the removal of such suit into the cir- of the court in which such receiver or manager was
cuit court to be held in the district where such suit is appointed, so far as the same shall be necessary to
pending, and shall make and file therewith a })ond, the ends of justice.
with good and sufficient surety, for his or their enter- Sec. 4. That all national hanking associations es-
ing in such circuit court, on the first day of its then tablished under the laws of the United States shall,
next session, a copy of the record in such suit, and for for the pm-poses of all actions by or against them, real,
paying all costs that may be awarded by the said cir- personal or mixed, and all suits in equity, be .deemed
cuit court if said court shall hold that such suit was citizens of the States in which they are respectively
wrongfully or improperly removed thereto, and also located; and in such cases thfe circuit and district
for their appearing and entering special bail in such courts shall not have jurisdiction other than such as
suit if special bail was originally requisite therein. It they would have in cases between individual citizens
shall then be the duty of the State court to accept of the same State.
said petition and bond, and proceed no further in such The provisions of this section shall not be held to
suit; and the said copy being entered as aforesaid in affect the jurisdiction of the com'ts of the United
said circuit court of the United States, the cause shall States in cases commenced by the United States or by
then proceed in the same manner, as if it had been direction of any officer thereof, or cases for winding
ori^nally commenced in the said circuit court; and if up the affau-s of any such bank.
in any action commenced in a State court the title of Sec. 5. That nothing in this act shall be held,
land be concerned, and the parties are citizens of the deemed, or construed to repeal or affect any jurisdic-
fiame State, and the matter in dispute exceed the sum tion or right mentioned either In sections 641, or, in 643,
 COURT 283 COURT

or in 648, or in 7-3*, or in title 24 ot the Revised Statutes A formal affidavit by the defendant that he believes
of tlie United States, or mentioned in section 8 of the that he cannot obtain justice because ot prejudice or
act of Congress of which this act is an amendment, or local influence is not sufficient: the tact must he shown
in the act of Congress approved Marcli 1st, 1875, en- by oral testimony or by affidavit. The affidavit may
titled "An act to protect all citizens in their civil or be filed in the State court and a certified copy be sent
to the circuit court.'
legal rights."
Sec. 6. That the last paragraph ot section 5 ot the Only when the court can plainly see that its juris-
act of Congress, approved March 3d, 1876, entitled diction isbeing fraudulently invoked wUl it deny the
** An act to determine the jmnsdiction of circuit courts privilege ot increasing the ad damnum by amend-
of the United States, and to regulate the removal of
causes from State courts, and for other purposes," The Supreme Court cannot review an order remand-
ment."
and section G40 of the Revised Statutes, and all laws ing a suit removed under the act ot 1887, begun, re-
and pai'ts of laws in conflict with the provisions of this moved, and remanded after that act went into effect."
act, be, and the same are hereby repealed: Provided, Nor has the court jurisdiction where the suit was
That this act shall not affect the jurisdiction over or removed before the approval ot that act, but not
disposition of any suit removed from the court of any remanded imtil thereafter;* nor where the order to
State, or suit commenced in any court of the United remand was made while the act of 1875 was in force,
States, before the passage hereof except as otherwise and the writ ot error not brought until after the pas-
expressly provided in this act. sage ot the act of 1887. UntU the act ot 1875 there
Sec. 7. That no person related to any justice or was no such jurisdiction; and the provision in that act
judge of any court of the United States by affinity or was repealed by the act ot 1887, without reservation as
consanguinity, within the degree ot first cousin, shall to pending cases, the proviso in the repealing section
hereafter be appointed by such court or judge to or having reference " only to the jurisdiction of the cir-
employed by such court or judge in any office or duty cuit court and the disposition of the suit on its merits."'
in any court ot which such justice or judge may be a See further Remove, 4.
member.' See Addenda. District courts of the United States.
Section 1 of the act ot March 3, 1887, does not
Eacb State consists of one or more ' ' districts "
apply in determining a question of jurisdiction on an for the convenient administration of United
application tor the removal of a cause.' States law. Each district has its " district
The circuit court cannot take cognizance of a suit
court " held by a resident judge.6
against a party in a district of which he is not a resi- The judge appoints a clerk of the court, with one or
dent. ^
more deputies.' A deputy may do any act permissible
"Before the act ot 1887, a controversy between citi-
zens of different States could be brought in any Federal in the clerk.'
court where the defendant could be served with pro- The court has jurisdiction over all admi-
cess. That act confines the plaintiff to the district of ralty and maritime causes, all proceedings in
which the defendant is an inhabitant, and that wherein
the plaintiff himself resides.* bankruptcy, and all penal and criminal mat-
In a case involving a single controversy, where the
ters cognizable under the laws of the United
States, exclusive jurisdiction over which is
jurisdiction depends upon citizenship, the right of re-
moval isgoverned by clause 2 of section 2 of the act not vested in the circuit or Supreme Court.
of 1887, and can be exercised only by non-resident de- More specifically, this jurisdiction com-
fendants. Clause 3 of that section, lilce clause 2 of
section 2 of the act of 1875, governs that class of cases prises :non-capital crimes committed within
the district or upon the high seas, except the
only where there are two or more controversies in-
volved in the same suit and one of them is wholly be- cases mentioned in Revised Statutes, Title
tween citizens of different States. Under the act of " Crimes," section 5413 ; cases of piracy, when
1887, the fight ot removal in the latter cases is limited no-circuit court is held in the district ; suits
to one or more of the defendants actually interested
in such separable controversy, and does not extend to for penalties and forfeitures, in general; suits
the plaintiff.* at common law brought by the United States
Section 2 of the act ot 1887, does not change the or any oflBcer thereof ; suits in equity to sub-
practice as to defendants seeking a removal on the ject realty to the payment of mternal revenue
ground of prejudice or local influence '
1 See acts ot 1877 and 1875 compared, 21 Am. Law ' Short V. Chicago, &c. R. Co., 33 F. E. 114 (1887).
Eev. 310-16 (1887). Brewer, J.
»Fales V. Chicago, &o. K. Co., 32 F. E. 679 (1887). ■' Davis V. Kansas City, &c. E. Co., 32 F. E. 863 (1887).
•County otTuba «. Pioneer Gold Mining Co., 32 s Morey v. Loclchart, 123 U. S. 56 (1887).
F. R. 183 (1887), Sawyer, J. Contra, ib. 675, 84. < Wilkinson v. Nebraska, 123 U. S. 286 (1888).
* Gavin u. Vance, 13 F. E. 85 (1887), Hammond, J. « Sherman v. Grinnell, 123 U. S. 679 (188T), Waite, C. J.
' Western Union Tel. Co. v. Brown, 32 F. E. 342 (18S7), » E. S. § 661 : various Acts.
Brewer, J.
' R S |§ 555, 658: various Acts.
« Hills V. Richmond, &c. R. Co., 33 F. R. 81 (1887), 213.8 Confiscation Cases, 20 Wall. Ill (1873). See 1 Woods.
Newman, J.
 COURT 284 COURT

tax ; suits for forfeitures or damages as debts Each Territory is divided into three districts, and a
due to the United States by Rev. St., section district court is to be held by a justice of the supreme
court as prescribed by law. Terms for causes in
3490 ; causes arising under the postal laws ; which the United States are not a party are held in
civil causes in admiralty and maritime law ; the coimties designated by the laws of the Territory.
some Offenses against civil rights — Rev. St., The supreme and district courts possess chancery and
Title XXIV ; suits by or against any national common-law powers. Eeview of a final decision in a
bank within the district ; suits by aliens for district court by the supreme court is regulated by the
torts in violation of the law of nations or of territorial legislature. The district courts have the
same jurisdiction. In cases arising under the Constitu-
a treaty ; certain suits against consuls or vice- tion and laws, as is vested in the Federal circuit and
consuls; and original bankruptcy proceed- district courts. A marshal and attorney are appointed
tpy the President and Senate; and a clerk, by each
ings.! supreme court judge in his district.
Trial of issues of fact, except in equity, admiralty
An appeal or WTit of error to the Supreme Court at
and maritime proceedings, is by jury.^ (See page Washington is allowed where the Constitution, an act
377, column 1, page 280, column 2.)
The time for holding the sessions of the various of Congress, or a treaty is brought in question. There
is also an appeal where the value in dispute exceeds
courts is provided for; ^ also, the circumstances under
which special terms may be held ; * also, adjourn- |1,000; except in Washington Territory, as to which
mente by the marshal; ^ and certifying cases into the this limit is §3,000.1
circuit court, in case of disability or disqualification in Justices of the peace are not given jurisdiction
where the title to land may be in dispute, or where
the district judge."* The judge of one district may be the claims exceed one hundred dollars. See further
designated to hold court in another district within the
Territory, 2.
same circuit.^ In cases of vacancy all processes are
to be continued to the next stated term after the quali- Supreme Court of the District of Co-
fication of a successor; except that in States having lumbia. This court, which may be em-
two or more districts the, judge of any such district
braced in the expression " courts of the
may hold court.*
Territorial courts of the United United States," 2 was established by the act
of March 3, 1863, consists of six justices ap-
States. The Territories are legislative gov- pointed by the President and the Senate,
ernments, and their courts legislative courts.
and has the same jurisdiction as circuit and
Congress, in the exercise of its powers in the
district courts, with cognizance in divorce
organization and government of the Territo- cases.
ries, combines the powers of both the Fed- Actions are maintainable against inhabitants of the
eral and State authorities.^ The phrase District, or persons foimd therein. It has common-
" courts of the United States " is sometimes law and chancery jurisdiction according to the laws of
iised to include these courts in the Territo- Maryland of May 3, 1802. It has appellate jurisdiction
from the police court of the District, from justices of
ries, but not so in the Constitution itself.'"
In Arizona the judicial power is vested in a supreme the peace in cases involving less than fifty dollai's, and
from the decisions of the commissioner of patents.*
court and such inferior courts as the legislative coun-
cil may provide. In the other organized Territories Any final judgment or decree, involving over S'3,600 in
value, may be re-examined in the Supi-eme Comt of
the power is vested in a supreme court, district courts, the United States; and so too, by special allowance, as
probate courts, and in justices of the peace. ^^ ' to cases involving a less amount, where the questions
The supreme court, which consists of a chief justice
of law are of great importance.*
and two associate justices, appointed for four years,
holds an annual term at the seat of government of the ,Court of Claims of the United States.
Territory. The court in which the United States con-
sents to be sued.
' E. S. § 563: various Acts. Consists of a chief justice and four judges, ap-
' E. S. § 566: various Acts. pointed by the President and the Senate; holds an
' E. S. § 572: various Acts. annual session at Washington, beginning on the firet
* E. S. § 581 : various Acts. Monday in December. Members of Congress are for-
' E. S. § 583: various Acts. bidden to practice in the court. A quorum consists of
8E. S. §§587-^9,601:several Acts; 1 Gall. 338; 97 TJ. S. three judges; and the concurrence of three is neces-
146. sary to a judgment.^
' E. S. §§ 592-97: vaTious Acts.
"E. S. §§ 602-3: various Acts. > E. S. §§ 702, 706: various Acts, and cases.
» Scott V. Jones, 5 How. 374 (1847); Benner v. Potter, = Embry v. Palmer, 107 U. S. 9-10 (1882); NoeiT o.
9 id. 241 (1850). Brewer, 1 MacArthm-, 507 (1874).
i» pnited States v. Haskins, 3 Saw. 371 (1875); 1 Fla. ' See generally E. S., Index.
198. 'Act 25 Feb. 1879: 1 Supl. E. S. p. 149; E. S. § 706.
" E. S. § 1907: various Acts. . »E. S. §§ 1049-58: Act 23 June, 1874; 1 Ct. CI. 3 3.
 COURT 285 COURT

Its jurisdiction extends to all claims Orighially it was a court in name, for its power
ex-
founded upon any law of Congress, any reg- tended only to the preparation of bills to be submitted
to Congi-ess. In 1863 the number of judges was
ulation ofan executive department, any con- creased from three to five, its jurisdiction was en- in-
tract, express or implied, with the Govern- larged, and it was authorized to render final judgment,
ment to
; claims referred to it by either House subject to appeal to the Supreme Court and to an es-
of Congress; to set-offs, counter-claims, timate by the secretary of the treasury of the amount
claims for damages, and other claims on the required to pay each claimant. Congress repealed
this provision for an estimate — as inconsistent with
part of the United States against plaintiffs in the finality essential to judicial decisions; since which
said court. 1 time the court has exercised all the functions of »•
Its jurisdiGtion is limited to contracts. To consti- court. It is one of those ' ' inferior courts ' ' which Con-
tute an implied contract there must have been a con- gress may establish.'
sideration moving to the United States, or they must As at first organized, the court was an auditing
have received the money charged with a duty to pay board authorized to pass upon claims submitted to it,
it over, or the claimant must have had a lawful righb and to report to the secretary of the treasury. He
to it when received.^ submitted to Congress, for an appropriation, such
The court has no equitable jurisdiction.' confirmed claims as he approved, with no right of ap-
For torts committed by an officer or agent of the peal inthe claunant. The jurisdiction of the court has
United States, whether a remedy should be furnished, received frequent additions by the reference of eases
Congress has reserved for its own determination.* to it under special statutes, and by other changes in
The court may enter a judgment on a set-off against the general law; but the principle originally adopted
the claimant.^ of limiting its general jurisdiction to oases of con-
An alien may sue, provided the like right is ac- tract, remains."
corded an American citizen to prosecute claims Appeal lies from it to the Supreme Court in the ex-
against his government.' ercise of the general jurisdiction of the latter. And
The common-law rule which excludes interested an appeal taken before the right therefor has expired
parties as witnesses is observed; but, at the instance is not vacated by an appropriation by Congress of the
of the solicitor of the United States, a claimant may amount necessary to pay the judgment.'
be required to testify.' The act approved March 3, 1887 (24 St. L 605), pro-
The court may appoint commissioners to take tes- vides. That the court of claims shall have jurisdiction
timony.s to hear and determine the following matters:
Suits in this court are not suits at common law; First. All claims founded upon the Constitution of
hence, trial by jury is not a right in a claimant." the United States or any law of Congress, except for
The court has never felt bound by the strict rules pensions, or upon any regulation of an executive de-
of pleading incident to actions in courts of common partment, or upon any contract, express or implied,
law or in equity. It seeks to administer justice by with the government of the United States, or for dam-
simple and convenient forms, and makes such interloc- ages, liquidated or unliquidated, in cases not sounding
utory orders as will lead to the doing of complete in tort, in respect to which claims the party would be
justice without prolonged litigation. ' " entitled to redress against the United States either in a
The limitation of writs is six years after the claim court of law, equity, or admiralty if the United States
has accrued, with the usual allowance in cases of dis- were suable: Frovided, however, That nothing in this
abmty.i' section shall be construed as-giving to either of the
Prior to 1855 claimants were heard by Congress. courts herein mentioned, juzisdiction to hear and de-
This court was established, in that year, to relieve termine claims growing out of the late civil war, and
Congress, to protect the government by regular inves- commonly known as " war claims," or to hear and
tigation, and to benefit claimants by affording them a determine other claims, which have heretofore been
certain mode of examining and adjudicating claims. rejected, or reported on adversely by any court, de-
partment, or commission authorized to hear and de-
' E. S. § 1059: several Acts, and cases. termine the same.
^Knote V. United States, 95 U. S. 156 (1877). Second. All set-oflEs, counter-claims, claims for dam-
» Bonner v. United States, 9 Wall. 160 (1889). ages, whether liquidated or unliquidated, or other /
4Langford v. United States, 101 U. S. 344 (1879); demands whatsoever on the part of the government of
Nichols i;. United States, 7 Wall. 126 (1808); Gordon v. the United States against any claimant against the
United States, 2 id. 561 (1864); 8 id. 269. government in said com't: Frovided, That no suit
« R. S. § 1061. See 17 WaU. 209; 12 Ct. CI. 317.
• E. S. § 1068. See 6 Ct. CI. 171, 192; 9 id. 254; 11 Wall. ' United States v. Klein, 13 Wall. 144 (1871), Chase,
178. Chief Justice.
' E. S. §§ 1079-80. See United States v. Clark, 96 ' Langf ord v. United States, 101 U. S. 344-lS (1879),
U. S. 37 (1877). Miller, J. ; Gordon v. United States, 117 id. 69T (1864),
8E. S. §§1071,1080. Taney, C. J.; 1 Dev. Ct. CI. 41-53; 17 Ct. CI. 1^9: 7
' M'Eh-ath v. United States, 12 CL CI. 317 (1876). South. Law Eev. 781-811 (1882).
'"Brown v. District of Columbia, 17 Ct. CI. 310 (1881), 8 United States v. Jones, 119 U. S. 477 (1886), Waite,
cases.
C. J. Explains Gordon o. United States, and other
' 1 E. S. § 1069. See 107 U. S. 124. cases.
 COURT COURT
386

against the government of the United States, shall be file a petition, duly verified with the clerk of the re-
allowed under this act unless the same shall have been spective court having jurisdiction of the case, and in
brought within six years after the right accrued for the district where the plaintiff resides. Such petition
which the claim is made. shall set forth the full name and residence of the
Sec. 2. That the district courts of the United States plaintiff, the nature of his claim, and a succinct state-
shall have concurrent jurisdiction with the court of ment of the facts upon which the claim is based, the
claims as to all matters named in the preceding sec- money or any other thing claimed, or the damages
tion where the amount of the claim does not exceed
sought to be recovered and praying- the coiu't for a
one thousand dollars, and the circuit courts of the judgment or decree upon the facts and law.
United States shall have such concurrent jurisdiction Sec. 6. That the plaintiff shall cause a copy of his
in all cases where the amount of such claim exceeds petition filed under the preceding section to be served
one tjiousand dollars and does not exceed ten thou- upon the district attorney of the United States in the
sand dollars. All causes brought and tried under the district wherein suit is brought, and shall mail a copy
provisions of this act shall be tried by the court with- of the same, by registered letter, to the attorney-gen-
out a jury. eral of the United States, and shall thereupon cause to
Sec. 3. That whenever any person shall present his be filed with the clerk of the court wherein suit is in-
petition to the court of claims alleging that he is or stituted an affidavit of such service and the mailing of
has been indebted to the United States as an officer or such letter. It shall be the duty of the district attor-
agent thereof, or by virtue of any contract therewith, ney upon whom service of petition is made as afore-
or that he is the guarantor, or surety, or personal rep- said to appear and defend the interests of the govern-
resentative ofany officer, or agent, or contractor so ment in the suit, and within sixty days after the
indebted, or that he, or the person for whom he is service of ijetition upon him, unless the time should
such surety, guarantor, or personal representative be extended by order of the court made in the case, to
has held any office or agency under the United States, file a plea, answer, or demurrer on the part of the
or entered into any contract therewith, under which government, and to file a notice of any counter-claim,
it may be or has been claimed that an indebtedness to set-off, claim for damages, or other demand or defense
the United States has arisen and exists, and that he or whatsoever of the government in the premises: Pro-
the person he represents has applied to the proper de- vided, That should the district attorney neglect or re-
partment of the government requesting that the ac- fuse to file the plea, answer, demurrer, or defense, as
count of such office, agency, or indebtedness may be required, the plaintiff may proceed with the case
adjusted and settled, and that three years have elapsed under such rules as the court may adopt in the prem-
ffom the date of such application and said account ises; but the plaintiff shall not have judgment or de-
still remains unsettled and unadjusted, and that no crete for his claim, or any part thereof, unless he shall
suit upon the same has been brought by the United establish the same by proof satisfactory to the com-t.
States, said court shall, due notice first being given to Sec. 7. That it shall be the duty of the.coxn-t to
the head of said department and to the attorney- cause a written opinion to be filed in the cause, setting
general of the United States, proceed to hear the par- forth the specific findings by the court of the facts
ties and ascertain the amount, if any, due the United therein, and the conclusions of the court upon all
States on said account. The attorney-general shall questions of law involved in the case, and to render
represent the United States at the hearing of said judgment thereon. If the suit be in equity or admi-
cause. The court may postpone the same from time ralty, the court shall proceed with the same according
to time whenever justice shall require. The judgment to the rules of such courts.
of said court or of the Supreme Court of the United Sec. 8. That in the trial of any suit brought under
States, to which an appeal shall lie, as in other cases, any of the provisions of this act, no person shall be
as to the amount due, shall be binding and conclusive excluded as a witness because he is a party to or in-
upon the parties. The payment of such amount so terested in said suit; and any plaintiff or party in
found due by the court shall discharge such obliga- interest may be examined as a witness on the part of
tion. An action shall accrue to the United States the government.
against such principal, or surety, or representative to Section 1079 of the Revised Statutes is hereby re-
recover the amount so found due, which may be pealed. The provisions of section 1080 of the Revised
brought at any time within three years after the final Statutes shall apply to cases under this act.
judgment of said court. Unless suit shall be brought Sec. 9. That the plaintiff or the United States, in
within said time, such claim, and. the claim on the any suit brought under the provisions of this act shall
original indebtedness shall be forever barred. have the same rights of appeal or writ of error as are
Sec. 4. That the jurisdiction of the respective com-ts now reserved in the statutes of the United States in
of the United States proceeding under this act, includ- that behalf made, and upon the conditions and limita-
ing the right of exception and appeal, shall be gov- tions therein contained. The modes of procedure in
erned by the law now in force, in so far as the same claiming and perfecting an appeal or writ of error
is applicable and not inconsistent with the provisions shall conform in all respects, and as near as may be,
of this act; and the course of procedure shall be in to the statutes and rules of court governing appeals
accordance with the established rules of said respect- and writs of error in like causes.
ive courts, and of such additions and modifications Sec. 10. That when the findings of fact and the law
thereof as said courts may adopt. applicable thereto have been filed In any case as pr6-
Sec. 5. That the plaintiff in any suit brought under vided in section six of this act, and the judgment or
the provisions of the second section of this act shall decree is adverse to the government, it shall be the
 287 COVENANT
COURT

duty of the district attorney to transmit to the attor- bearing upon the question whether the bar of any
ney-general ofthe United States certifled copies of all statute of limitation should be removed or which shall
the papers filed in the cause, with a transcript of the be claimed to excuse the claimant for not having re-
testimony taken, the written findings of the court, and sorted to any established legal remedy.
his written opinion as to the same; whereupon the Sec. 15. If the government of the United States
attorney-general shall determine and direct whether shall put in issue the right of the plaintiff to recover
an appeal or writ of error shall be taken or not; and the court may, in its discretion, allow costs to the
when so directed the district attorney shall cause an prevailing party from the time of joining such issue.
appeal or writ of error to be perfected in accordance Such costs, however, shall include only what is act-
with the terms of the statutes and rules of practice ually incurred for witnesses, and for summoning the
governing the same; I^ovided^ That no appeal or same, and fees paid to the clerk of the court.
writ of error shall be allowed after six months from Sec. 16. That all laws and parts of laws inconsistent
the judgment or decree in such suit. From the date with this act are hereby repealed.
of such final judgment or decree interest shall be com- For additional information as to the powers and
puted thereon, at the rate of four per centum per practice of the United States courts see particular
annum, until the time when an appropriation is made terms, such as Admiralty; Bakkruptcy; Citizen;
for the payment of the judgment or decree. Comity; Constitution; Contempt, 1; Costs; Deposi-
Sec. 11. That the attorney-general shall report to tion; Discretion, 3- 5; Gown,1; Jurisdiction, 2; Law,
Congress, sind at the beginning of each sfession of Common, Supreme; Marshal, 1 (3); Procedure; Eb-
Congress, the suits under this act in which a final KOVAL, 8; Ees, 2; Staie, 3 (3); Suit, 3; Venue; Wit-
ness.
judgment or decree has been rendered giving the date
of each, and a statement of the costs taxed in each COURT-MAIlTIAIi. See Martial.
case. '
Sec. 12. That when any claim or matter may be
COURT- YARD. See Court, 1 ; Curti-
lage.
pending in any of the executive departments which
involves controverted questions of fact or law, the head COUSIIT. Sometimes means a cousin by-
of such department, with the consent of the claimant, marriage.
may transmit the same, with the vouchers, papers,
A similar usage obtains as to the words " nephew "
proofs, and documents pertaining thereto, to said and " niece." A person spealdng of another by his
court of claims, and the same shall be there proceeded name and relationship is likely to be most ac9urat6a3
in under such rules as the court may adopt. When to the name.' See Consanguinity.
the facts and conclusions of law shall have been f omid,
COVENANT.'' 1. A promise under seal :
the coiu-t shall report its findings to the department
by which it was transmitted. as, a covenant to pay rent. '
Sec. 13. That in every case which shall come be- May be used not in its limited, technical
fore the court of claims, or is now pending therein, sense of a promise evidenced by a sealed in-
under the provisions of an act entitled " An act to strument, but in the wider sense of any con-
afford assistance and relief to Congress and the execu-
tive departments in the investigation of claims and tract in general.*
Although words of proviso and condition may be
demands against the government," approved March 3, construed as words of covenant, if such be the appar-
1883, if it shall appear to the satisfaction of the court, ent intent and meaning of the parties, covenant will
upon the facts estabUshed, that it has jurisdiction
to render judgment or decree thereon under existing not arise unless it can be collected from the whole in-
strument that, on the part of the person sought to be
laws or under the provisions of this act, it shall pro-
ch j,rged, there was an agreement, or an engagement, to
ceed to do so, giving to either party such further op-
portunity for hearing as in its judgment justice shall do or not to do some particular act.*
A covenant or convention is a clause of
require, and report its proceedings therein to either
House of Congress or to the department by which the agreement in a deed, whereby either party
same was referred to said court.
may stipulate for the truth of certain facts,
Sec. 14. That whenever any bill, except for a pen- or bind himself to perform, or give, some-
sion, shall be pending in either House of Congress
provldmg for the payment of a claim against the thing to or for the other.' that he has
United States, legal or equitable, or for a grant, gift, Thus, the grantor of land may covenant
,
a right to convey, or for the grantee's quiet enjoymentor
or bounty to any person, the House in which such bill
or the like; the grantee may covenant to pay rent,
is pending may refer the same to the court of claims,
who shall proceed with the same in accordance with to keep the premises in repair," etc.
the provisions of the act approved March 3, 1883, 1 Cloak V. Hammond, 82 Law Times, 134, 97 (1886): 35
entitled an " Act to afford assistance and relief to Con- Alb. Law J. 66.
gress and the executive departments in the investiga- iiF. covenant, convenant, agreement: L. convenire,
tion of claims and demands against the government," to come together, agree.
and report to such House the facts in the case and the a [Greenleaf v. Allen, 127 Mass. 253 (1879).
amount, where the same can be liquidated, including lEiddle v. McKinney, 67 Tex. 32 (1886), Gaines, A. J.
any facts bearing upon the question whether there has 6 Hale V. Finch, 104 U. S. 868-69 (1881), cases, Har-
been delay or laches in presenting such claim or ap- lan, J.; 63 Tex. 226.
plying for Buch grant, gift, or bounty, and any facta • [2 Bl. Com. 304.
 COVENANT 388 COVENANT

Covenantor. He who makes a covenant. ent stipulations are not conditions, but each party has
Covenantee. He in whose favor a cove- a remedy by action for non-performance by the other,
nant is made. by showing performance on his own part.'
Whether a covenant is dependent or independent is
Express covenant. A covenant explic- determined, in each case, by the intention of the par-
itly stated in words. Implied covenant. ties as it appears on the instrument, and by the appli-
Such covenant as is inferred or imputed in cation of common sense; to which intention, when
once discovered, all technical forms of expression
law from words used.i
Express covenants are also called covenants in must give way.^
Mutual covenants. Covenants as to
deed; and implied covena,nts, covenants in law. Any
which the thing to be done by one party is
words, such as "Icovenant," "lagree," "Ibind my-
self," plainly showing: an intent to be bound, raise an the consideration of the thing to be done by
express covenant; while a covenant may be implied the other.
from the use of such words as " gi-ant," "bargain and When a specified thing is to be done by bne party as
sell," "give," " demise," ^ q. u the consideration of the thing to be done by the other
Joint covenant. A covenant that binds party, the covenants are mutual, and also dependent,
all the covenantors together as one person. if they are to be performed at the same time; and if,
Several covenant. Such as binds each by the terms or nature of the contract, one is first to
be performed as the condition of the obligation of the
covenantor separately. Joint and several
other, that which is first must be done or tendered be-
covenant. Binds all covenantors together, fore the party who is entitled to its performance can
or each singly. sustain a suit against the other party. If a day is
When the legal interest in a covenant and in the fixed for the performance of a mutual covenant, the
cause of action thereon is joint, the covenant is joint, party whose duty it is to perform or tender perform-
although in its terms it may be several, or joint and ance first must do it on that day, or show his readiness
several.^ See further Joint. to do it, else he cannot recover for non-performance
Dependent covenant. A covenant in by the other party. But both at common law and in
chancery there are exceptions, growing out of the
which the obligation for performance is con- nature of the thing to be done and the conduct of the
ditioned upon performance of another cove- parties. The case of part performance, possession,
nant, made prior or at the same . time. etc., in chancery, where time is not of the essence of '
Independent covenant. In this the duty the contract, or has been waived by acquiescence, is an
of performance rests solely upon the terms of example of the latter; and the case of contracts for
building houses, raUroads, etc., in which the means of
the covenant in itself considered, irrespective the builder and his labor become combined and affixed
of the performance or non-performance of to the soil, or mixed with materials and money of the
any other covenant. owner, afford examples at law.^
When mutual covenants go to the whole considera-
A "dependent covenant" rests upon the tion on both si(^s they are mutual conditions, the one
prior performance of some act or condition, precedent to the other; where they go to a part only,
and until the condition is performed the other a remedy lies on one cdvenant to recover damages
party is not liable to an action on his cove- ■dent.2
for a breach of it, but it is not a condition prece-
nant. Under an "independent covenant"
either party may recover damages from the Heal covenant. Such a covenant as
other for injuries received by a breach of the affects realty, binding it in the hands of the
covenants in his favor ; and it is no excuse for covenantor, his grantee or devisee. Per-
the defendant to allege a breach of covenants sonal covenant; A covenant obligatory
on the part of the plaintifiE.* upon the maker only, or to the extent of his
If the whole is to be performed on one side, before personalty.
anything else is to be done on the other side, the cove- If the covenantor covenants for himself and his
nants are dependent, and performance is a condition "heirs," his covenant is , real, and descends upon the
precedent. But if something is to be done one side, be- heirs, who are bound to perform it, provided they
fore the whole can be performed on the other, the cove- have assets by descent; if he covenants also for his
nants are independent. . . A dependent stipulation is
a condition, performance of which must be averred and 1 White V. Atkins, 8 Cush. 370 (1851), cases, Shaw, C. J. ;
proved in order to a recovery. Mutual and independ- Matthews v. Jenkins, 80 Va. 467-68 (1885), cases.
"Lowber v. Bangs, 2 Wall. 730 (1864), cases; Lewis v,
1 See Conrad v. Morehead, 89 N. 0. 84 (1883). Chisolm, 68 Ga. 44-46 (1883), cases; Neis v. Tecum, 16
= See 4 Kent, 468, 473. F. R. 170 (1883), cases; The Tornado, 108 U. S. 351 (1883);
. Cutter V. Powell, 3 Sm. L. C. 22-66, cases.
s Capen v. Barrows, 1 Gray, 379 (1854), cases, Me't-
calf, J. See Calvert ij. Bradley, 16 How. 696 (1883). s Phillips, &o. Construction Co. v. Seymom', 91 U. S.
* Bailey v. White, 3 Ala. 331 (1843), Collier, 0. J. 650 (1876), MUler, J.
 C6VENANT 289 COVENANT

" executors " and " administrators," both his personal to be performed at the same time with an-
and real assets stand pledged for the performance.' other; declaratory, limiting or directing a
A real covenant has for its object something an-
nexed to, or inherent in, or comieeted with, land or use; executed, performed, and opposed to ex-
other real property ; and runs with the land, so that ecutory, tobe performed in the future ; gen-
the grantee is invested with it, and may sue upon it eral, relating to lands generally and placing
for any breach happening in his time.' the covenantee in the position of a, specialty
Of covenants real the most important are creditor, and opposed to special, relating to
covenants for title, which assure the full en- particular land and giving the covenantee a
joyment of whatever the deed purports to lien thereon ; transitive, passing over to the
convey : the covenants — of seisin, of a right representatives of the maker, and opposed to
to convey, for quiet enjoyment, against in- intransitive, limited to the covenantor him-
cumbrances, for further assurance, and of self.
warranty, qq. v. In the United States they
A grantor, conveying by deed of bargain and sale,
are sometimes called " full covenants." ' by way of release or quitclaim of all his right and title
Other covenants relating to realty are : a to a tract of land, if made in good faith, without
covenant to convey ; against nuisances or a fraudulent representation, is not responsible for the
goodness of the title beyond the covenants in his deed.
particular use ; to renew a lease.^ He conveys nothing more than the estate of which
An article of agreement for the sale of land is a
he is possessed at the time; his deed does not pass
covenant to convey the land.* A covenant of a right an interest not then in existence. If the vendee has
to convey means that the covenantor has the capacity
contracted for a partipular estate, or for an estate in
and a right to transfer the land in question: the same
fee, he must take the precaution to secure himself by
as a covenant of seisin,* q. v. proper covenants of title. This principle is applicable
' A covenant " runs with the land " when either the to a deed of bargain and sale by release or quitclaim,
liability to perform it, that is, its burden, or the right
in the strict sense of that species of conveyance. M the
to take advantage of it, that is, its benefit, passes to
deed bears on its face evidence that the grantor in-
the assignee of the land.' tended to convey and that the grantee expected to
Covenants running with the land are : those annexed
become invested with an estate of a particular de-
tp tile estate, such as the ancient warranty, now rep-
resented bythe usual covenants of title; and those scription or quality, and that the bargain had pro-
ceeded upon that footing, then, although it may not
which are attached to the land itself, such as the
contain covenants of title in the technical sense, still
rights of common or easements. Species of the latter
the legal effect of the instrument will be as binding
«lass, to be enforceable against the assignees of the
upon the grantor in respect to the estate thus de-
covenantor, must "touch and concern" or "extend scribed as if a formal covenant to ttiat effect had been
to the support of " the land conveyed.* inserted; at least so far as to estop him from ever
On covenants to stand seized to uses, see Use, 3.
afterward denying that he was seized of the particular
Other terms by which covenants are dis- estate at the time of conveyance, i
tinguished are : affirmative, that a thing has In the absence of a recital estopping the grantor as
been or shall be done, and opposed to nega- to the character of his title or the quantum of interest
to be conveyed, a covenant of general warranty, where
tive, not to do a thing ; alternative or dis- the estate conveyed is the present interest of the
junctive, affording an election between grantor, does not operate as an estoppel to pass a title
things to be done ; auxiliary, relating to an-
subsequently acquired. =
other covenant as the principal, and dis- 2. An action, or a form of action, at com-
charged with it; collateral, connected with mon law to recover damages for the breach
a gi-ant, but not relating immediately to the of a contract under seal.
thing, and opposed to inherent, affecting the A covenant to do or to omit a direct act is a species
particular property immediately ; concurrent, of express contract, the breach of which is a civil in-
jury. The remedy for any disadvantage or loss is by
' 2 Bl. Com. 304.
a writ of covenant, which directs the sheriff to com-
= Davis V. Lyman, 6 Conn. 255 (1886), Hosmer, C. J. mand the defendant generally to keep his covenant
• Eawle, Gov. Title, 24-3T, 318. with the plaintiff or to show good cause to the con-
* See 4 Kent, 473. trary. If the defendant continues refractory, or the
'See Espy v. Anderson, 14 Pa. 308 (1850); 11 111. 194; covenant is already so broken that it cannot be specif-
19 Ohio, 347; 4 Md. 498; 19 Barb. 639. ically performed, the subsequent proceedings set forth
» 2 Wash. E. P. 648; 10 Me. 91; 10 Cush. 134. with precision the covenant, the breach, and the loss
' Savage v. Mason, 3 Cush. 505 (1&49); Shaber v. St.
Paul Water Co., 15 Eep. 339 (1883); Spencer's Case, 1 1 Van Rennselaer v. Kearney, II How. 322-23 (1850),
Sm. L. C. * 120-83, cases. cases. Nelson, J.
«Norcros8 v. James, 140 Mass. 189 (1885), oases, SHanrick v. Patrick, 119 IT. S. 175-76 (1888), cases,
Holmes, J. : 25 Am. Law Beg. 64.
Matthews, J. ; Eawle, Cov. Tit. 393.
(19)
 CREDIBLE
COVER 290

which has happened thereby; whereupon the jury wUl Covinous. Collusive, fraudulent.
give damages in proportion to the injury sustained.^ An example is where a tenant for life or tail secretly
Performance of a condition precedent (g. v.)^ if conspires with anothe* that he shall recover the land
there is any such condition, must he averred.^ held by such tenant to the prejudice of the reversioner.
" Debt " will lie where the damages are liquidated. COW. See Animal; Ceueltt, 3.
Under the plea of non est factum (he did not make A distinction between cow and heifer may or may
it), the defendant may show any fact contradicting
the making of the instrument ; as, personal incapacity, not be intended in penal statutes,' and in a statute ex-
or that the deed was fraudulent, was not executed by empting acow from sale on execution.^ See Heifer.
all the parties, or was not delivered. CB. Criminal; crown.
In Pennsylvania the defendant may plead " cove- CRAFT. See Vessel.
nants performed with leave, etc.," that is, with leave, CRANK. Has no necessary defamatory
after notice to the plaintlCE, to offer in evidence any- meaning, any more than to say of one that
thing that amounts to a lawful defense. ' " Covenants he is capricious or subject to vagaries or
performed, absque hoc " (without this) admits the ex-
ecution, but puts the plaintiff to proof of performance. whims. 3
. . " Covenants performed, "although in substance Does not necessarily imply that a man has been
& denial of the breach alleged, is au affirmative plea, guilty of a crime, nor tend to subject him to ridicule
and does not put the execution of the instriunent in or contempt. If the word has such import it should
issue. " Absque hoc " puts in issue the performance at least be averred and proven.'
on the part of the plaintiff as alleged by him. " With CRAVE. See Oyer.
leave, etc.," implies an equitable defense^ such as CREATE. See Charter, 3.
arises out of special circumstances, which the defend-
ant intimates he means to offer in evidence.^
CRiEDIBLE.'' 1. Worthy of belief; de-
serving of confidence. See Credit, 1.
See Condition; Contract; Factum, Non est; Pos-
sibility; Provided; Seizin; Warranty, 1. 3. Entitled to be heard as a witness ; com-
COVER. SeeCovEET; DISCOVERY. petent. Competent to give evidence, and
COVERT.* 1. Covered, protected : as, a worthy of belief.
pound covert. See Pound, 2. The English statute as to the execution of wills
3. Implied, inferred : as, a covert condition. prior to 1838 required witnesses to be " credible." This
was held to mean such persons as were not disquali-
3. Under the disability of marriage ; mar- fied from giving testimony by imbecility, interest, or
ried. Discovert. Unmai-ried, whether
said of a widow or of a spinster. This rule has been followed in Connecticut, Ken-
crime.*
tucky, Massachusetts, Mississippi, South Carolina,
Covert baron. A wife: under the pro-
and several other States.*
tection of her husband or baron,* q. v. As used in a statute requiring that a will disposing
Feme covert. A married woman : under of realty shall be attested by credible witnesses, is
the wing, protection or cover of her hus- equivalent to competent; not as meaning, in the loose
band. * popular sense, a person of good moral character and
Coverture. The condition of a woman reputation in fact, and personally worthy of belief,
but a person entitled to be examined in a court of jus-
during marriage. Discoverture. Not tice, though subject to have his actual credit weighed
subject to the disability of being married. and considered by the court or jury; and to be exam-
Used as pleas in abatement, g. u, and in speaking ined upon the question whether the will was duly exe-
of the rights and liabilities of married women gener- cuted, and by a person of disposing mind.^
ally. See further Disability; Feme, Covert; Husband.
Credibility. Being entitled to be be-
COVIN'.'' "A contrivance between two lieved ;w^orthiness of belief.
to defraud or cheat a third." ' In deciding upon the credibility of a witness it is
' ' A secret assent determined in the hearts usual to inqiure whether he is capable of knowing a
of two or more to the prejudice of another." ^
1 King 1). Cook, 1 Leach, Cr. C. 123 (1774) ; 2 East, P. O.
1 3 Bl. Com. 156-B7. 616.
= 1 Chitty, PI. 116. ^ Carruth v. Grassie, 11 Gray, 211 (1858); Pomeroy o.
■ Farmers', &c. Turnpike Co. v. McCuUough, 25 Pa.
304 (1855); 4 Dall. 439; 5 Pa. 189; 8 id. 372; 25 id. 303; Trimper,
» Walker8 Allen, 400 (1864).
v. Chicago ' Co., 39 F. E. 827 (1887),
Tribune
S8 id. 75; 70 id. 194 ; 79 id. 336 ; 96 id. 239-40. See Act 25 Blodgett, J.
May, 1887: P. L. 271. < L. credere, to believe, trust; also, to lend.
* Kiiv'-ert. F. covrir, to cover. • 1 Jarman, Wills, 124.
= [1 Bl. Com. 442. » Fuller V. Fuller, 83 Ky. 350 (1885), cases,
' F. couvenir, to agree, covenant. ' [Haven v. HUliard, 23 Pick. 18 (1839), Shaw, C. J.;
' Mix v. Muzzy, 28 Conn. 191 (1859): Ld. EUenboroiigh. Amory v. Fellows, 6 Mass. *228 (1809), Parsons, 0. J.;
« Ciirdlestone v. Brighton Aquarium, 3 Ex. Div. 142 Jones V. Larrabee, 47 Me. 476 (1860), Appleton, J. ; 38
(1878): Termes de la Ley (1708, 17131). Md. 424 ; 26 Conn. 416 ; 18 Ga. 40 ; 58 N. H. 8 ; 14 Tex. Ap. 72.
 CREDIT 391 CREDIT

t'ling, and the particular thing, thoroughly; whether Credit, bill of. " No State . . shall
he was actually present; what attention he gave to emit Bills of Credit," i that is, issue paper
the occurrence; and whether he honestly relates the in-
affair as he remembers it.' tended tocirculate through the community,
Credibility depends upon veracity and capacity to for its ordinary purposes as money, and re-
observe." Literal comcidence of oral statements may deemable ata future day.s
affordground for suspicion.s Affirmative testimony A paper issued by the sovereign power,
is the strongest.* When the credit due to witnesses is
equal, preponderance is to be given to number." Cred- containing a pledge of faith, and designed to
circulate as money. 3
ibility isforthe Jury." See further Chakacteb; Com-
petency; Impeach, 8; Witness. The term may cover certificates of indebtedness,
CREDIT. 1. In its primary sense, as a bearing interest; 2 but not bills of a bank chartered by
a State, even though the State be the sole stockholder,"
noun and a verb, imports reliance upon some- nor, even if it pledges its credit for their payment, in
thing said or done as the truth: belief or case the bank fails to redeem them.*
faith in testimony. Credit, letter of. A letter written by
Discredit. To diminish the reliance to one merchant or correspondent to another re-
be placed upon testimony on any account questing him to credit the bearer with a sum
whatever, and not necessarily for want of of money. 5 See Letter, 3, Of credit.
veracity in a person or for want of genuine- Mutual credits. In laws of set-off, " a
ness in a document. Compare Impeach, 3 ; knowledge on both sides of an existing debt
Infamy.
due to one party, and a credit by the other
General credit. The general credit of a party, founded on and trusting to such debt,
witness is his character as a credit-worthy as a means of discharging it." « See Ac-
man. Particular credit. Credit as a wit- counts, Mutual ; Debts, Mutual.
ness in a particular action.' See Credible. ' Creditor. In a strict literal sense, he
2. The capacity of being trusted.^ who voluntarily trusts or gives credit to an-
The trust reposed in an individual, by those other, upon bond, bill, note, book, or simple
who deal with him, that he is able to meet contract, for money or other property. In a
his engagements.' liberal sense, he who has a legal demand for
In an enlarged commercial sense, implies money or other property which has come to
reputation and confidence ; a basis 'on which the hands of another, without the consent of
the possessor may trade without immediate the former, but by mistake or accident, and
payment.'" to the payment or possession of which, or to
The term also comprehends what is due to compensation in damages therefor, he is en-
another person; and, again, time given in titled upon the ground of an implied promise.
which to pay for a thing bought. In a still more general sense, he who has a
Credit is, strictly, a benefit as a means to procure right by law to demand and recover of an-
property, and is not in itself recognized as property.
Its whole office is to obtain trust. It is available to other a sum of money on any account what-
another by gift, sale, etc. Given gratuitously, it is i
loan; given for a consideration, a sale of credit." Not simply a person to whom a debt is
ever.'
Every contract for labor, not paid for in advance, is due, but a person to whom any obligation is
a contract upon credit; because the labor, when once
performed, cannot be recalled. It is otherwise where due, — the last not being the usual meaning.8
property is to be paid for on delivery, for a delivery ^ Constitution, Art. I, sec. 10, cl. 1.
need not be made.^^ ' Craig V. Missouri, 4 Pet. 431 (1830), Marshall, C. J.
'Briscoe v. Bank of Kentucky, 11 Pet. 314 (1837),
1 See 1 Greenl. Ev. §§ 2, 49, 431 ; 3 BI. Com. 369. McLean, J.
» 1 Whart. Ev. § 404. * Darrington v. Bank of Alabama, 13 How. 16 (1851).
' 1 Whart. Ev. § 413. See Legal Tender Case, 110 U. S. 443 (1883); Virginia
<lWhart. Ev. §415. Coupon Cases, 114 id. 283 (1885); 2 Story, Const §§ 1362-
• 1 Whart. Ev. § 416. 64; 4 Kent, 408.
• 1 Whart. Ev. §§ 391, 417. "Mechanics' Bank v. N. Y. & New Haven E. Co., 4
' Bemis v. Kyle, 5 Abb. Pr. 233 (1867), Duer, 586 (1855): MoCulloch's Commercial Diet.
'Dry Dock Bank v. American Ins. Co., 3 N. T. 356 •2 Story, Eq. § 1435; Munger u. Albany City Nat.
(1830). Bank, 85 N. Y. 590 (1681), Folger, C. J.
» [Owen V. Branch Bank at MobUe, 3 Ala. 867 (1842). ' [Stanley v. Ogden, 2 Root, 201 (1795).]
■« [Eindge v. Judson, 24 N. Y. 71 (1861). 8 [New Jersey Ins. Co. v. Meeker, 37 N. J. L. 300
" Ketchum v. City of Buffalo, 14 N. Y. 365 (1856). (1875), Beasley, C. J.
 CREDIT 293 CREDIT-MOBILIER

One who has the right to require the ful- Subsequent or future creditors; existing
fillment ofan obligation or contract.' Com- creditors; prior creditors. See Assign ; Con-
pare Debtor. veyance, Fraudulent; Receivee; Stock,
The term may merely designate a person. Thus,
although the relation of debtor and creditor has been 3 (3) ; Suffer.
Creditor's bill. A bill in equity filed by
dissolved, the person who was the " debtor " in a con- one or more creditors of a deceased person
tract for usurious interest may testify against him
who was the " creditor." ^
for an account of the assets and a settlement
No one, unsolicited, may make himself the creditor of the estate of the decedent.
of another.' See Negotiable. A single creditor may file his bill for payment of his
Domestic creditor. A creditor resident own debt, and seek a recovery of assets for this pur-
pose only. But the more usual course is for one or
within the county or the State of the debt-
more creditors to file a bill by and on behalf of him-
or's domicil, or where his property is situ- self or themselves, and all other creditors who shall
ated. Foreign creditor. One who resides come under the decree, for an account of the assets,
within another jurisdiction.* and a due settlement of the estate. The principle is
Execution creditor. A creditor who has that as equality is equity the assets should be distrib-
uted without that preference allowed at common law.
obtained a levy upon property belonging to
his debtor. The usual decree is, quod coynputet; that the master
take the accounts between the deceased and all his
■ Existing creditor. A person who becomes creditors; and an account of all the personal estate of
the ci'editor of another after the latter has the deceased In the hands of the executor or adminis-
made an invalid transfer of his property, trator:, the same to be applied in payment of the debts
and other charges, in a due course of administration.
and before the invalidity has been removed.s Thereafter, a creditor may not carry on a suit at law
General creditors, or creditors at large. except as the coiui; of equity may allow. ^
Creditors of an insolvent whose claims are to Such a bUl lies for a discovery of assets. The court
be satisfied pro rata out of any balance left will proceed to a final decree on the merits. The
after the claims of secured or favored cred- usual decree is for an account; but where the repre-
sentative of the deceased admits assets, the decree is
itors have been paid.
for immediate payment."
Judgment creditor. He whose claim! has It Is no doubt generally true that a creditor's bill,
been merged into a judgment against his to subject his debtor's interests in property to the
payment of the debt, must show that all remedy at
debtor, and under which, generally, execu- law had been exhausted. And, generally, it must be
tion may be had. averred that judgment has been recovered for the
Junior creditor. A person who becomes a debt, that execution has been issued, and that it has
creditor after some other has become a cred- been returned nulla bona. The reason is, until such
a showing is made, it does not appear, in most cases,
itor; also termed a "younger," "later," or that resort to a court of equity is necessary, in other
"subsequent" creditor, and particularly used words that the creditor is remediless at law. But a
with reference to the validity of the liens of fruitless execution is not necessary to show that the
judgment creditors. creditor has no adequate legal remedy. Thus, when
Lien creditor. A creditor who has for evi- the debtor's estate is a mere equitable one, which can-
dence of his claim a judgment, mortgage, or not be reached by any proceeding at law, there is no
reason for requiring attempts to reach it by legal
other lien regularly entered of record.
. Preferred creditor. A creditor who the In Illinois a creditor's bill is defined to be a bill by
processes.^
law, or the debtor, has directed shall be paid which a creditor seeks to satisfy his debt out of some
before others. See Pbeper, 2. equitable estate of the defendant which is not liable
Secured creditor. A creditor who has the to a levy and sale under an execution at law.*
possession of, or a lien upon, property of his CREDIT-MOBILIEB.s A company or
debtor, as security for the payment of his bank formed for advancing money on per-
claim. Opposed, unsecured creditor. sonal eistate, generally with the declared ob-
> 1 Story, Eq. §§ 546^9; Richmond v. Irons, 121 tJ. S.
1 Hardy v. Norfolk Manuf. Co., 60 Va. 423 (1885), 44 (1867), cases.
Lacy, J. 2 Kennedy «. Creswell, 101 V. S. 646-46 (1879), cases.
2 Gififord V. Whitoomb, 9 Cush. 483 (1862), cases, Bige- ' Case V. Beauregard, 101 U. S. 690-91 (1679), cases,
Strong, J.
low, J. ; 28 Minn. 153.
s Gurnee v. Bausemer, 80 Va. 872 (1885), cases. « Newman v. Willetts, 52 111. 98 (1869) : Chancery Code,
* On enjoining creditors frona proceeding in a for-
eign jurisdiction, see 23 Cent. Law J. 268 (188(i), cases. §§ ^36-37.
ICi*a'-de-mo-b6-le-a'. F. w^dii, credit; mobiliei',
'McAfee V. Busby, 69 Iowa, 331 (1886); 38 id. 215. movable, personal: L, mobilis, movable.
 CREW 293
CRIME

jeetof promoting industrial enterprises, such a public wrong. Distinguished from a pri-
as the construction of railways, the sinking vate wrong, which is a civil injury or tort.l
of mines, and the like.i Crime and misdemeanor are synonymous terms;
CHEW. See Revolt ; Ship. though, in common usage, " crimes " denotes such of-
fenses as are of a deeper and more atrocious dye;
Whenever, in a statute, the words "master" and while smaller faults, and omissions of less conse-
" crew " occur in connection with each other, " crew " quence, are comprised under the gentler name of
embraces all the officers as well as the common sea-
" misdemeanors." ' See Misdemeanor, 8,
men — the ship's company; as, in the act of March 3,
1835, § 3, which punishes cruelty by a master or other In short, the term "crime" embraces any and
officer, toward the crew,* every indictable offense. '^
CKIiEiIl. One who proclaims: an officer Yet it is not synonymous with " felony." '
Capital crime. A crime punishable with
of a court whose duty it Is to announce the death. See Punishment, Capital.
opening and adjournment of the court; to
High crime. Used, with no definite
call the names of suitors, jurors, and wit- meaning, in prosecutions by impeachment;
nesses; to proclaim that the acknowledg- merely serves to give greater solemnity to
ment of a sheriff's deed is about to be taken, the charge.
or a special return received of the distribu- High crimes and misdemeanors are such immoral
tion made of the proceeds of a sale by the and unlawful acts as are nearly allied and equal in
sheriff; and to make various other procla- guilt to felony, yet, owing to some technical circum-
stance, do not fall within the definition o^ felony.*
mations ofa public nature, undel' the direc-
Infamous crime. Offenses which ren-
tions of the judges of the court. ^
On the assembling of the Supi-eme Court the proc- dered the perpetrator infamous at common
lamation made by the marshal is in these words: law were treason, felony, and the crimen
" The honorable the chief justice and associate justices falsiJ> See further Infamy.
of the Supreme Court of the United States. Oyez! Statutory crime. An act which has
oyezi oyez! all persons having business before the been made a criminal offense by enactment
honorable, the Supreme Court of the United States,
are admonished to draw near and give their attention, of a legislature. Common-law crime, or
for the court is now sitting. God save the United crime at common law. Any indictable
States and this honorable Court." offense at common law.
" Let the cryer make proclamation and say, O yes, All offenses against the government of the United
O yes, O yes. Silence is commanded in the Court, States are of statutory origin: no common-law offense
While the Justices are sitting, upon pain of imprison- can be committed against it.» See Law, Common.
ment. After sUence is Commanded, The Cryer shall Crimes may be classified as offenses against the
make a proclamation saying: All manner of persons sovereignty of the state; against the public — peace,
that have anything to doe, at this Court, Draw Nigh health, justice, trade, policy, property; against the
and give your attendance, and if any person shall lives and persons of individuals; agamst private prop-
have any Complaint to enter, or suit to prosecute. Let erty; against the currency, and public and private
them Draw near, and they shall be heard." « securities; against religion, decency, and morality;
GRIM. CON. See Conversation, 1. against the law of nations, qq. v.
CRIME. An act committed or omitted Established principles are: That the trial of all
n of a public law either forbidding crimes, except in cases of impeachment, shall be by ,
in violatio
or commanding it.5 See Crimen. jury, and m the State where the same was committed;
but when not committed within any State, the trial
A wrong of which the law takes cogni- shall be at such place as Congress may have directed.'
zance as injurious to the public, and pun- No person shall be held to answer for a capital, or
ishes in what is called a criminal proceeding otherwise infamous crime, unless on presentment or
the
or Indictment of a grand jury, nor be subject for
prosecuted by the State in its own name
the name of the people or the soverei gn." 1 [4B1. Com. 5; 3 id. 2.
in
A crime is a breach and violation of the = See People v. Police Commissioners, 39 Hun, 610
public rights and duties due to the
whole (1886)- 7 Conn. 18.5; 00 111. 168; 3 J N. J. L. 144; 9 W^nd.
511; 2
community in its social aggregate capacity; ai2; 9 Tex. 340; 24 How. 102; 26 Vt. 208; 41 id.
N. Y. Rev. St. 70, § 22.
3 County of Lehigh i-. Schock, 113 Pa. 379 (1886).
Russ. Cr. 61.
1 [Worcester's Diet. •State uKnapp, 6 Conn. 417(1H27): 1
2 United States v. Winn, 3 Sumn. 212 (1838), Story, J. See Const. Art. II, sec. 4; 21 How. 102.
» See R. S. § T15. s PeoDle V. Toynbee, 20 Barb. 189 (1835).
i Laws of Province of Penn. (1683): Linn, 128. e United States v. Britton, 108 U. S. 206 (1883);
United
= 4 Bl. Com. 5.
States I'. Walsh, 5 Dill, qo (1878).
0 Be Bergin. 31 Wis. 386 (1872). See 1 Bish. Cr. L. § 32. ' See Constitution, Art. Ill, sec. 3, cl. 3.
 CRIMEN
CEIME
294

same offense to be twice put in jeopardy of life and A witness cannot be compelled to answer a ques-
limb; nor be compelled in any criminal case to be a tion which may expose him to a penalty or punish-
witness against himself, nor be deprived of life, lib- ment.' A statement made under compulsion cannot
erty, or property without due process of law.' In all be used to show guilt: confessions (g. u) are to be free
criminal prosecutions the accused shall enjoy the and voluntary, 2 But a party cannot claim this privi-
right of a speedy and public trial by an impartial lege. The danger to prosecution must be real. Ex-
jury of the State and district wherein the crime shall posure to civil liability, or to police prosecution, will
have been committed, which district shall have been not excuse. The court determines as to the reason-
previously ascertained by law, and to be informed of ableness ofthe objection. Waiver of part of the privi-
the nature and cause of the accusation; to be con- lege waives all. Pardon and statutes of indemnity do
fronted with the witnesses against him; to have com- away with protection. ^
pulsory process for obtaining witnesses in his favor, If an accused person offers himself as a, witness in
and to have the assistance of counsel for his defense. ^ his own behalf to disprove the charge he thereby
No ea: post facto law shall be passed — by Congress or waives his privilege as to all matters connected with
by any State.' the offense.*
The foregoing principles restrict the power |0f the An accused may be cross-questioned as to whether
United States government, and do not affect State he has not been convicted of other charges of crime.*
legislation. But the same principles, expressed in A party on trial for violating an election law who
identically or substantially the same language, are testifies that he did not write names unlawfully en-
also found in the constitutions of the States, as part tered in a registration book may be compelled, on
o{ the rights which are declared to be excepted out of cross-examination, to write the names in the presence
the general powers of government, and not delegated of the jury, as evidence in rebuttal.*
to the law-efiacting department. Exoriminate. To free from a charge or
See in detail the names of particular crimes; also
suspicion of crime; to exculpate. Whence
Accessary; Accident; Aid, 3; Attempt; Bail, 2; excriminatory.
Cause, 2; Character; Commit, 3; Compact, Social;
Compound, 4; Confession, 2; Confront; Convict; Incriminate. To charge with crime; to
Costs; Damages; Deceit, 2; Decoy; Degree, 3; De- natory. criminate; to inculpate. Whence incrimi-
liiBERATioN, 3; Drunkenness; Duel; Doubt, Reason-
able; Equity; Evidence; Extradition; Factum, Ex
Recriminate. To charge crime back upon
post; Felony; Fine, 2; Forfeiture; Guilty; Igno-
rance; Indictment; Infamy; Innocent, 3; Insanity, an accuser; particularly, for the respond-
2 (6); Intent; Jeopardy; Jury, Trial; Merger, 3; ent in divorce proceedings to acknowledge
Obscene; Pardon; Police,- 3, 3; Premeditate; Pre- the offense charged and to make a counter-
sent, 1; Process, 1; Punish; Ratification; Revolt;
Reward, 1; Sentence; Waiver; Will, 1; Witness; accusation against the libelant. Whence re-
Wrong. Compare Crimen; Delictum. crimination, recriminative, recriminatory.
Recrimination as a bar to divorce is not limited to
Criminal. 1, adj. Involving the com- a charge of the same nature as that alleged in the
mission ofan oflEense against the public ; also, libel. It is sufficient if the counter-charge is a cause
pertaining to the law upon the subject of pub- for divorce of equal grade. Thus, in Massachusetts, a
lic wrongs or crimes. Opposed to civil, q. v. respondent charged with adultery may reply that the
libelant was at the time serving a sentence in the State
As, criminal or a criminal — act, action,
case, contempt, conversation, court, infor-
CBIMEN. L. A crime, a fault; literally,
mation, intent, jurisdiction, law, libel, of- prison.'
a judicial decision, or that which is subjected
fense, procedure, process, prosecution, qq. v.
to a judicial decision ; an accusation of wrong.
3, n. A person who has committed an in-
dictable oflEense against the public. Compaj-e ' 1 Greenl. Ev. § 4S1.
Convict, 2.
2 Emery's Case, 107 Mass. 180 (1871); United States v.
Criminate. To exhibit evidence of the H-escott, 3 Dill. 405 (1872); 1 Den. Cr. Cas. 336.
commission of an indictable offense ; to show = See United States v. M'Carthy, 18 F. R. 87 (1883);
or prove to be guilty of crime. Youngs V. Youngs, 5 Redf. 506, 509-11 0882), cases;
Exp. Reynolds, 30 Ch. D, 394 (1883); 1 Whart. Ev.
No person *' shall be compelled in any Criminal
§§ 633^0; 8 Crim. Law Mag. 313. That com-t to decide,
Case to be a witness against himself." * see also Sxp. Stice, 70 Cal. 63 (1886).
* Spies et al. v. People, 132 111. 235 (1887); Whart. Cr.
' See Constitution, Amd. V. Ev. § 433. .
2 See Constitution, Amd. VI. * State V. Pfeflerle, 36 Kan. 92-96 (1886), cases: 35
3 See Constitution, Art. I. sec. 9, cl. 3; sec. 10, par. 1. Alb. Law J. 63.
As to criminal jurisdiction in the Federal coui'ts see "UnitedJ. States v. MuUaney, 33 F. E. 370 (1887),
Brewer,
under Courts, United States, and 36 Am. Law Reg.
703-9 (1887), cases. ' Mon-ison v. Morrison, 143 Mass. 362 (1886), cases;
Handy v. Handy, 124 id. 395 (1878), cases.
* Constitution,' Amd. V,
 CRIMINAL S95 CROP

Crimen falsi. The crime of deceiving or the lease depends upon an uncertainty, as,
some one, or an act of God.i the life of
falsifying. At common law, any offense in-
But now, generally, where the lease ends in
volving falsehood, and which might inju- the
sprmg, the tenant has the crop of winter grain
sown
riously affect the administration of justice by the autumn before; and the straw is part of
See Emblements. the crop.
the introduction of falsehood and fraud, i
The exact extent and meaning of the expression is Growing crop. Any annual crop raised
nowhere stated with precision. In the Roman law it by cultivation.
included every species o£ fraud and deceit.' In some States, regarded as personalty, and leviable
Offenses Included, at common law, are; forgery, with a right to harvest it; in a few States, realty.
perjury, subornation of perjury, suppression of testi- Whether a contract for the sale of a growing crop
mony by bribery or by conspn^cy to procure the non-
attendance of witnesses, conspiracy to accuse an is for "an interest in or concerning lands," to be in
writing under the Statute of Frauds, seems to be an-
innocent person of crime, barratry, counterfeiting swered inconformity with the intention of the parties.
money or an official seal, making or dealing by false
And so as to growing grass, growmg trees, and fruits;
weights or measures, falsification of records. To this
although, according to some cases, emblements only
list others have been added by statute. are to be considered as chattels, while the spontaneous
The effect of a conviction for a crime of this class growth of the land remains a part of it, at least, until
is infamy, 3 q, v.
i-ipe and ready for removal. Whenever the parties
Crimen Isesse majestatis. The crime of connect the land and its growth together the growth
wounding majesty : treason, q. v. comes within the statute. '
Flagrans crimen. A crime being com- " The lien of a mortgage on a growmg crop contm-
ues on the crop after severance, whether remaining
mitted. Flagrante orimine. While a tfrim-
in its original state or converted into another product,
inal act is being committed; literally, a so long as the same remains on the land of the mort-
crime in its very heat. ga or. '' Such lien is not lost by a tortious removal by
Locus criminis. The place of a crime — a person having constructive notice of the lien; and
where committed. the mortgagee may maintam an action for the con-
Partieeps criminis. One who takes part version. ^
Outstanding crop. A crop in the field —
' in a crime ; an accomplice. See Particeps.
not gathered and housed, without regard to
CRIMLNAL; CRIMINATE. See under
Crime, p. 294. its state. It is "outstanding" from the day
it commences to grow until gathered and
criticism:, see Review, 3.
taken away. 4 See Fair ; Harvest.
CROP. That which is cropped, cut, or
Cropper. One who, having no interest in
gathered ; 3 the valuable part of what is the land, works it in consideration of receiv-
planted in the earth ; fruit ; harvest. Com-
ing a portion of the crop for his labor.*
pare Cultivation ; Fructus.
One hired to work land and to be compen-
Crop-time. That portion of the year
sated by a share of the produce.*
which is occupied in making and gathering He has no estate in the land; his possession is that
the crops.* of the landlord, who must divide off to the cropper
Aivay-going crop. A crop sown by a his share of the crops. A " tenant " has an estate in
tenant who will be no longer tenant at har- the land, and a right of property in the crops. Until
division, the right of property and of possession in
vest-timethat
; is, a crop which is sown be-
the whole crop is the tenant s.'
fore but ripens after the end of the tenant's Where the contract is that the land-owner shall give
term. the cropper a part of the produce after paying all ad-
Where the term of a tenant for years depends upon vances, and the crop has been divided, the cropper is
a certainty, as if he holds from midsummer for ten not a tenant, but a mere employee ; the ownership of
years, and in the last year he sows a crop, which is the entire crop is in the land-Owner, and if the cropper
not cut before the end of his term, the landlord shall
have the crop; for the tenant knew the expiration of 1 2 Bl. Com. 145.
his term, and it was his own folly to sow what he could s 3 Pars. Contr. 31 ; 3 Kent, 477; 4 id. 73; 1 Wash. E. P.,
never reap the profit of. Otherwise, however, where 4 ed. p. 9; 3 Bl. Com. 10; Freeman, Exec. 113, cases;
Benj. Sales, 120; 69 Tex. 637.
' [1 Greenl. Ev. § .373. See also Barbour v. Common- s Wilson V. Prouty, 70 Cal. 197 (1886); Cal. Civ. Code,
wealth, 80 Va. 888 (1885).
' See United States v. Block, 4 Saw. 212-13 (1877), * SuUins V. State, 53 Ala. 476 (1875), Brlckell, C. J.
§ 2972.
cases; Barker v. People, 20 Johns. *460 (1823); Webb v. 5 [Frye v. Jones, 2 Eawle, *12 (1829).
State, 29 Ohio St. 358 (1876). » Steel V. Frick, 56 Pa. 175 (1867); Adams v. McKes-
» [Webster's Diet. son, 53 id. 83 (1866).
o Martin v. Caiapman, 6 Port. 351 (Ala., 1838). ' HaiTison v. Eioks, 71 N. C. 10 (1874), eases.
 CROSS 396 CRUELTY

forcibly, or against consent, takes tlie crop from tlie generally physical ; immoderate, unrestrained
possession of tlie owner, the taking constitutes lar- chastisement; violence; inhuman conduct.
ceny, robbery, or other offense, according to the cir- Not usually employed in speaking of a battery,
cumstances.' Se Distress, 4, 5. malicious mischief, mayhem, or other like act with
CROSS. 1, V. To intersect, q. v. respect to which the parties are viewed as members of
Crossing. Before a person enters upon a railroad ■ the community; but in cases where they sustain a.
crossing he must use aU his senses, take all the pre- special relation, as, that of husband and wife, parent
caution he reasonably can, to ascertain that he may and child, guardian and ward, teacher and pupil.
cross in safety.^ 1. Cruelty as between Husband and Wife.
Cross-'walk. See Sidewalk.
Such cruelty as causes injury to life, limb,
2, n. (1) A mark, instead of his name,
or health, or creates danger of such in-
made by a person who cannot write, or is
jury, or a reasonable apprehension of such
disabled from writing. See Signature.
(3) The character x is sometimes used to
Actual1 personal violence or the reasonable
danger.
Indicate " cross-examination." ^
apprehension of it ; such course of treatment
3, adj. In the inverse order ; counter ; made
as endangers life or health, and renders co-
by the opposite party.
Applied to things which are connected in The last definition, habitation unsafe.^which accords with the present
subject-matter, but run counter to each doctrine of the English courts,^ has been frequently
other.*
As, a cross — action, appeal, bill, demand, Anything that tends to bodily harm and
approved.*
error, examination or question, interroga- thus renders cohabitation unsafe ; or, as ex-
tory, remainder, qq. v. pressed inthe older decisions, that involves
CEOWN. Tlie sovereign; the royal danger of life, limb, or health.^
power; also, that which concerns or pertains Not, mere austerity of tempet*, petulance of man-
ner, rudeness of language, want of civil attention and
to the ruling power — the king or queen. accommodation, or even occasional sallies of passion
In use, similar to our terms State, Com- that do not threaten harm, — which merely wound the
monwealth, Government, People.^ feelings without being accompanied by bodily injury
Cro'wn case. A criminal prosecution. or actual menace. ^
Crown debt. A debt due to the govern- Extreme cruelty. Any conduct, in one
ment. of the married parties, which furnishes rea-
Crown law. Criminal law. sonable apprehension that the continuance of
Crown office, or side, the criminal side ^cohabitation would be attended with bodily
of the court of King's or Queen's bench. harm to the other.'
Crown paper. A list of criminal cases It is now generally held that any unjustifiable con-
duct, on the part of either the husband or the wife,
awaiting hearing or decision.
which so grievously wounds the mental feelings or so
Crown pleas, or pleas of the crown. destroys the peace of mind as to seriously impair the
Criminal causes. Opposed, common pleas: bodily health or endanger the life, or such as in any
civil actions between subject and subject. other manner endangers the life, or such as destroys
The king, in whom centers the inajesty of the whole the legitimate objects of matrimony, constitutes " ex-
people, is the person supposed to be injured by every treme cruelty " under statutes, although no personal
infraction of public rights, and is the proper prose- or physical violence be inflicted or even threatened.'
cutor." See KiHO. Compare Indignity. See Divorce.
CmrEL. See Cetjelty ; Punishment.
CBUELTY. Ill-treatment; maltreat- 1 [Bailey v. Bailey, 97 Mass. 378 (1867), cases. Chap-
man, J.; Peabody v. Peabody, lOiid. 197 (1870).
ment; abuse; unnecessary infliction of pain,
2 [Butler V. Butler, 1 Pars. Eq. Cas. 344, 339-44 (Pa.,-
1849), cases. King, J.
s Gordon v. Gordon, 48 Pa. 238(1865), Strong, J.
1 Parrish v. Commonwealth, 81 Va. 1, 7, 12 (1884), 1 Jones V. Jones, 66 Pa. 498 (1871), Agnew, J.; May V.
cases; Taylor, Landl. & T. 21. See also Hammock v, May, 62 id. 210-11 (1869); 76 id. 357.
Creekmore, 48 Ark. 265 (1886). 'Latham v. Latham, 30 Gratt. 321 (Va., 1878), Sta-
2 Ormsbee v. Boston, &c. E. Co., 14 E. 1. 103-8
cases. ples, J.
« Morris D. Morris, 14 Cal. *79 (1859), Cope, J.
s 18 S. C, 60-61. ' Carpenter v. Carpenter, 30 Kan. 744 (1883), cases,
* [Abbott's Law Diet. Valentine, J. See also Holyoke v. Holyoke, 78 Me.
» See 106 U. S. 208. 410-11 0886), cases; Powelson v. Powelson, 22 Cal. 361
«4B1. Com. 2; 3 id. 40. (1863); generally, 19 Ala. 307; 36 Ga. 296; 88 lU. 248; 67
 CEUELTY 397
CRUELTY

2. Cruelty to Children. Inordinate chas- The distinction is between the infliction of

tisement ofchildren of tender years — under such chastisement as is necessary for the
fourteen. training or discipline by which animals are
Beginning with New York in 1875 (under the act of made useful, and the beating or needless in-
April 21, of that year), societies for the prevention of
cruelty to children have been very generally formed.
fliction ofpain which is dictated by a cruel
These societies, by statute, are authorized to prosecute disposition, by violent passions, a spirit of
persons who maltreat children, or employ them at revenge, or reckless indifference to the suffer-
hard labor in mines, mills, and factories, beyond a ings of others. 1
certain number of hours a day, or who sell or employ In the statute of 12 and 13 Vict. (1849) c. 92, cruelty
their services as acrobats or as beggars, or as servants means the unnecessaiy abuse of any animal -U domes-
about drinking saloons, places of low amusements, tic bird or quadi-uped;^ and in 45 Vict. (1881) c. 712,
houses of prostitution, and like resorts. Abuses which the intentional infliction upon any animal of pain that
hid been characterized as misdemeanors are thus, in in its kind, degree, object or circumstances, is unrea^
sonable.
effect, brought -n-lthin the category of acts of cruelty.'
3. Cruelty to Animals. The infliction of Under 12 and 13 Vict. c. 93, § S, dishorning cattle is
pain upon dumb animals, without just cause. not an offense, the operation bemg skillfully per-
Until within recent years ill-usage of a dumb ani- formed.'
la the New York act of 1874, c. 12, § 8, cruelty in-
mal was viewed merely as a wrong to the owner's
property; no degree of iU- treatment amounted to a cludes every act, omission, or neglect whereby unjus-
tifiable physical pain, suffering, or death is caused or
misdemeanor unless so inhuman as to shock, and, in-
directly, todemoralize beholders: in which case the permitted.
act became indictable as a public nuisance.^ By the California act of 1874 cruelty includes every
The present view is that, for its own sake, all sen- act, omission, or neglect whereby unnecessary or un-
tient life is to be protected from the wanton and un- mitted. justifiable physical pain or suffering is caused or per-
necessary infliction of pain.'*
To protect animals from cruelty, societies, similar The Penns.vlvania act of 1869 forbids wantonly or
in scope and power to those for children, have been cruelly ill-treating, overloading, beating, or otherwise
organized in the United States and Europe. abusing any animal, or being interested in any place
Under the Great Law of the Province of Pennsyl- kept tor the purpose of flghting or baiting any bull,
bear, dog, cock, or other creature.
vania, ordained in 1683, those who frequented " such
rude and riotous sports and practices as . . bull- In the Arkansas act of 1879 " needlessly killing " an.
baitings, cock-fightings, with such like . . shall animal refers to an act done without any useful mo-
be reputed and fined as breakers of the peace, and tive, in a spirit of wanton cruelty, or for the mere pleas-
ure of destruction.*
suffer at least ten days' imprisonment at hard labor in The Tennessee statute of 1881 is designed to protect
the house of correction, or forfeit twenty shillings." * animals from willful or wanton abuse, neglect, or cruel
Severe pain inflicted for tlie mere purpose
treatment; not froni the incidental pain or suffering-
of causing pain or of indulging vindictive that may be casually or incidentally inflicted by the
passion is "cruel;" and so is pain inflicted use of lawful means of protection against particular
without justifiable cause, but with reason-
animals.^
Letting loose a captive fox to be hunted (and which
able cause to know that it is produced by
is captured) by dogs is cruelty, within Mass. Pub. Sts. c.
wanton or reckless conduct.^ 207, § 53. There is nothing in the general purpose of the
" Cruelty " includes both the willfulness and cruel statute that prevents it from including all animals,
temper of mind with which the act is done and the whether wild and noxious or tame and useful, within
pain inflicted. An act merely accidental, or not giv-
the common meaning of the word " animal." The
ing pain, is not cruel in the ordinary sense.* statute does not define an offense against the rights of
property in animals, nor against the rights of the ani-
Ind. 568; 10 Iowa, 133; 13 id. 266; 52 id. 611; 18 Kan. mals protected by it, but against public morals, which
371, 419; 24 Mich. 482; 26 id. 417; -37 id. 604; 40 id. 493; the commission of cruel and barbarous acts tends to
45 id. 151; 49 id. 417; 56 id. 643; 8 N. H. 315; 58 id. 144; corrupt.' See Malice; Maim, 3; Needless; Toktuke;
24 N. J. E. 338; 30 id. 119, 215; 73 N. Y. 369; 14 Tex. 356; Wanton; Wound.
50 Wis. 254; 26 Alb. L. J. 83.
■ See Delafield Children (1876); Washington Humane 1 [State V. Avery, 44 N. H. 394 (1863), Bellows. J.
Society Act, 13 Feb. 1885: 23 St. L. 302. ' Bridge v. Parsons, 3 Best & S. 383 (1803): 33 Law J.
2 United States v. Jackson, 4 Cranch, C. C. 483 (1834); 95. See Bates v. M'Cormick, 9 Law T. E. 175 (1803);
Grise v. State, 37 Ark. 458 (1881). Morrow's Case, 9 Pitts. Law J. 80 (1879).
'State 1'. Avery, 44 N. H. 394 (1862). > Callaghan u. Society for Prevention of Cruelty, 37
*Laws of Prov. of Pehn. Ch. XXVI; Linn, 114.
Eng. E. 813 (1885), cases: 16 Cox's Cr. Cas. 101.
5 Commonwealth v. Lufkin, 7 Allen, 581 4 Grise V. State, 37 Ark. 466 (1881).
Hoar, J. » Hodge V. State, 11 Lea, 632 (1883). See also E. S.
'Commonwealth v. MoCleUan, 101 Mass. 35 Wis. § 4445.
Chapman, C. J. » Commonwealth v. Turner, 145 Mass. 300 (1887).
 CRUISE 298 CUM

The Massaolusetts Society for the Prevention of culpa. Slight negligence.i Compare De-
Cruelty to Animals is a " charity." There is no pecun- lictum; Dolus.
iary benefit in it for any of its members; its work in Whence exculpatory, inculpatory, exculpation.
the education of mankind in the proper treatment of
domestic animals is instruction in a duty incumbent Culpabilis. Guilty. Won culpatailis.
on us as human beings. Its hospital for animals, if
Not guilty.
established by a bequest or other gift, would be treated Non culpabilis was abbreviated upon the
as a charity. It has o, humane, legal, and public or
minutes " non cul." To this plea the clerk,
general purpose; and, whether expressed or not in the on behalf of the sovereign, replied that the
Statute of 43 Elizabeth, comes within the equity of
that statute. . . An institution is both benevolent prisoner was guilty, as he was ready to prove.
and charitable which educates men in the diseases of The formula for this reply was cul. prit.,
the domestic animals, and the proper means of deal- i. e., culpabilis, partus verificare,^
ing with them, even if it also inculcates the duty of Whence " culprit." But that word may come from
kindness and humanity to them, and provides appro- mlped, which is from culpe, to charge with a crime; •
priate means of discharg^g it.^ or it may be a^corruption of culpate^ an accused per-
Common carriers, by land or water, from one State
to another, may not confine cattle, sheep, swine, or The expression non cul et de hoc, still
son.*
other animals, for a longer period than twenty-eight used in the records of a few criminal courts
consecutive hours, without unloading them for rest,
of general jurisdiction, is an abridgment of
water, and feeding, for at least five consecutive hours,
uhless prevented from unloading by storm or other the sentence non culpabilis et de hoc seponit
accidental cause. The hours in transit on connecting supra Deum et patriam, not guilty and of
roads are to be taken into the account. If such un- this he puts himself upon God and his coun-
loaded animals are not properly fed and watered try. See Aeeaign ; Culpable.
by their owner, the transpoi-ter shall care for them, CULPABLE. Censurable; criminal. See
£iad have a lien for the service. Willful failm'e to Culpa.
comply with the foregoing provisions exposes the
offender to a penalty of §100 to §500. An exception is Applied to an omission to preserve the means of
made in favor of cars and boats in which the animals enforcing a right, " censurable " is more nearly an
have proper food, water, space, and opportunity to equivalent than ''criminal."'' See Negligence, Cul-
rest. Penalties are recoverable by civil action in the
name of the United States, in the circuit or district CULTIVATIOTf. See Agriculture;
pable.
court held within the district where the violation was Betterment; Crop; Improve.
committed, or the person or corporation resides or Being in a state of cultivation is the converse of
carries on business. ^ being in a state of nature. Whenever lands have been
The lien is enforceable by petition filed in the dis- wrought with a view to the production of a crop they
trict court within the district where it attached, or the
Hiust be considered as becoming and continuing in " a
owner or custodian of the property resides. The court state of cultivation " until abandoned for every pur-
is to issue process suited to the case for the collection pose of agriculture and designedly permitted to re-
of the debt, costs, penalties, and charges.? vert to a condition similar to the original one."
CRUISE. Any voyage for a given pur- " Fit for cultivation " refers to that condition of soil
pose. Imports a definite place, as well as which will enable a farmer, with a reasonable amount
of skill, to raise regularly and annually by tillage
time of commencement and termination.''
grain or other staple crops.^
CRY. See Auction; Ceieii; Pais.
CULVERT. A water-way or passage,
CUCKING-STOOL. See Scold.
whether of wood or stone, square or arched.^
CUILIBET. See Ars, Cuilibet, etc.
CUM. L. With, together with; along
CUJUS. See Solum, Cujus, etc. with ; in connection with ; wholly.
CUL DE SAC. Fr. The bottom of a In compounding words, the m remains Before 6, p,
bag. A street open at one end; a blind m; assimilates before i, n, r; changes into n before
alley. other consonants; is rejected before a vowel or h.
CULPA. L. A fault; negligence; guilt.
Lata culpa. Gross negligence. Levis ' Jones, Baihn. 8; Story, Bailm. § 18; 8 Barb. 378; 34
La. An. 1129:
culpa. Ordinary negligence. Levissima
2 4 Bl. Com. 339; 6 Cal. 232; 8 Sumn. 67.
3 Webster's Diet.
1 Massachusetts Society, &c. v. Boston, 142 Mass. 87- « Skeat's Etym. Diet.
23 (1886), Devens, J. " Waltham Bank v. Wright, 8 Allen, 188 (1864).
2 Act 3 March, 1873: E. S. §§ 4386-89. ' Johnson v. Perley, 2 N. H. 57 (1819).
s Act 27 Feb. 1877: E. S. § 4390. ' Keeran v. GrifSth, 34 Cal. 581 (1868); 13 Ired. L. 37;
29 Kan. 596.
4 [The Brutus, 2 Gall. 526, 539, 268 (1815); Marsh. Ins.
196, 199, 520. « Oursler v. Baltimore, &c. B. Co., 60 Md. 367 (
 CUMULATIVE
299 CURRENT

Designates a being or bringing together of Formal defects in pleading are cured by pleading
over without demurrer.'
several objects; also, completeness, perfec- A verdict cures a detective statement of a title or
tion of an act, — intensifies the signification cause of action." See Aid, 2; Bad, 2; Certainty.
of the simple word. See Con, 1.
Curallle. Admitting of remedy or recti-
Cum copula. With connection ; with in- fication. Incurable. Said of ambiguities,
tercourse.
defects in pleading, defects in powers, etc.
A promise to marry in the future, cum copula, did
Curative. Designed to correct an error
not, at common law, constitute a valid marriage; or defect.
otherwise, for some purposes, by the canon law.'
As, an act passed to relieve from some hardship or
Cum onere. With the charge or incum- inconvenience caused by the careless use of language
brance. See further Onus, Cum, etc. in a former statute.
Cum. testamento amiexo. With the An invalid public contract may be confirmed and
will attached. See Administer, 4. made binding by curative statutes.'
CUMUIiATIVE.2 More of the same CURED-MEAT. Was given the mean-
kind ; superadded to other of the same nat- ing at the residence (Memphis, Tenn.) of a

ui-e; additional. purchaser, when that differed from the mean-

As, a cumulative or cumulative — evidence ing at the residence (Atchison, Kan.) of the
or testimony, legacy, offense, remedy, sen-
tence or judgment, statute, voting, qq. v. CURIA. L. A court of justice ; a court,
seller.*
CUR. See Curia. or the court. Compare Foeum.
CURABLE. See Cure, 3. Curia advisari vult. Tlie court desires

CURATOR. L. A guardian ; a com- to deliberate — over the matter : the court re-
mittee, q. V. serves its decision, for the present. Abbreyi-
ated cur. ad. vult., and c. a. v.
The guardian of the estate of a wai'd, as
Originally, an entry upon the record of a cause,
distinguished from the guardian of his per-
just argued, indicating that a decision would be ren-
son.' dered by and by. Later, it denoted a suspension of
Curator ad hoe. A guardian for this — judgment
fully. untU the court could examine the matter
special purpose.
Curator ad litem. A guardian for the
Curia regis. The king's court.
suit ; a guardian ad litem, q. v. Per curiam. By the court.
A formula by which a judge may express the assent
CURE.* 1. In the original sense of taking
of the court to a thing asked, or by which a court may
care or charge of, instead of the later sense
make any order whatever.
of healing, is used in the sea-law which re- Prefixed to a decision, may imply that the law in
the case is too well settled to require either argument
quires that a seaman is to be "cured" at
the expense of the ship of sickness,or injury or Rectus
elucidation.'
in curia. Right (unimpeached) in
sustained in the ship's service, to the end of
the voyage.5 court, or before a court.
The condition of a person who stands before a court
The obligation to "cure," as the old cases say, or with no charge of misconduct preferred against him,
to give " medical treatment," as the later cases term or cleared or purged of a charge.
it, continues only to the end of the particular voyage.' See midcr Actus; Amicos; Cnnscs.
2. To remedy, correct, remove.
CURRENT.* 1. Now running or pass-
Want of authority in an agent is cured by the prin-
cipal when he adopts the agent's act. ing; now present; now being created or re-
A general appearance cures antecedent irregularity ceived existing
; in present time.
of process, a defective service, etc.' As, a current — account, balance, earnings,
motion, value, year, qq. v.
'Cheney v. Arnold, 15 N. T. 345 (1857); 2 Pars. 1 United States v. Noelke, 17 Blatch. 569, 661 (1880).
Contr. 79. 2 Lincoln Township v. Cambria Iron Co., 103 U. S.
' L. (mmulus, a heap. 415 (1880) ; 7 How. ?dl ; 53 Ind. 288 ; 87 id. 37; 3 Monta. 452.
8 Duncan v. Crook, 49 Mo. 117 (1871); 21 Pa. 333; 1 Bl. > Eandall v. Kreiger, 23 Wall. 147 (1874), cases; Eitchie
Com. 460. •„. Franklin County, 23 id. 75 (1874). ^
* L. cura, care, charge. < Treadwell v. Anglo-American Packing Co., 13 F. E.
»See Beed v. Canfleld, 1 Sumn. S02 (1833); The City
22 (1882). And see Featherston v. Eounsaville, 73 Oa.
of Alexandria, 17 F. E. 393-95 (1883), cases. 617 (1884).
• The John B. Lyon, 33 F. B. 187 (1887), Blodgett, J. « Letzkus V. Butler, 69 Pa. 261 (1871).
' Creighton v. Kerr, 20 Wall. 12 (1873). » L. cun-ere, to run, flow, move.
 CURRENT 300 CURTESY

3. Circulating as money; received as nor currency. National bank-notes, although not legal
tender, are as much currency as treasury notes, which
money ; lavcful as m.oney.
are legal tender. Therefore, a certificate of deposit
Current funds. Current money ; par funds,
promising repayment " in currency " may be deemed
or money circulating without any discount. negotiable, — it is payable in money.*
A bill of exchange drawn for "current funds" en- In an indictment, the words " of the currency cur-
titles the holder to coin or its equivalent.* rent " are equivalent to " current as money." ^ See
Gold, silver, or anything equivalent thereto, Par, 2; Tender, 2, Legal.
CURSE. See Blasphemy.
'and convertible at pleasure into the same. 2 CURSUS. L. A running: way, mode,
" In current funds," as used in a bank-check, means
in money; and the insertion of the words does not im- practice. See De, Cursu.
pair negotiability.'
Cursus CTirisB lex eurise. The practice
Commencing with the first issue in this country of
notes declared to have the quality of legal tender, it
of a court is the law of the court.
has been a -common practice for makers of commer- Established, inveterate practice will be adhered to:
cial bills, checks, and notes, to indicate whether the it is supposed to be based upon principles of justice
same are to be paid in gold or silver, or in such notes; and public convenience. But a court of error does
not generally notice the practice of another court. In
and the term " current funds " has been used to desig-
nate any of these, all being current and declared to be short, every court, especially every court of equity,
legal tender. It was Intended to cover whatever was makes its own practice.^ Compare Error, 1, Com-
munis.
receivable and current by law as money, whether in
the form of notes or coin.' CURTESY.* 1. Where a man marries a
Current money. - Money received as such woman seized of an estate of .an inheritance
in common business transactions ; the com- (that is, of land and tenements in fee-simple
mon medium in barter and exchange.* or fee-tail), and has by her issue, born alive,
Current notes. Bank-notes convertible capable of inheriting the estate, on her
into specie, or redeemable in gold, silver, or death he holds the land for life as tenant by"
an equivalent.5 the curtesy of England.*
Current price or value. See Value. An estate by the curtesy is the interest to
Currenoy. Primarily, a passing or flow- which the husband is entitled upon the death
ing — something which passes from hand to of the wife, in the lands or tenements of
hand. In monetary affairs, not necessarily which she was seized in possession, in fee-
cash; it is equally applicable to anything simple or in tail, during their coverture, pro-
used as a circulating medium, and generally vided they had lawful issue, born alive which
accepted as a representative of values of might by possibility inherit the estate as heir
property.6 to the wife. 6
Bank-notes, or other paper money, issued When a man marries a woman, seized at
by authority, and continually passing, as and any time during the coverture of an estate
for coin.^ of inheritance, in severalty, in coparcenary,
The money which passes at a fixed value, or in common, and has issue by her, born
from hand to hand ; money which is author- alive, and-which might by possibility inherit
ize4 by law.s the same estate as heir to the wife, and the
Includes both coined and paper money; not all wife dies in the life-time of the husband, he
bank-notes in circulation, for all such are not neces-
Barily money. Whatever is at a discount is not money
holds the land during her life " by the curt-
esy of England." '
' Galena Ins. Co. v. Kupfer, 28 111. 335 (1802).
' [Lacy V. Holbrook, 4 Ala. 90 (1842); 9 id. 389; 34 HI. 1 Klauber v. BiggerstafE, 47 Wis. 560-61 (1879), cases,
292; 9 Ind. 135; 47 Iowa, ?72; 44 Pa. 457. Eyan, C. J. See also 3D 111. 399; 82 id. 77; 85 id. 163; 14
3 Bull V. First Nat. Bank of Kasson, 123 U. S. 112 (1887), Mich. 379; 37 id. 197; 61 N. C. 23; 1 Ohio, US, 119.
Field, J. 2 Commonwealth v. Griffiths, 126 Mass. 252 (1879).
* [Stalworth v. Blum, 41 Ala. 331 (1867); 3 T. B. Hon. ' Broom, Max. 133, 133; 7 Ct. CI. 332,
166; 21 La. An. 624; 5 Lea, 96; 1 Dall. 124; 9 Mo. 697. ■• L. curialitas, attendance upon the lord's court or
spierson v. Wallace, 7 Ark. 293 (1847); Fleming v. eurtis; i. e., being his vassal or tenant. Or, "by the
Nail, 1 Tex. 347 (1846); Moore v. Gooch, 6 Heisk. 105 courts of England,"— 2 Bl. Com. 126. From F. court-
(1871); 64 N. C. 381; 5 Cow. 187; 5 Humph. 485. esie, favor (to the husband),— 28 Barb. 345.
» [Chicago Fire, &c. Ins. Co. v. Keiron, 27 HI. 607 1 » [2 Bl. Com. 126.
Caton, C. J. » Westoott V. Miller, 42 Wis. 465 (1877), Cole, J.
' [Same v. Same, ib. 506, Walker, J. : Wharton. 'Billings V. Baker, 28 Barb. .444 (1859); 4 Kent, 27.
"Butler V. Paine, 8 Mmn. 329 (1863): Bouvier. See also 7 How. 54; 1 Sumn. 271 ; 1 McLean, 478; 2
 CURTESY 301 CURTILAGE

Under old common law, as soon as a child was born CURTILAGE. 1. Originally, the land
the father began to have a permanent interest in the with the castle and out-houses, inclosed often
lands, he became one of the pares Curtis, did homage
to the lord, and was called tenant by the curtesy " ini-
with high walls, where the old barons some-
tiate." He could do many acts to charge the land, times held court in the open air. Whence
but his estate was not " consummate" till the death court-yard, i
o£ the wife.i 3. The court-yard in the front or rear of a
The requisites are: a legal marriage; an actual
seizin or possession in the wife — wherefore no curt- house, or at its side; any piece of ground
esy can be had in a remainder or a reversion ; issue lying near, inclosed, used with, and neces-
born alive, during the life of the mother, capable of sary for the convenient occupation of the
Inheriting the estate; and, the death of the wife.'
Adopted as a common-law estate in all of the older house.
A fence 2 or inclosure of a small piece of
States, though somewhat modified in some of them.
The right is expressly created by statute in Delaware, land around a dwelling-house, usually in-
Kentucky, Maine, Massachusetts, Minnesota, New cluding the buildings occupied in connection
Hampshii-e, Khode Island, Vermont, and Wisconsin. with the dwelling-house, the inclosure con-
In Alabama, Connecticut, Illinois, Maryland, Missis- sisting either of a separate fence or partly of
sippi, Missouri, New Jersey, North Carolina, Tennes-
see, and Virginia it is recognized by the courts as an a fence and partly of the exterior of build-
existing estate. In California it is not allowed; realty ings so within this inclosure. ^
being there held in common, and the survivor talking If a bam, stable, or warehouse be parcel of the
one-half in severalty. In Georgia the husband takes mansion-house, and within the same common fence,
an absolute estate in all the property. In Kansas he though not under the same roof nor contiguous, a
takes one-half absolutely, upon her decease without a burglary may be committed therein ; for the capital
will; and if without issue, he takes all absolutely. In house protects and privileges all its branches and
Louisiana their relation to their property does not appurtenances, if within the same curtilage or home-
admit of curtesy. In Nebraska the estate is given,
unless she -had issue by a former husband who would It is perhaps unfortunate that this term, which is
stall.'
take the estate. In New York it would seem that she found in English statutes, and which is descriptive of
may defeat a right by conveyance. In Ohio, Oregon, the common arrangement of dwellings, and the yards
and Pennsylvania issue is not necessary. In South surrounding them, in England, should have been per-
Carolina he takes his share in fee. In Texas any petuated inour statutes. It is not strictly applicable
property is the common property of both. In Dakota, to the common disposition of inclosures and buildings
Indiana, Michigan, and Nevada the estate seems to be constituting the homestead of the inhabitants of this
abolished. country. In England dwellings and out-houses of all
In many of the States curtesy is given, by statute, kinds are usually surrounded by a fence or stone-
in equitable estates of which the wife is seized. The wall, inclosing a small piece of land embracing 'the
right extends to equities of redemption, contingent yards and out-buildings near the house constituting
uses, and moneys directed to be laid out in lands for what is called the court. Such precautionary ar-
the benefit of the wife.'' rangements have not been necessary in this coimtry.*
In the absence of fraud, a husband who is embar- Nothing is implied as to the size of the parcel of
rassed may convey his curtesy to a trustee for the
benefit of his wife and children, for a consideration In Michigan, includes more than an inclosure near
valuable in equity. 8 Compare Dower. land.^
theInhouse.*
§ 4347, code of Alabama, defining arson in the
2. A voluntary act of kindness.
second degree, includes the yard or space near a
An act of kindness toward another person, dwelling-house, within the same inclosure, and used
of the free will of the doer, without previous in connection with it by the household; as, a ham
request or promise of reward, has sometimes which opens into such yard, in part separating it from
been called a " voluntary curtesy." another inclosure.'
Under a mechanics' lien law, a jury may determine
From such act the law implies no promise for re-
muneration. Ifit were otherwise, one man might the necessary curtilage to which a lien extends.*
impose a legal obligation upon another against his
1 Coddington v. Dry Dock Co., 31 N. J. L. 485 (1863).
will. Hence the phrases " a voluntary curtesy will " [People V. Gedney, 10 Hun, 154 (1877): Bac. Abr.
not support an assumpsit," but that " a cm-tesy moved 8 Commonwealth v. Barney, 10 Cush. 481, 483 (1852),
by a previous request will." < See Protest, 8.
Dewey, J. Approved, 140 Mass. 289.
Mac A 6.3; 15 Ark. 48.3; 43 Miss. 633; 8 Neb. 525; 14 S. C. < 4 Bl. Com. 225; 1 Hale, P. C. 568; 61 Ala. 58; 31 Me.
523.
307; 8 Baxt.361; C Mo. Ap. 416, 549.
' 2 Bl. Com. 127. » People V. Taylor, 2 Mich. 251 (1851).
= See 1 Washburn, Real Prop., 4 ed., 164, 166 (1876). "Edwards v. Derrickson, 28 N. J. L. 45 (1859); Same
' Hitz V. Nat. Metropolitan Bank, 111 U. S. 722 (1884). V. Same, 29 id. 474 (1861).
< See Lampleigh v. Brathwait, 1 Sm. L. C. •222; Holt- ' Washington v. State, 82 Ala. 32 (1886).
house. 8 Keppel V. Jackson, 3 W. & S. 320 (1842) ; 5 Eawle, 291.
 CUEVES 303 CUSTOM

CURVES. SeeRAlLKOAD. reasons with respect to which they have ex-

CUSTODIA. L. Keeping, custody; lit-
erally, watch, guard, care. ercised it."istrictly speaking, is the evidence of a
"Usage,"
V In eustodia legis. In the custody of the "custom." ^
law. See Custody. "Custom " is the making of a law; " prescription,"
CUSTODY. See Custodia. 1, Care, the making of a right. ^
Customary. Originating in long usage :
possession, charge : as, the custody of a child,, as, customary incidents or rights ; customary
of a lunatic, of a ward ; i the custody of a de- dispatch, q. v. ; customary estate, freehold,*
posit, or of funds.
service,^ tenant;* customary law: common
Custody of property, as contradistinguished law.
from legal possession, is that charge to keep General customs. The universal rule of
and care for the owner, subject to his direc- the whole kingdom, forming the common
tion, and without any adverse right, which law, in its stricter and more usual significa-
every servant possesses with regard to goods tion. Particular customs. Such as, for
confided to his care.^ the most part, affect only the inhabitants of
3. Detention by lawful authority.
particular districts ;S a local or special cus-
Custody of the law. Property lawfully tom.
taken by virtue of legal process is in. the cus- A general custom is a general law.'
tody of the law. 3 "General" customs are such as prevail
In tMs category are goods lawfully levied upon by throughout a country and become the law of
a marshal, sheriff, or constable; goods impounded; *
property in the hands of a receiver, q. v.; money paid the country. " Particular " customs are such
into court. as prevail in some county, city, town, or other
Such property, for the time being, is not liable to be
again seized in execution by the officer of any other The chief comer-stone of the laws of England is
court.* general immemorial custom, or common law, from
place.
time to time8 declared in the decisions of the courts of
But the court of a State cannot by this device pre-
vent the collection of Federal taxes.* justice; which decisions are preserved among the
3. A person under lawful arrest is said to public records, explained in the reports, and digested
be in custody or in the custody of the law. for general use by the sages of the law. . . Our
practice is to make custom of equal authority with the
See Rescue.
written law,— when it is not contradicted by that law.
A sentence that a prisoner " be in custody till his " For, where is the difference, whether the people de-
sentence is complied with," imports actual imprison- clare their assent to a law by suffrage, or by a uniform
ment.*^ course of acting accordingly? " . . It is one of the
CUSTOM.8 That length of usage which marks of English liberty that our common law de-
has become law ; a usage which has acquired pends upon custom; which carries this internal evi-
the force of law. Often used synonymously dence of freedom along with it, that it probably was
introduced by the voluntary consent of the people.*
with "usage." 9 See Law, Common.
A law established by long iisage. A universal cus- Particular customs are doubtless the remains of
tom becomes common law.i* that multitude of local customs out of which the com-
" The law or rule which is not written, and mon law was collected, at first by Alfred. For reasons
which men have used for a long time, sup- that have been long forgotten, particular counties,
porting themselves by it in the things and cities, towns, and manors were indulged with the
privilege of abiding by their own customs. Such, for
example, are the customs of London. These particular
>1B1. Com. 303; 3 id. 437. customs must be proved to exist, and appear to be:
' [People V. Burr, 41 How. Pr. 896 (1871). legal, that is, be immemorial; coi^tinued— tlie right
iminteiTupted; peaceable— acquiesced in; reason-
1 [Gilman v. Williams, 7 Wis. *334 (1859).
<3B1. Com. 12,146.
*Buck V. Colbath, 3 V7all. 341 (1865), cases. > Strother v. Lucas, 12 Pet. *446 (1838).
• Keely v. Sanders, 99 U. S. 442 (1878). 2 See 3 Pars. Contr. 239.
' Smith V. Commonwealth, 59 Pa. 324 (1868). * Lawson, Usages & Customs, 15, n. 3.
6F. custume; L. L. costuma: con, together, very; * 2 Bl. Com. 149.
* 3 Bl. Com. 234.
suere, to make one's own — have it one's own way, — » 1 Bl. Com. 67.
Skeat. Compare Customs; Consuetudo.
» Walls V. Bailey, 49 N. Y. 471 (1872), Polger, J. ; Hursh ' United States v. Arredondo, 6 Pet. 715 (1832). ,
V. North, 40 Pa. 243 (1861); Bishop, Contr. § 444. * Bodflsh V. Fox, 23 Me. 96 (1843); 12 Pet. *446.
>» Wilcox V. Wood, 9 Wend. 349 (1832), Savage, C. J. 9 1 Bl. Com. 73-74.
 303
CUSTOM CUT

able — no sufBoient legal reason be assignable against j The unoontradiotod testimony of one witness may
the custom; certain — ascertained or ascertainable; be sufficient to establish a custom.'
compulsory — not left to one's option, to use or not Customary rights and incidents are such as uni-
to use; and consistent — witli each other, if not, then versally attach to the subject-matter of a contract in
they could never have been assented to. Customs the place where the contract is made. These also are
In derogation of the common law are strictly con- impliedly annexed to the terms of a contract imless
strued.' expressly excluded." See Use, 2, Usage; Usus, Mains
In few States do any purely local customs, such as usus, etc.
have just been explained, exist. And such customs Custom of merchants. A system of
are to be carefully distinguished from "usages of customs, originating among merchants, and
trade or business." These are everywhere allowed allowed for the benefit of trade as part of the
their just influence and operation. A usage of trade
and business clearly proved to exist, to be ancient, common law.
notorious, reasonable, and consistent with law, is per- Of such are certain rules relating to bills of ex-
mitted to explain the meaning of ambiguous words in change (as, that of allowing days of grace), to mer-
written contracts, and to control the mode and extent cantile contracts, to the sale, pm'chase, and barter of
of their rights where the parties have been silent. But goods, to freight, insurance, shipping, partnerships.'
It is never admitted against the expressed agreement Constitutes the lex mercatoria or law merchant. See
Merchant, Law.
of the parties, nor in violation of any statute or well-
established rule of law. The current of decisions of Customs of London. Particular cus-
late years has been to restrain and limit the allowance toms relating chiefly to trade, apprentices,
and influence of special usages.'
widows, orphans, and local government.
The courts take judicial notice of general customs.
"Will.
Particular or special customs are to be alleged and Good only by special usage ; and tried by the certifi-
cate of the mayor and alderman, by the mouth of their
proved.^
Evidence of a temporary custom of which the party recorder.*
CUSTOMERS. See Boycotting; Good
to be affected has no knowledge is not admissible
against him.*
Where the object is to interpret a contract it is not CUSTOMS. Taxes upon goods or mer-
necessary to prove all the elements of a custom neces- chandise imported or exported.'
sary to make a law.^ The duties, toll, tribute, or tariff payable
To establish the validity of a custom the usage
must have existed so long as to become generally upon merchandise exported or imported.^
known, and it must be clearly and distinctly proved. They are the inheritance of the king from almost
of a large number of wit- immemorial time. Denommated, in ancient records,
The concurrent testimony
nesses increases the probabUity of its being generally costuma, from the French coustom or coutom, toll or
known. This is illustrated in the case of a custom tribute ; which.in turn is from const, price, charge, cost.'
which authorizes the captain of a steamboat to insure Customs were exactions maintained by the crown
it for the beneflt of the owner without his express or lords upon the grounds of immemorial usage. In
direction."* time, only duties upon merchandise, and as regulated
Evidence of a custom or usage of trade is resorted by law, remained.
to in order to ascertain and explain the meaning and Common phrases are: customs appraiser, customs
intention of the parties to a contract: on the theory collector, customs commissioner, customs laws. See
that they knew of its existence and contracted with Duties, 2; KEFUNns; Smuggle.
reference to it. It is never received if it is inconsistent CUT. 1. A wound made with an instru-
with the contract, if it contradicts or varies directly ment having an edge.' See Battery ; May-
if it
or by necessary implication express stipulations, hem; Stab; Wound.
would subvert a settled rule of law, or if there is no
contract in reality.' See Eingino Up. 3. An impression made upon paper or cloth
from an engraved block or plate. See Copy-
> 1 Bl. Com. 70-79; Liiidsay v. Cusimano, 12 F. R. 506 right. ■
(1882); nOU. S. 499.
Compare Coupon; Tail. See Timber;
«1 Shars. Bl. Com. 78; Coxe v. Heisley, 19 Pa. 246-^ Waste.
(1852), cases, Black, C. J.
» 1 Greenl. Ev. § 5; 1 Whart. Ev. §§ 298, 331. (1871) ■ TiUey v. County of Cook, 103 U. S. 162 (1880),
1 Wootters v. Kauffman, 67 Tex. 493 (1887), cases. 31 F. R. 620 (1887), cases.
cases'; The s Dora Mathews n,, ante.
» Carter v. Philadelphia Coal Co., 77 Pa. 290 (1875); 1 Wootter v. Kauffma
gen-
Morningstar v. Cunningham, 110 Ind.
333-35 (1886), ' 1 Greenl Ev. § 405; 1 Whart. Ev. § 969. See
cases; 1 Cooley, Bl. Com. 76, note. erally Wigglesworth V. Dallison, Dougl. 190 (1779):
Sm.
(1880),
•Adams V. Pittsburgh Ins. Co., 95 Pa. 855-56 L. C, 8 ed., vol. I, pt. II, 928-65, cases.
3 2 Pars. Contr. 539; 1 Bl. Com. 75.
V. Screw Compan y, 23 How. 431 (1859); In- * 1 Bl. Com. 75, 76; 3 id. 334.
' Bliven
surance Companies v. Wright, 1 Wall. 470-72 (1863); 6 See 1 Story, Const. § 949.
id. 679 (1866) ; Barnard v. Kellogg , « 1 Bl Com. 313-14, note (v).
, Thompson v. Riggs, 5
. 10 id. 390 (1870); Eobins on v. United States, 13 id. 365 ' State V. Patza, 3 La. An. 514 (1848), cases.
 BAM
CUTLERY 304

CUTLERY. A generic term, often used was in progress, the Thirteenth Amendment, abolish-
to describe razors, scissors, and sheax-s, as ing slavery, was adopted (1865); and the fund in ques-
tion was ultimately applied to the New England Branch
well as knives for table, pocket, and other
of the American Freedman's Union Commission.
uses.i The general doctrine has been approved in all of the
'' Slieep shears " are included within the word, as New England States except Connecticut, in Illinois,
used in Schedule C of the TariS Act of March 3, 1883. > and in Mississippi. In some States the doctrine has
The name of an imported article, is not the sole not been decided; in Pennsylvania it obtains where a
guide hy which to classify it for duty; its uses, espe- designated class of beneficiaries become extinct; ' in
cially when new and a substitute for other articles, Alabama, Indiana, Iowa, Maryland, New York, North
should be considered. Thus "hair clippers" should Carolina, South Carolina, and Virginia, it seems to be
be rated as " cutlery." ' See Duties.
CY PRES.3 As near ; as near as ; as near The Supreme
repudiated. '^i ^ Court of the United States, in its lat-
as can be. est decisions, favors the doctrine.' See Chabity, 2.
The rule of construction that the intention
of a testator, who seeks to create a charity, D.
is to be given effect as far as is consistent
with the rules of law * is known as the cypris D. 1. As an abbreviation may signify, in
doctrine.
addition to the words noted below, diction-
Refers to the judicial power of substitut-
ary, dictum, digest, division.
ing a charity which approaches another, the
2. In the old action of ejectment stood for
original, charity, in nature and character. ^ demissione, by demise, q. v.
Where the particular intention cannot be
3. In the apportionment of jurisdiction to
given .effect, the words will be construed so
the United States courts is used for "Dis-
as to give effect to the general intention
evinced, and that as near to the particular trict:" as, E. D., M. D., N. D., S. D., and
W. D.,— -eastern, middle, northern, southern,
intention as the law permits. and western district.
The doctrine modifies the strictness of the common
law, as to a condition precedent to the enjoyment of D. B. E. De bene esse, conditionally. See
a personal legacy. When a literal compliance with De, Bene, etc.
the condition becomes impossible from unavoidable D. B. N. De bonis non, of effects unad-
circumstances, and without default in the legatee, it ministered. See Administer, 4.
is sufficient that the condition is complied with as near
D. C. District court ; District of Columbia.
as it practically can be.^
Borrowed from the Roman law, by which donations D. C. L. Doctor of the civil law. See
4or public pui"poses were applied, when illegal cypres, Doctor. >
, to other and legal piu-poses.^ Or, originated in the in- D. J. District judge.
dulgence shown to the ignorance of testators who de-
vised to the unborn son of an unborn son.^
D. P. Dotnus procerum, House of Lords.
A leading and illustrative case is that of Jackson v. D. B.. Declaration of Rights.
Phillips,^ decided in Massaciiusetts in 1867. The will D. S. Deputy sheriff.
created a trust " for the preparation and circulation D. S. B. Debitum sine brevi, debt with-
of books and newspapers, the delivery of speeches,
out a writ. See Debet, Debitum, etc.
lectures, and such other means as in their [the trust-
ees'] judgment will create a. public sentiment that daily;. See Day.
will put an end to negro slavery in this country," and DAKOTA. See Territory, 2.
" for the benefit of fugitive slaves escaping from the DAM. The work or structure raised to
slave-holding States." While litigation upon the will obstruct the flow of water in a stream ; also,
' Sinimons Hardware Co. v. Lancaster, 31 F. E. 445 1 Acti 26 May, 1876 : P. L. Sll.
<1881> 'See Bispham, Eq. § 130 (1888); 1 Col. Law T. 8-14
= Koch V. Seeberger, 30 F. E. 424 (1887). (1887), cases.
3 Cy prds; pronounced, ci-pra'. Law Fr, cy^ con.- = See Loring v. Marsh, 6 Wall. 337 (1867); Perin v.
tracted from icy, now ici, here. Carey, 24 How. 465 (1860); Fontain v. Eavenel, 17 id.
360 (1854); Vidal v. Girard, 8 id. 187 (1844); Jackson v.
< See Coster' v. Lorillard, 14 Wend. 308 (1835), Sav- Phillips, 14 Allen, 588 (1867).
age, C. J.
0 [4 Kent, 508 (5) 1 ; 2 id. S88 (a). See generally 38 Ala. 305; 22 Conn. 54; 30 id. 113; 4
« [1 Story, Eq. § 891. See Be Brown's Will, 18 Ch. Ga. 404; 25 id. 420; 16 111; 881; 35 Ind. 198; 46 id. 1?2; 18
Div. 65 (1881). B. Mon. 635; 49 Me. 303; 50 Mo. 167; 33 N. H. 296; 20
' See 1 Story, Eq. § 1169. N. J. B. 522; 23 N. Y. 308; 34 id. 684; 17 S. & R. 88; 45
« Williams, Real Prop. 264. Pa. 27; 63 id. 465; 4 R. I. 439; 7 id. 258; 3 S. C. 609; 27
' 14 Allen, 639, 649, 574-96, cases. Gray, J. Tex. 173; 3 W. Va. 310.
 DAMAGE 805 BAMAGES

the pond of water created by the obstruc- A compensation, recompense, or satisfac-

tion.! See Aqua, Currit, etc.; Mill, 1; tion to the plaintiff for an injury actually
Navigable ; Ripaeian ; Take, 8. received by him from the defendant.'
DAMAGE. Detriment ; deprivation ; in- The legal injury is the standard by which the com-
juryloss.
; pensation isto be measured: the injured party is to
be placed, as near as may be, in the situation he would
Etymologically, a thing taken away; the have occupied if the wrong had not been committed.^
lost thing, which a party is entitled to have When it is said that a person is or will be respon-
restored, that he may be made whole again. 2 sible (or be required to respond) or liable or answer-
See Damnum ; Loss. able "in damages," the meaning is, he may or will be
required by law to furnish a money equivalent for the
Loss caused by malice or negligence in an-
injvuy he has done.
other person, or from inevitable accident.
Actual or single damages. Compensa-
Interchanged with '■ injury," q. i: tion for the real loss or injury. Increased,
Referring to a collision between vessels, the injury
directly and necessarily resulting from the collision.' double, or treble damages. Single dam-
When a bill of lading recites that the goods are re- ages, as found by a jury, enhanced by the
ceived ingood order and that the carrier will " not be
accountable for weight, contents, packing, and dam- court.'
The statutes of nearly every State provide for the
age," damage
" " refers to injuries to the goods at the increase of damages where the injury complained of
tinle of receipt.* results from neglect of duties imposed for the better
Damage-feasant.s Doing damage. security of life and property, and make that increase,
Said of animals trespassing upon land. To insure in some cases, even quadruple the actual damages.
identification, the injured person may distrain them." Experience favors tiiis legislation as the most efficient
A person is not justified in kiUing animals or fowls mode of preventing, with the least inconvenience, the
found trespassing upon his land. He should impound commission of injuries. The decisions of the highest
them, or sue for the damage they do. They are valu- courts have affli-med the validity of such legislation.
able property, the destruction of which is not neces- The injury actually received is often so small that in
sary to the protection of liis rights. A notice of an many cases no effort would be made by the sufferer to
intention to kill the animals or fowls, if not shut up, is obtain redress, if the private injury were not sup-
a threat to do an illegal act.' Fence. ported by the imposition of punitive damages.* See
DAMAGES. The compensation which
the law will award for an injury done.* Civil damages. Injuries sustained either
A species of property given to a man by a to one's rights as a citizen of a State and of
jury as a compensation and satisfaction for, the United States, or else to his relative
rights as a member of a family, and aside
some injury sustained.'
The plaintiff has no certain demand till after ver- from any view of the act complained of as
dict; but when the jury has assessed his damages and an offense to the public and punishable in
judgment is given thereon, he instantly acquires, the criminal tribunals.
and the defendant loses, a right to that specific sum.
Civil Damage Laws. (1) Statutes which
The verdict and judgment fix and ascertain the
confer upon colored persons individual rights
plaintiff's inchoate title; they do not give, they define,
his right.' • of action in the civil courts for any dis-
The recompense that is given by a jury to crimination against them and in favor of
the plaintiff for the wrong the defendant white persons on account of race, color, or
hath done unto him.!" previous condition of servitude. See Right,
Civil Rights Act.
■ [Colwell V. Water Power Co., 19 N. J. E. 348 (1868). (2) Statutes which confer a right of action in
' [Fay V. Parker, 53 N. H. 342 (1872). a civil court upon the wife,, family, or a near
' Memphis, &c. Packet Co. v. Gaeger Transportation
Co., 10 r. K. 396 (1882).
* The Tommy, 16 F. E. 601, 603 (1883). ' 2 Greenl. Ev. § 253; Dow u Humbert, 91 U. S. 299
» Faz'-ant.
(1875), Miller, J. See also Shugai-t v. Egan, 83 HI. 67
»3B1. Com. 6-7; 50 Mich. 32. (1876); Tetzner v. Naughton, 13 Bradw. 153 (1882);
'aark V. Keliher, 107 Mass. 409 (1871); Johnson v. Scripps V. Eeilly, 38 Mich. 23 (1878); 9 Heisk. 860; 86
Patterson, 14 Conn. 3-12 (1840), cases; Matthews v. Ga. 371; 16 Johns. 14.S; 55 Vt. 164.
Fiestel, 2 E. D. S. 90 (N. Y., 1853). 2 Wicker 17. Hoppock, 6 Wall. 99 (1867), Swayne, J.
'Kansas City, &c. E. Co. v. Hicks, 30 Kan. 292(1883), » See Berry v. Fletcher, 1 Dill. 71 (1870), Dillon, Circ.
Brewer, J. J. ; Lobdell v. New Bedford, 1 Mass. *1S3 (1804); Welsh
•asi. Com. 438; 3 id. 153. V. Anthony, 16 Pa. 266 (1851); 10 Oreg. 342.
"Coke, Litt. 257 a: Eosenfield v. Express Co., 1 * Missouri Pacific E. Co. v. Humes, 115 U. S. 523
Woods, 137 (1871); 17 N. J. L. 483.
(1885), Field, J.

(30) -
 DAMAGES 806
DAMAGES

relative of a person who lost his life or who accurately stated in The Philadelphia^ Wilmington
(& Baltimore Railroad Co. v. Quigley, 21 How. 213
has sustained injuries in consequence of in-
(1858): Mr. Justice Campbell, who delivered the opin-
toxicating liquor having been sold or given to
ion of the court, saying — " whenever the injury com-
him in violation of law.i plained of has been inflicted maliciously or wantonly,
The Massachusetts statute contemplates that the and with circumstances of contumely or indignity,
habitual drunkenness of a husbaud or wife, parent or the jury are not limited to the ascertainment of a sim-
child, is a substantial injury to those bound together ple compensation for the wrong committed against
in domestic relations, and gives the right to recover the aggrieved person. The malice spoken of in this
damages in the nature of a penalty, not only for any rule is not merely the doing of an unlawful or injuri-
injury to the person or property, but for the shame ous act: the word implies that the wrong complained
and disgrace brought upon them. Hence, the right of of was conceived in the spirit of mischief, or criminal
a son to recover damages does not depend upon the indifference to civil obligations." Although this rule
question whether he is dependent upon the father for was announced in an action for libel it is equally ap-
support or not, but solely upon the relation.* See plicable to suits for personal injuries received from
Policy, 1, Public. the negligence of others. Eedress coraimensurate
Compensatory damages. Such dam- with such injuries should be afforded. In ascertaining
ages as measure the actual loss, and are al- its extent the jury may consider all the facts which
relate to the wrongful act of the defendant, and its
lowed as amends therefor. Exem.plary,
consequences to the plaintiff; but they are not at hb-
punitive, ot vindictive damages. Such erty to go further, unless it was done willfully, or was
damages as are in excess of the actual loss, the result of that reckless indifference to the rights of
and allowed, in theory, where a tort is aggra- others which is equivalent to an intentional violation
of tliem. In that case the jury are authorized, for the
vated by evil motive — actual malice, deliber-
ate violence or oppression, or fraud. sake of public example, to give such additional dam-
ages as the circumstances require. The tort is aggra-
Exemplary damages are sometimes called " smart vated by the evil motive, and on this rests the rule of
money." * exemplary damages. ^
All rules of damages are referred to compensation
or punishment. Compensation is to make the injured "Exemplary," "punitive," and "vindictive" dam-
ages are synonymous terms. In cases of personal
party whole; exemplary damages are something be- torts, such as assault and battery, slander, libel, seduc-
yond this, and are inflicted with a view to punishing tion, criminal conversation, malicious arrests and
the defendant.* prosecutions, seizure of goods, where the element of
It is undoubtedly true that the allowance of any fraud, raalice, gross negligence, cruelty, oppression,
thing more than an adequate pecuniary indemnity for brutality, or wantonness intervened, exemplary or
a wrong suffei-ed is a departure from the principle punitive damg,ges maybe recovered. And, since what
upon which damages in civil suits are awarded. But would be a severe verdict to one of limited means
although, as a rule, the plaintiff recovers merely such might be but a trifle to one of large means, and the
indemnity, yet the doctrine is too well settled now to
be shaken that exemplary damages may in certain reason of the rule fail, evidence of the defendant's
ability to respond in damages may always be given in
cases be assessed. As the question of intention is al-
ways material in an action of tort, and as the circum- evidence."
stances which characterize the transaction are, the^e- Constructive damages. Such damages
.fore, proper to be weighed by the jury in fixing the as are imputed in law from an act of wrong
compensation of the injured party, it may well be con- to another person.
sidered whether the doctrine of exemplary damages Contingent damages. Such damages as
cannot be reconciled with the idea that compensation
alone is the true measure of redress. But jurists have
may or may not occur or be suffered ; such
chosen to place the doctrine on the ground, not that
the sufferer is to be recompensed, but that the offender ' Milwaukee & St. Paul E. Co. v. Arms. 91 U. S. 492-
is to be punished; and, although some text- writers 98 (1875), Davis, J. See also Missouri Pacific E. Co. v.
and courts have questioned its soundness, it has been Humes, 115 id. 621 (1885); BaiTy v. Edmunds, 116 id.
accepted as the rule in England and in most of the 662-64 (1886), cases; Denver, &c. E. Co. v. Harris, 122
States of this country. It has also received the sanc- id. 60a-10 (1887), cases; 1 Kan. Law J. 74, 118-22 (1885),
■tion of the Supreme Court. Discussed and recognized cases; 3 id. 369-75 (1886).
in Day v. Woodworth, 13 How. 371 (1851), it was more = Brown v. Evans, 8 Saw. 490 (1883), cases, Sabin, J.:
s. c, 17 F. E. 912. See also Nagle v. MuUison, 34 Pa.
» See Bertholf u O'Eeilly, 74 N. Y. 511-30 (1878), cases ; 53 (1859), cases; Chicago, &c. E. Co. v. Scurr, 59 Miss.
84 111. 195; 57 Ind. 171; 43 Iowa, 588; 50 id. 31; 29 Kan. 461 (1882); Louisville, &c. E. Co. v. Guinan, 11 Lea,
109; 130 Mass. 366; 133 id. 54-55; 67 Me. 517; 41 Mich. 103-6 (1883), cases; 71 Ala. 293; 50 Conn. 583; 76 El. 223;
475; 20 Alb. Law J. 204-5 (1879), cases; 19 Cent. Law J. 92 id. 97; 63 Ind. 57; 39 Mich. 211 ; 36 Mo. 230; 53 N. H.
208-10 (1884), cases. 342; 56 id. 456; 35 N. Y. 25; 76 Va. 137; 41 Wis. 284; 1
' Taylor v. Carroll, 145 Mass. 96 (1887). Kent, 630; 2 Sedgw. Dam. 323; 2 Greenl. Ev. § 253; ?8
» See 36 Conn. 185. Alb. Law .T. 44 (1881), cases; 18 Cent. Law J. 143-46
< Berry v. Metcher, 1 Dill. 71 (1870). (1884), casefi.
 307
DAMAGES DAMAGES

as depend upon an event which may or may Special damages must be particularly averred in
not happen. the declaration,— for notice to the defendant, and
thereby to prevent surprise at the trial. They result
Continuing damages. Damages in- as the natural but not as the necessary consequence of
- curred or suffered between two dates, as the the act complained of.' See Per, Quod.
beginning and the end of an act, and more' Liquidated damages. Damages defi-
or less separated in time. See ContinuanDo. nitely ascertained by agreement of the parties
Direct or immediate damages. Such or by the Judgment of a court. Unliqui-
damages as result from an act without the dated damages. Such damages as are not
intervention of any intermediate controlling so determined.
or self-eflScient cause. Consequential or Care must be taken to distinguish between cases of
resulting, indirect or remote damages. "penalties," strictly so called, and cases of "liqui-
Not produced without the concurrence of dated damages." The latter properly occurwhen the
some other event attributable to the same parties have agreed that, in case one party shall do a
stipulated act or omit to do it, the other party shall re-
origin or cause. ceive a certain sum as the just, appropriate and con-
" Direct damages " include the damages for ali sucli ventional amount of the damages sustained by such
injurious consequences as proceed immediately from act or omission. In cases of this sort courts of equity
tlie cause whicli is the basis of the action, not merely do not mterfere to grant relief, but deem the parties
for the consequences which invariably or necessarily entitled to fix their own measure of damages; pro-
result and which are always provable imder the gen- vided always that the damages do not assume the
eral allegation of damages in the declaration ; but also character of extravagance, or of wanton and imrea-
other direct effects which have in the particular in- sonable disproportion to the nature or extent of the
stance naturally ensued, and, to be recovered for, must injury. On the other hand, those courts will not suffer
be alleged specially. " Consequential damages " are their jurisdiction [to grant relief in the case of a pen-
those which the cause in question naturally but indi- alty, if compensation can be made] to be evaded
rectly produced.' merely by the fact that the parties have called a sum
All '• remote damages " are consequential, but all damages which is, in fact and in intent, a penalty.'
" consequential damages '■ are by no means remote." See further Penalty. i
Excessive damages. Damages awarded Ifominal damages. A trivial sum
by a jury, so much lai-ger in amount than awarded where a mere breach of duty or in-
what are justly due as to indicate that the fraction of right is shown, with no serious
jurors must have been influenced by partial- loss sustained. Substantial damages. A
ity, prejudice, passion, or ignorance; also sum awarded as compensation for injury act-
called inordinate and unreasonable da,nia,ges. ually suffered ; compensatory damages, q. v.
Inadequate damages. Damages which, Whenever a right is invaded the law infers damage,
for some such reason, are grossly less than and will award, pro forma, some small sum at least;
the sum actually due ; also called insufficient as, one cent, six and one-quarter cents — half of an
American shilling, etc.^
damages. Failure to show actual damages, and the inference
Verdicts for excessive or inadequate damages are that none have been sustained, do not necessarily
set aside by the courts — the evidence of misappre- render a case trivial.*
hension or disregard of duty, on the part of the jury A judgment for one cent, damages for trespass upon
being clear beyond question. 3 a mining claim, entered upon a special verdict for
General damages. Such damages as by "nominal damages," if in other respects proper, wiU
implication of law result from an act, and not be set aside for uncertainty in the verdict. " Nom-
are awarded in the sound discretion of the inal damages " refers to some trifling sum. In such a
case the doctrine of de minimis should be invoked."
jury, without evidence of particular loss.'' Prospective damages. A loss which, in
Special damages. Losses which are the
natual, but not the necessary, consequence all probability, will be sustained by a plaint-
of the act; a loss which is peculiar to the ' See 1 Sutherl. Dam. 763; Eoberts v. Graham, 6
particular case. Wall. 579 (1867); Mitchell v. Clark, 71 Cal. 167, 168
(1886); Atchison, &c. E. Co. v. Rice, 36 Kan. 602-3 (1887);
38 Cal. 689; 43 Conn. 567; 84111. 195; 121 Mass. 393; 78
' 1 Sutherland, Damages, 19, 20; 50 N. H. 513. Pa. 78; 1 Chitty, Pl. 395; 2 Sedgw. Dam. 606.
2 Sedgwick, Damages, 7 ed., 90, 101. ' !" 2 Story, Eq. § 1318. See 1 Am. Dec. 331; 30 Am. E.
s Barry ti. Edmunds, 116 U. S. 565 (1886); 3 Story, 6T0; ;6; 12 Am. Law Eev. 286-300 (1878), cases; 19 Cent, Law
Borland v. Barrett, 76 Va. 137 (1882); Phillips v. Lon- J. 282-90, 302-6 (1884), cases.
don, &c. E. Co., 5Q. B. D. 78 (1879): 21 Alb. Law J. 63: = Mayne, Damages, 5; Sedgwick, Dam. 47.
88Ind. 389; 59 Tex. 269; 2 Sedgw. Dam. 334. ■1 Paterson v. Dakin, 31 F. E. 685 (1887).
' See Smith v. St. Paul, &c. E. Co., 30 Minn. 172(1863). ' Davidson v. Devine, 70 Cal. 519 (1886).
 DAMAGES
DAMAGES

indi'vidual for injury to his person, in the constitution

iff; indemnity for losses which will "almost
to a certainty happen." i Termed specula- of each State. ^
, In an action for a personal injury the plaintiff is
tive damages when the probability that a entitled to recover compensation, so far as it is sus-
circumstance will exist as an element for
ceptible of an estimate in money, for the loss and"
Compensation becomes conjectural. damage caused to him by the defendant's negligence,
The lack of certainty in the measurement of dam- including not only expenses incurred for medical at-
ages is no reason for refusing compensation. The tendance, and a reasonable sum for his suffering, but
law is full of instances where there is the same uncer- also a fair recompense for the loss of what he would
tainty, and where the jury determine what is reason- otherwise have earned in his trade or profession, and
able compensation. All that is necessary is that there has been deprived of the capacity of earning, by the
be certainty of damage as a direct result, and not a wrongful act of the defendant. To assist the jury in
case of damnum absque injuria.^ making such an estimate, standard life and annuity
tables, showing at any age the probable duration of
On a contract to pay money at stipulated periods life, and the present value of a life annuity, are com-
. there may be as manj- suits as there are installments. petent evidence, but not absolute guides.^
On a tort there is but one action, and in that the party In a statute providing that actions for tort for as-
must have full justice; hence the com'ts anticipate a sault, battery, imprisonment, or other "damage to
loss likely to occur in the future. ^ the person," shall survive to the representative, the
When one party enters upon the performance of a tort must affect the person directly — not the feelings
contract, incurs expense therein, and, being willing to or the reputation, as in cases of breach of promise,
perform, is, without fault of his own, prevented by the slander, and malicious prosecution. The substantial
other party, his loss will consist of two distinct items cause of action must be a bodily injury, or damage of
of damage : his outlay and expenses, less the value of
a physical character, whether trespass or case lie.'
materials on hand: and the profits lie might have re- At common law no damages were recoverable for
alized by performance. The first item he may recover the loss of a human life. The reason was: life tran-
in all cases ; and the second (the profits), when they scended all moneyed value; or, because, under feudal
are the direct fruit of the contract, and not too remote law, the property of a felon was forfeited to the
or speculative. . If the party injured by the stop- crown, so that nothing remained wherewith to satisfy
page of a contract elects to rescind the contract he private demands. The life of a subject, as far as ca-
cannot recover for outlay or for loss of profits ; only pable of.proprietorship, was the property of the gov-
for the value of services actually performed, as upon ernment; the justice which was to be satisfied was
a quantum meruit.* public justice ; the deceased and his family were only
Damages for the breach of a contract are limited regarded as members of the state ; the public, through
to such a& are the natural and proximate conse- the government, infiicted the punishment and re-
quences of the breach, such as may fairly be supposed ceived the amercement, and, as far as necessity ex-
to enter into the contemplation of the parties when isted, provided for the family, and, therefore, private
they made the contract, and such as might naturally redress or satisfaction was excluded. The effect of
be expected to result from its violation.^ See further the action now allowed by statute (as to which see
under Contract.
below) is, pro tanto, to reheve the state of a pubhc
But if a party can save himself from loss arising
charge ; the suit for damages becomes a private action.^
from a breach, of contract at trifling expense or with
The common-law rule has been changed in most of
reasonable exertion, it is his duty to do so.^ See In- the States by statutes which follow closely 9 and 10
demnity, 1.
The right to compensation for damages to the per- Vict. (1846), known as "Lord Campbell's Act." Pro-
ceeding upon the theory that the widow, the children,
son or for pei-sonal injuries is well recognized at com- and perhaps the parents, have a pecuniary interest in
mon law. Any limitation by the legislature to a sum
the life of the deceased, these statutes provide that for
less than the actual damages is in conflict with the the benefit of such relatives an action for damages
right of remedy by due course of law reserved to the may be maintained against the person by whose
wrongful act the deceased lost his life, the act being
» See 2 Addison, Torts, 1391. To realty, see 26 Am.
of such a nature that tl^e deceased, had he survived,
Law Reg. 281-93, 345-59 (1887), cases. As to future could himself have had an action for the personal
damages, see 36 Alb. Law J. 84r-89, 104-9 (1887), cases-. injury.
2 Omaha Horse R'y Co. v. Cable Tram- Way Co., 32 The right of recovery, then, being purely statutory,
F. E. 7a3-34 (1887), Brewer, J. the amount recoverable for a death rests with the dis-
a MiUer v. Wilson, 24 l>a. 120 (1854), Black, C. J. ; Stil-
son V. aibbs, 53 Mich. 283-84 (1884), Cooley, C. J.; 2 1 Cleveland, &c. R. Co. v. Rowan, 66 Pa. 400 (1870);
Bing. 240. Thirteenth Street R'y Co. v. Boudrou, 92 Pa. 481 (1880).
* United States v. Behan, 110 U. S. 338, 344-46 (1884), 2 Vicksburg & Meridian R. Co. v. Putnam, 116 V. S.
cases, Bradley, J. Approved, Lovell v. St. Louis Mut. 554-56 (1886), cases. Gray, J.
Life Ins. Co., Ill id. 274 (1884). s Norton v. Sewall, 106 Mass. 145 (1870), cases, G-ray, J.
fiMurdock v. Boston & Albany R. Co,, laS Mass. 15 ■* The E. B. Ward, 4 Woods, 149 (1883), Billings, J. ; s. c.
(1882), Morton, C. J. 17 F. R. 259. See generally Grosso v. Delaware, &c. R.
fl Miller V. Mariners' Church, 7 Greenl. *55-56 (1830); Co., Sup; Ct. N. J. (1888), cases; 25 Am. Law Reg. 307-9
W:c.wr u, Hoppock, 6 Wall. 99 (1867), cases. (1886), cases.
 309
DAIIAGES DAMNUM

cretion of the legislature. In the District of Columbia DAMNUM. L. That which is taken
this amount is $10,000; > in some States, as in Massa- away: loss; damage; legal hurt or harm.
chusetts, Connecticut, New York, and Pennsylvania,
Plural, damna: legal losses. Damniflcatus,
$5,000; but the amount recoverable for personal in-
juries generally remains unlimited,^ — in Massachu- injured. Damnosa, hurtful.
setts itis $4,000.s Ad damnuni. To the loss ; " to the dam-
In the absence of an act of Congress or a statute of
a State giving a right of action therefor, a suit in ad-
age of plaintiff (so many) dollars."
miralty cannot be maintained in the courts of the The clause, at the end of a common-law
United States to recover damages for the death of a declaration, in which the plaintiff sets out
human being on the high seas, or on waters navigable the money amount of the loss he has suffered
from the sea, which was caused by negligence." inconsequence of the act he complains of;
Where the death is caused by negligence the only also, the amount itself so set out.'
damages recoverable are for the injury to the relative
rights of the surviving membei-s of the family, and Ad quod damnum. To what damage.
are compensatory in nature. Where, therefore, a A writ, at common law, by which the
child is free, lives apart from his parents, and m no sheriff was to inquire by a jury what dam-
way contributes to their support, they cannot main-
tain an action to recover damages for his death.
age it would be to the sovereign, or to a sub-
When the child is not free the parents can recover ject, to grant a fair, market, highway, or
only the value of his services during minority, and other like franchise.2
the expenses caused by the injury and death.* An inquisition ud quod damnum designates the
In all cases the amount of damages must depend remedy given by statute for the assessment of dam-
very much on the good sense and sound judgment of ages suffered from an exercise of the right of emi-
the jury upon all the facts and circumstances of the nent domain, or in consequence of some public im-
particular case. If the suit is brought by the party provement.
there can be no fixed measure of compensation for Damniflcatus. Injured, damaged, dam-
the pain and anguish of body and mind, nor for the nified.
loss of time and care in business, or the permanent in-
jury to health and body. So when the suit is brought Quantum damniflcatus. How much he is
by the representative the pecuniary injury resulting injured.
from the death to the next of kin is equally uncertain The name of an issue by which damages,
and indefinite.* to be awarded in equity, may be ascertained
In some States statutes provide that no action will
by a jury.
lie for a wrong committed elsewhere, without proof of
This was the course in former times, and may; still
the existence of a similar right in the place where the
be the practice in cases of a complicated nature; but
wrong was committed.^ the same inquiry may now generally be made by a
See silso Actio, Personalis; Aggravation; Com- master.' See Penalty.
mence, Action; Condemnation; Costs; Indemnity;
Injury, 2; Innocent, 1; Inspection, 2; Interest, 3; Non damniflcatus. He is not injured.
Lay, 2; Malice; Measure; Neglibence; Profit, 2; The plea in the case of an action on a cove-
Eecoup; Remit, 3; Road; Solatium; Sound, 1; Res- nant to indemnify and save harmless, — in the
titutio; Take, 8; Timber; Tort; Trespass; Trouble. nature of a plea of performance.
If there was any injury the plaintiff must reply to
' Act of Congress, 17 Feb., 1885: 23 St. L. 307.
"See Exp. Gordon, 104 U. S. 517 (1881); Dennick v. such plea. Not the plea when the condition is to " dis-
Central Railroad of New Jersey, 103 id. 17 (1880); Mo- charge and acquit." *
bile Life Ins. Co. v. Brame, 95 id. 759 (1877); The Damnosa heereditas. A hurtful or bur-
Charles Morgan, 2 Flip. 275 (1878); Davies v. Lathrop, densome inheritance ; an expensive asset.
12 F. R. 356 (1882); Barrett v. Dolan, 130 Mass. 3'JO By the Roman law the heir was liable to the full
(1881); Laws Conn., 1877, c. 78, h. 1; 24 Conn. 575; 45 extent of his ancestor's liabilities.
Me. 209; 9 Cush. 108; 18 Mo. 162; 16 Barb. 54; 15 N. Y. The term has been applied to property of a bank-
433; 44 Pa. 175.
» Act of 1887. rupt which is a charge or an expense to the creditors.
The assignee need not regard such property as an
' The Harrisburg, 119 U. S. 199, 204-12 (1886), cases, asset; he may, instead, leave the creditor !to prove
Waite, C. J.
his claim; or, possibly, he may assign the burden to
s Lehigh Iron Co. v. Rupp, 100 Pa. 95, 98 (18i2).
« Illinois Central R. Co. v. Barron, 5 WaU. 105-6 (186B), R. Co., 83 Ky. 174, 180 (ISSi); Burns v. Grand Rapids,
cases. Nelson, J. ; The City of Panama, 101 U. S. 484 &c. R. Co., Sup. Ct. Ind. (1888), cases: 37 Alb. Law J.
228.
(1879); 18N. Y. 643.
' McDonald' ti. Mallory, 77 N. Y. 550 (18:9), cases; ' 2 Greenl. Ev. § 260; 108 U. S. 176; 9 Bened. 241
Leonard v. Columbia Steam Nav. Co., 84 id. 63 (1881), 2 See 2 Bl. Com. 271.
cases. See Richardson v. N. Y. Central R. Co., 98 8 2 Story, Eq. § 795.
Mass. 89 (1867), cases; Woodard v. Michigan, &c. R. « Wicker v. Hoppock, 6 Wall. 99 (1867), cases; Steph.
Co., 10 Ohio St. 122 (1839); Brace's Adm. v. Cincinnati PI. 388.
 DANGER DARE
310

another, as.' a pauper; but not so in insolvency, in Dangerous. Said of a weapon, means
which case the process is voluntary, ^ such as is likely to. cause death or to produce
Damnum absque injuria. A loss with- great bodily harm. See further Weapon.
out injury : depriTation without legal injury ;
Dangers of navigation. The ordinary
a loss for which the law provides no remedy.
Opposed, injuria absque damno: injury perils which attend navigation.' ,
Includes dangers arising from shallow waters at
without legal damage. the entrance of harbors; ' also, unavoidable dangers
There are many cases of loss for which no relief or from a bridge across a river."
equivalent in money can be afforded. Examples: un- Dangers of the river. The natural acci-
intended hurt, while due care is being exercised ; harm dents incident to river navigation ; not, such
done from taking a medicine prescribed by a person
known not to be a physician; patronage drawn off by
accidents as may be avoided by the exercise
competition in business^ ^ an improvement in a ma- of that skill, judgment, or foresight which
chine, which does not infringe the rights of a prior are demanded from persons in the particular
patentee; ^ waste by a tenant in fee, as affecting the
interest of the heir; defamatory words proven to be occupation.3
Includes dangers from unknown reefs, suddenly
true.* formed in the channel, and not discoverable by the
Every public improvement, while adding to the
convenience of the people at large, affects more or use of care.*
Dangers of the sea or seas. Stress of
less injuriously the interests of some individuals."
When the exercise of a right, conferred by law for weather, winds and waves, lightning, tem-
the benefit of the public, is attended with temporary pests, and other extraordinary occurrences,
inconvenience to private parties, in common with the as understood in a marine policy; not, the
public in general, they are not entitled to damages
therefor." ordinary perils which every vessel must en-
Damnum, fatale'. A fated loss ; a loss or- counter.6
Accidents, peculiar to navigation, of an
dained by fate — beyond the control of man.
In the civil law, a loss for which a bailee was not extraordinai-y nature, or arising from an
. liable: as, a loss by shipwreck, lightning, or other irresistible force or overwhelming power
like casualty; also, a loss from fire or from pirates.^ which cannot be guarded against by the or-
Included all accidents occasioned by an "act of dinary exertions of human skill and pru-
God' or public enemy," and, perhaps, also, others
which would not now be considered as due to "irre-
All unavoidable accidents from which
dence."
sistible force." 8 See Accident, Inevitable; Act, 1,
Of God. common carriers, by the general law, are not
See De Melioribus, Damnis; Remittitur, Damnum. excused unless they arise from the act of
DANGrEE. In the law of self-defense
" apparent danger " means such overt, act- The 7 phrases " dangers of the sea," " dangers of nav-
God.
ual demonstration, by conduct and acts, of igation," and "perils of the seas," employed in bills
a design to take life or to do some great of lading, are convertible expressions. ^ See further
Act, 1, Of God; Peril.
personal injury, as makes killing apparently DARE. L. To give ; to transfer. See
necessary for self-preservation. ^ See Imme- Dbdimus.
diate.
Nemo dat qui non habet. No one gives
KS Pars. Contr. 466, 492; American File Co. v. Gar- who does not have.
rett, no U. S. 295 (,18S4), cases.
"3B1. Com. 2»1. Nemo dat quod non habet. No one can
3 Burr V. Duryee, 1 Wall. 574 (1863). give what he does not own.
4 3B1. Com. 319, 125.
' Miller v. Mayor of New York, 109 tJ. S. 395 (1883). 133' [Western
(1870). Transportation Co. v. Do^rner, 11 Wall.
See Broom, Max. 1; 1 Sm. L. C. 244; Sedg. Dam. 29,
111; 20 How. 148; 108 U. S. 331; 109 id. 329; 119 id. 284; = The Morning Mail, 17 F. R. 545 (1883).
32 F. R. 568; 17 Conn. 302; 83 Ky. 218; 97 N. C. 483; 94 s Hill V. Sturgeon, 35 Mo. 313 (1804); 38 id. 323.
N. Y. 139; 86 Pa. 401; 98 id. 84; 113 id. 126; :6 Op. Att.- *Hibernia Ins. Co. ii. St. Louis,. &c. Transportation
Gen. 480; 66 Ga. 69, 308; 71 id. 734; 34, La. An. 312, 496, Co., 17 F. R. 478 (1883).
506, 857, 974, 996; 74 Me. 171 ; 133 Mass. 489; 11 Lea, 137; 'Hazard v. New England Marine Ins. Co., 8 Pet.
59 Tex. 517; 25 Vt. 49. *685 (lt34), M'Lean, J.
'Hamilton v. Vicksburg, &9. E. Co., 110 U. S. 885 ' [Tuckerman v. Stephens, &c. Transpoi-tation Co.,
(1886). 32 N. J. L. 328 (1867); 33 id. 565.
'See Story, Bailm. 471; 8 Kent, 594. ' Dibble v. Morgan, 1 Woods, 411 (1873).
SThickstunu Howard, 8 Blackf. 536 (1847). ' Baxter v. Leland, 1 Abb. Adm. 352 (1848), cases; 3
» Evans v. State, 44 Miss. 773 (1870). Ware, 215; 2 Curtis, 8; 56 Barb. 442; 3 Kent, 30O.
 DARRAIGN 311 DAY

Qui non habet, ille non dat. He who 2. The time between sunrise and sunset;
does net own, cannot transfer, i See Trans- day-time, q. v. •
ferke; Redd are. 3. The business hours of a day.
DARKAIGN . See Deraign. Artificial day, solar day. From the
DAHREIlf. See Continuance, Puis, etc. rising to the setting of the sun. Natural
DARTMOUTH COLLEGE CASE.
day. The whole twenty-four hours; mid-
See Chartek, 2; Corporation.
night to midnight. 1
DATE.2 The primary signification is Daily. " Advertisement in a daily news-
time " given " or specified, — in some way as- paper" (q. V.) may refer to a paper issued
certained and fixed.' every day of the week but one.^
The time when an instrument was made, Day in court. A day set for appearing
acknowledged, delivered, or recorded; the in a court ; a day on which a person may be
clause or memorandum which specifies that heard as to a matter affecting his rights.
fact ; and the time from which its operation It is an old maxim that every one is entitled to his
is to he reckoned.* day in covut. This means that day on which the
cause is reached tor trial in pursuance of the forms
In the ancient form the clause ran : datum apud,
etc., specifying the place and time; thence called the and methods pre*ribed bylaw." S6e Continuance;
Notice, 1.
datum clause, afterward shortened to " date."
False date. Implies a date purposely in- Days of grace. Three additional days in
correct. which to pay a negotiable bill or note after
Misdate. An erroneous date, made so its maturity. See further Grace, Days of.
intentionally or unintentionally. Day's work. See Service, 1.
A date is not a necessary part of a document. An- Day-time. That portion of the twenty-
other day than that named may be shown to be the four hours during which a man's person and
true date, except where there is collusion.' countenance are discernible.'' See Burg-
A deed is considered as executed on the nominal lary.
date, unless the contrary be made to appear; it speaks
from the day of delivery; and it is valid whether it Judicial day; juridical day. A day
bears no date, or has a false or an impossible date, for judicial proceedings ; a day for exercis-
provided the real day when it was given can be estab- ing judicial power ; a court day. Opposed,
lished.• • nan-Judicial, non-juridical day.
The purpose of a date in a bill or note is to fix the Non-judicial days are legal holidays and Sundays.
day of jayment; it such day is indicated, that is suffi- Judicial proceedings in civil matters on such days are
cient.' See Description; Relation, 1. generally void. See Dies, Dominicus, etc.; Holiday;
DAY. 1. The time between one midnight Sunday.
and the next succeeding midnight.' See Peremptory day. A day assigned for a
Night. hearing without further postponement.
The civil day begins and ends at 12 o'clock P. M. See Appearance, 3; Law-dat; Return-day; Ruk-
The word " day," used alone in a statute or conti*act, NiNG Day. Compare Dies.
means, unless restricted to a shorter period, the "In the space of a day all the twenty-four hours
twenty-tour hours." are usually reckoned, the law generally rejecting all

• See 18 Wall. 550; 23 id. 128; 4 Cliff. 311, 360; 71 Ala. fractions of a day, in order to avoid disputes." •
Common sense and common justice equally sustain
388; 100 Mass. 34; 4 Wend. 619.
2 L. datum, a thing given. the propriety of allowing '■ tractions of a day " when-
ever it will promote the purposes ot substantial jus-
s Bement v. Trenton Locomotive Co., 32 N. J. L. 515
(1866); 2 Bl. Com. 304.
' See Orcutt v. Moore, 134 Mass. 48 (1883). 1 See People v. Hatch, 33 III. 137 (1863).
tice."
! Richardson jj.Tobin, 45 Cal. 30,33 (1872).
» 1 Whart. Ev. §§ 976-78, cases; 2 Greenl. Ev. §§ 12-13,
8 Ketohum v. Breed, 66 Wis. 92 (1886), Cassoday, J. ; 81
« 2 Bl. Com. 304, 307; Raines v. Walker, 77 Va. 93 Va. 759.
' Trull V. Wilson, 9 Mass. 164 (1812); 4 Bl. Com. 224.
,, cases; 19 How. 73; 33 Me. 446. i 2 Bl. Com. 141.
' Daniel, Neg. Inst. |§ 63-35, cases; 1 Ames, Bills, etc.,
14.5. 'Be Richardson, 3 Story, 57T (1843); Lapeyre u.
'Pulling V. People, 8 Barb. 385 (1850); Kane v. Com- United States, 17 Wall. 198 (1872); United States v. Nor-
monwealth, 89Pa. 628 (1879); Haines v. State, 7 Tex. ton, 97 U. S. 170 (1877); Burgess v. Salmon, ib. 363
Ap. 33 (1879).
(1878); First Nat. Bank of Cincinnati v. Bm-khardt, lOJ
•Benson v. Adams, 69 Ind. 354 (1879), cases; Hel- id 689(1879): Louisville ti. Portsmouth Savings Bank,
phensiein v. Vincennes Nat. Bank, 65 id. 589 (1879); 3 104 id. 474-79 (1881), cases; 11 F. R. 214; 37 111. 239; C9
Bl. Com. 141. Ind. 353; 28 Pa. 518.
 DE 313 DE

The maxim is now chiefly known by Its exceptions. De bene esse. For the well being : pro-
When private rights depend ijpon it, the courts inquire Tisionally, conditionally. Abbreviated d. b. e.
into the hour at which an act was done, a decree en-
Characterizes an act or proceeding viewed
tered, an attachment laid, or a title accrued.'
When an oflBcer has neglected to note upon a writ as sufficient fOr the time being.
of execution the hour and minute at which the writ The entry of record of the name of an attorney as
was delivered to him, the precise time may he estab- counsel for a defendant is termed an appearance de
lished by evidence." bene esse, when such appearance is not to be conclu-
It has become the rule in the construction of a con- sive unless subsequently ratified.
tract, when the time to be computed is one or more The examination of a witness de bene esse may be
days, weeks or years, to exclude the day of the date had when he is an important witness, and there is
or event, whether by the contract the time is to be danger of losing his testimony from death or* absence.
reckoned from date, from the day of the date, or His deposition (q. v.) may be taken, but not used at
from some act or event. The day is not divided, be- trial unless he has since died, or is abroad or beyond
cause not only is a day a natural unit of time, but it is reach of process.*
a fair presumption that the parties did not intend to De bonis. Of, for, or concerning goods
divide a day, since the time to be computed is made
or property. See phrases under Bona.
up of days as imits of time; and the day is excluded
De cursu. Of course; as a matter of
because to include it would require an act, which, by course.
the contract, was to be done in one day from date, to
be done on the day of the date, which is against the De donis. Concerning grants. See under
apparent intention of the parties. But whenever it is DONtTM.
necessary to divide a day in order to carry into effect De facto. In fact; as a matter of fact.
the intention of the parties, this may be done; and
the rule of excluding the day is not applied when a Opposed, de jure: by right, by legal right or
different intention appears on the face of the contract ; title. See Factum; Government.
and no such general rule obtains when acts are to be De gratia. From favor, indulgence.
done within one or more hours, for example, after the Opposed, dejure: of right.
date of the contract.^
In computing time, days are counted according to De homiue replegiando. For replevy-
the following rules: ing a man. See Replevin, 3.
1. When a contract, a statute, or a rule of court De incremento. Of the increase. See
prescribes a definite number of days within which an Costs.
act must be done (as, make a payment, take an appeal, De injuria. Of wrong. See Replication.
file a plea or pleading, serve a notice), the first day is
excluded and the last day included: the first and last De jure. Of or by right. See De facto;
days are never both ipcluded.^ De gratia.
2. An intervening Sunday is frequently omitted, es- De limatieo inquirendo. For inquiry
pecially when the days are less than a week.^ as to lunacy, q. v.
S. When the last day is' Sunday, or a legal holiday, De medietate linguae. Of half tongue:
the act may be done on the day following — except as
to days of grace, "i ' See further under Time. ' half of each language or nationality. See
Medietas.
See After; Afternoon; At; Between; By; For;
From; On or Before; When; Within; —: Month* De melioribus damnis. Of the better
Time; Year.
damages; of the abler ones the damages.
DE. A Latin preposition denoting: away Where a loss is assessed against several defendants
from, out of, arising from; of, about, con- the plaintiff may elect to claim satisfaction of those
cerning, with regard to ; for, on account of, most able to pay. See Contribution,
because of, by. De mereatoribus. Concerning mer-
chants, q.V.
With adjectives, forms adverbial expressions; as,
de novo, anew. De minimis. See Lex, De minimis, etc.
In compounds, denotes separation, departure, re-
De non apparentibus. See Apparere,
moval: cessation or negation of the fundamental idea; De non, etc.
sometimes, a strengthening of that idea.
De novo. From the first; anew. See
■ Maine v. Gilman, 11 F. R. 216 (188^), cases. Venire, De novo.
= Hale's Appeal, 44 Pa.' 439 (1863). De partitione facienda. For division to
3 Hitchings v, Edmands, 132 Mass. 339 (1882), Field, J. be made. See Partitio.
Ward V. Walters, 68 Wis. 44 (1885), cases.
' See 2 Pars. Contr. 334; 19 Conn. 376; 12 Iowa, 186 De retorno habendo. For having re-
9 N. H. 304; 37 Mo. 574; 28 Barb. 284; 16 Pa. 14. turn; to have a return, q-. v.
' See 31 Cal. 240, 271; 13 Ga. 93; 53 111. 87; 46 Mo. 17
29 Pa. 522; 40 id. 372; 17 Gratt. 109. 'See 2 Daniel, Ch. Pr. Ill; 25 Cent. Law J. 244,679
« See 3 Cush. 137; 27 N. J. L. 68; 20 Wend. 305. (1887), cases.
 DEAD 813 DEATH

De sou tort. F. Of his own wrong. See DEATH. Cessation of life ; extinction of
Tort, 1. poli^cal existence. See Life.
De terris. Out of the lands. Civil death. Extinction of civil rights.
As, a judgment ile terris, for arrears o( dower.' A bankrupt is regarded as civilly dead;' so is an
De una parte. Of one part or party. insolvent corporation, to the extent that its property
See Pars. may be administered as a trust fund for creditors and
De ventre. See Venter. stockholders."
Formerly, if a man was banished or abjured the
De vlcineto. From the vicinage or coun- realm, or entered a monastery, before the law he was
try. See County, 2 ; Vicinity. civilly dead — civilitur viortuus. Then, a monk,likea
DEAD. See Alivb; Animal; Burial; dying man, could make a will, or leave his next of
Death; Freight; Pledge. kin to administer as if he had died intestate. Since,
also, the act determined a lease for life, conveyances
Dead-head. A person other than an
for life were usually made for the term of one's " nat-
officer, agent, or employee, of a railroad or m'al life." *
other company, who is permitted to travel A convict, in the penitentiary, is civilly dead, and
without paying fare.^ See Commerce, Act cannot be sued.*
of 1887, sec. 22, p. 206. Natural death. Death from the unas-
Dead-letter law. See Obsolete. sisted operation of natural causes ; death by
Deadly. See Weapon. visitation of the Creator. Violent death.
DEAP. See Influence; Will, 2; Wit- Death caused by human agency. See Cor-
ness. oner.
A deaf mute who does not and cannot be made to A person who for seven years has not been heard
understand any matter of business, except of the most of by those who wovild naturally have heard of him.
simple character, cannot manage his own affairs or had he been alive, is presumed to be dead ; but the
law raises no presumption as to the precise time of
select an agent to transact them. 3 death. That he died before the end of that period
A statute requii'ed that a stationary bell be rung or
may be presumed, it appearing that he encountered a
a whistle sounded at a railroad ci'ossing, before a train
passed. A deaf mute who saw a train approaching, special peril or came within the range of some im-
as to which no warning was given, attempted to pending or immediate danger which might reasonably
cross the track and was injured. Held, that he could be
dren.expected to destroy life." See Die, Without chil-
not recover damages.^
DEAIi. To traffic ; to transact business ; Death by the hands of justice. The
to trade.5 execution of a person convicted of crime in
Said of a bank, may mean to buy and sell for gain, any form allowed by law. 6 See under Die.
and include sales on commission.^ Death penalty. Punishment by depri-
Dealer. One who trades, buys or sells : ' vation of Ufe ; capital punishment. Death
one who buys to sell again ; ° one who makes sentence. A sentence involving death.
successive sales a business.' Death warrant. An order for the execu-
One who slaughters animals and sells the meat as tion of a person who has been sentenced to
food is not a " dealer " within the meaning of a stat-
ute requiring dealers who buy and sell merchandise punishment by death. <
The manner of inflicting the punishment of death
to take out a license.'" See Peddlek; Retail.
Dealer's talk. See Commekdatio, Simplex, etc. shall be by hanging.'
The language of a death-sent«nce is believed to be
substantially as follows: " A B, having been convicted
' Haven v. Bartholomew, 5" Pa. 126 of the felony with which you stand charged, and of
» [Gardner v. Hall, CI N. C. ii3 (1866). the crime of murder in the first degree [or other capi-
3 Perrine's Case, 41 N. J. E. 410-13 (1886), cases. Run-
yon, Ch.: 95 Am. Law Reg. 776 (1886); ib. 778-80. ' International Bank v. Sherman, 101 U. S. •106 (1879).
» Ormsbee v. Boston, &o. K. Co., 14 R. I. 102 (1883). » Graham v. La Crosse, &c. R. Co., 102 U. S. 161 (1880).
'Vernon v. Manhattan Co., 17 Wend. 526 (1837). M Bl. Com. 133; 2 id. 267; 6 Johns. 118; Mo. R. S. 1835,
'Bates V. State Bank, a Ala. 465-^ (1841); Fleckner
V. United States Bank, 8 Wheat. 349, 351 (1823); 11 Wis. 642. County v. Lawrence, 39 Kan. 161 (1883).
p. *Eice
334.
' Davie v. Briggs, 97 U. S. 638-34 (1878), cases; NeweU
' Berks County D. Bertolet, 13 Pa. 524 (1850). 1.. Nichols, 76 N. Y. 86-90 (1878), cases; Evans v. Stew-
«Norris v. Commonwealth, 27 Pa. 495 (1866); 33 id. art, 81 Va. '.3.3-38 (1886), cases; Doe v. Nepean, 3 Sm.
381.
» Overall v. Bezeau, 57 Mich. 507 (1877), Cooley, C. J. L. C. 510: 1 Greenl. Ev. §'41; 2 Whart. Ev. §§ 1274-78,
cases; 92 Am. Dec. 704-3, cases.
'» State V. Tearby, 82 N. C. 561 (1880); 80 id. 479. See « Breasted v. Farmers' Life & Trust Co., 8 N. Y. 303
also 44 Ala. 29; 79 111. 178; 65 Me. 284; 13 Lea, 282; 21 (1853).
Vt. 484. 'R. S. §6324.
 DEATH 314 DEBET

taj offense], the sentence of the law is, that for this The persons who actually perform the service may
offense you be taken hence to the jail of the county,
be designated as the " day " and the " night " watch.
whence you came, and thence, at such time as the See also Accident, Insurance; Die; Abatement, 4;
governor of the State [or, the President of the United Actio, Personalis; Agent; Burial; Conceal, 1; Dam-
States] may, by his warrant, appoint, to the place of ages; Deceden-t; Declaration, 1, Dying; Deodand;
s execution, and that you be then and there hanged by Donatio; Homicide; Insurance; Mortality; Police,
the nec)£ until you be dead. And may God have mercy 8; Eevivb; Survive. Compare Mors.
upon your soul." DEBAIl. See Bar, 3.
The wording of a recent death-warrant was: DEBATE. See Libertt, 1, Of speech;
Commonwealth of Pennsylvania, , governor Privilege, 4.
of said commonwealth, to , high sheriff of
the county of Allegheny, sends greeting: DEBAUCH. In French, debauche, from
Whereas, At a court of oyer and terminer and gen- the shop : to entice away from work or duty ;
eral jail delivery held at Pittsburgh in and for the to entice and corrupt. Referring to a woman,
county of Allegheny at September session, 1885, a cer- at first meant to seduce, then to seduce and
tain was tried upon a certain indictment
charging him with the crime of murder, and was, on violate : in which twofold sense it is used in
the 13th day of November, 1S85, found guilty of mur-
der in the first degree, and was thereupon, to wit, No- DEBENTTJEE. 1. A custom-house cer-
vember 19, 1885, sentenced by the said court, that he, law.l
the said , be taken thence to the jail of Alle- tificate that an importer is entitled to a draw-
gheny county, whence he came, and thence to the
place of execution at such time as the governor of 3. A bond in the nature of a charge on
this commonwealth by his warrant may appoint, and back.«
government stock, or on the stock of a public
there and then he be halnged by the neck until he be
dead. Now, therefore, this is to authorize and require company.' See Debet.
A security issued by a public (usually, a railway)
you, the said , high sheriff of the county of company, and may be a mortgage of its lands and
Allegheny as aforesaid, or your successor in office, to stock. It is in the form of a promissory note, subject
cause the sentence of the said court to be executed
upon the said between the hours of 10 a. m. to strict regulations as to transfers, and has coupons "
attached for the payments of interest.*
and 3 p. M., on Thursday, the 23d day of February, The word does not admit of accurate definition.
Anno Domini, one thousand eight hundred and eighty- It expresses an acknowledgment of a debt by either a
eight, in the manner directed in the seventy-sixth
corporate body or a large partnership.^
section of the act of general assembly of this com- "You may have mortgage debentures, which are
monwealth, approved the 31st day of March, A. D., charges of some kind upon property; or you may have
1860. entitled an act to consolidate, revise and amend debentures which are bonds. . You may also have
the laws of this commonwealth relating to penal pro- a debenture which is nothing more than an acknowl-
ceedings and pleadings, and for so doing this shall be
ed3:ment of debt, or you may have an instrument like
your sufficient warrant.
this in question, which is a statement by two directors
Given under my hand and the great seal of the State
at Harnsburg this 20th day of January, in the year of that a company will pay." »
DEBET. L. He owes; from debere: de
our Lord one thousand eight hundred and eighty-
eight, and of the commonwealth the one hundred and habere, to have a thing of some one. Com-
twelfth. , pare Assumpsit.
Secretary of the commonwealth. Deta.et et detinet. He owes and with-
Punishment by death is known as "the extreme holds.
penalty of the law. " It is not viewed as an equivalent, The form of the writ of debt is sometimes in the
even in murder, nor as retaliation, but as the highest
debet and detinet, and sometimes in the detinet only:
penalty man can inflict, and tending most to personal
that is, the writ states, either that the defendant owes
security.^ See further Cap; Execution, 3; Punish- and unjustly detains the debt or thing in question, or
ment, Capital.
only that he unjustly detains it. The writ is brought
D^ath watch. Special guard appointed, in the debet as well as in the detinet, when sued by
a few days (perhaps eight to fourteen) before one of the original contracting parties who personally
execution, to observe the actions of a pris-
oner under sentence of death, in order to 1 [Koenig v. Nott, S HUt. 389 (N. Y., 1S59), Daly, F. J. ;
8 Abb. Pr., o. s., 389.
discover and defeat any plan formed or at-
' Act of Congress, 2 March, 1T99, s. 80.
tempt made to effect his escape, and to pre- " [Mozley & Whiteley's Law Diet.
vent him from committing suicide ; also, the * [Brown's Law Diet.]
occasion for taking such extra precaution, ' British India Steam Navigation Co. v. Commission-
and, the number of days during which the ers of Internal Revenue, 44 L. T. 378 (1^1), Grove, J.
See also Be Rogers' Trusts, 1 Drew. & S. 341 (1860).
precaution is exercised.
» 44 L. T. 381, supra, Lindley, J. See Jones, Ey. Sec.
1 4 Bl. Com. 13, 376.

§7a.
 DEBRIS 815
DEBT

gave the credit, against the other who personally in- regard the original, debitum, a thing due or owing,
curred the debt, or against his heivs, if they ai-e bound there is no reason why compensation for a breach of
to the payment; as, by the obligee against the obligor. contract may not be " due," although not reduced to
But if brought by or against an executor for a debt a certain sum. This enlarged sense, at least,, may
due to or from the testator, this, not being his own best answer the intent of the legislature. '
debt, shall be sued for in tlie detinet only. So, also, A sum of money due by contract.
if the action be for goods, or corn, or a horse, the writ It is not essential that the contract be express, nor
shall be in the detinet only, for nothing but a sum of that it fix the precise amount to be paid."
money, for which I (or my ancestor in my name) have That for which an action of debt will lie —
personally contracted, is properly considered my debt.' a sum oif money due by certain and express
Debit. He owes. See under Debt, 2.
agreement. In a less technical sense, any
Debituin. A thing due or owing ; an ob- claim for money ; in a more enlarged sense,
ligation ;a debt, g. v.
Debitum in praesenti, solvendum in futuro. any kind of a just demand.^
In its most general sense, that which is due
An obligation existing in the present, dis- from one person to another, whether money,
chargeable inthe future.
Describes any class of obligations complete at the goods, or services ; that which one is bound
present day, though payable in the future.' to pay to or perform for another.*
Debitum sine brevi. Debt without a writ Standing alone, is as applicable to a sum of money
or declaration. Written also debitum, and promised at a future day as to a sum now due and
payable. The former is a debt owing, the latter a
debit, sans breve; and abbreviated d. s. b. debt due. . A sum in all events payable is a debt,
1. When an action at common law was without regard to the time of payment. A sum pay-
begun by original bill, the allegations In able upon a contingency is not a debt." See Due, 1.
which resembled the allegations in a modern Liability in a borrower to be sued is not essential.'
The idea is that one has bound himself to pay
declai-ation, the action was said to be by bill,
money which he may be compelled to pay.'
or by bill without a writ,— other actions " Whatever is due to a man under any form of obli-
being founded upon an original writ. gation or promise." Coke says that debitum signifies
not only a debt for which an action of debt lies, but,
3. In the practice of several States, a debt
generally, any duty to be yielded or paid.^
confessed by warrant of attorney and en- A fixed and certain obligation to pay
tered of record, either with or without a
money or some other valuable thing, in the
declaration accompanying it. See further
Attohnet, Warrant of. present or in the future. '
Any contract whereby a determinate sum
Nihil, or nil, debet. He owes nothing.
of money becomes due and is not paid, but
The plea which forms the general issue in an
remains in action, is a " contract of debt."
action of debt upon a parol contract.^ In this light the word comprehends a variety of ac-
DEBEIS. See Aqua, Currit, etc.
quisitions, usually divided into debts — of record, by
DEBT. Whatever one owes.* See Debet. special contract, and by simple contract.
1. A liquidated demand. A debt of record is a sum of money which
A sum of money due by certain and ex- appears to be due by evidence of a court of
press agreement.* record ; a debt by specialty, a sum acknowl-
As, by a bond for a determinate sum, by a bill or edged to be due by an instrument under
note.'byin awhich bargain,
specialeases or as rent reserved on a seal ; a debt by simple contract is evidenced
lease: the amount is fixed, specific,
does not depend upon subsequent valuation to set-
tle it. 5 1 Frazer v. Tunis, 1 Binn. 202 (1808), Tilghman, C. J.
Frequently, a sum of money reduced to a "United States v. Colt, 1 Pet. C. C. 146 (1815), Wash-
for
certainty, and distinguished from a claim ington, J.
uncertain damages. a New Haven Saw Mill Co. v. Fowler, 88 Conn. 108

As, in statutes of set-oflE, where there are mutual (1859).

«Kimpton v. Bronson, 45 Barb. 625 (1866), cases; 7
debts' between plaintiff and defendant. . . If we N. Y. 197; 24 id. 290.
» People V. Arguello, 37 Cal. 53.5 (1869).
13BI. Com. 156. « Mayor of Baltimore v. Gill, 31 Md. 390 (1869).
2 13 Pet. 494; 11 Mass. 3T0; 30 Minn. 7; 29 Pa. 151. ' Scott V. City of Davenport, 34 Iowa, 213 (1872).
S3 Bl. Com. 305; Steph. PI. 174. 8 New Jersey Ins. Co. v. Meeker, 37 N. J. L. 301 (1875):
* Kodman i'. Munson, 13 Barb. 197 (1852). Burrill; Bowen v. Hoxie, 137 Mass. 531 (1884);
3 Mete.
53 Bl. Com. 154; McEltresh v. Kirkendall, 36 Iowa, 526; 113 U. S. 463.
326(1873). • [Appeal of City of Erie, 91 Pa. 402 (1879).
 DEBT 316 DEBT

by mere oral testimony or by an unsealed minate contract: but if he agrees for no settled price,
note.' he is liable upon a special "action on the case," ac-
Antecedent debt. See Sectjeity (3), Coir cording to the nature of the contract. ^
The action lies whenever a sum certain is
lateral.
due to the plaintiff, or a sum which can
Mutual debts. Moneys due or owing by
two persons to each other ; debts reciprocally readily be reduced to a certainty — a sum
due. requiring no future valuation to settle its
amount: 2 a sum which can be ascertained
" Mutual debts," " dealing together," and " indebted
to each other," in statutes of set-off, are of the same from fixed data by computation. 3
import. 2 It is not material in what manner the obligation
" Mutual debts " and " mutual credits," in § 5013, was incurred or by what it is evidenced, if the sum is
Kev. St., are correlative expressions. What is a debt capable of being definitely ascertained. Nor is it nec-
ou one side is a credit on the other. In case of bank- essarily founded upon a contract.''
ruptcy only such credits as must in their nature termi- The action lies for money only. On an obligation
nate in debts are the subject-matter of set-off,' g. v. to pay or deliver any other article, covenant is the
Compare Credit, Mutual. remedy, and the recovery is o$ a compensation in
Present or existing, prior, and future damages.* See Assumpsit; Covenant, 2.'
or subsequent debts. See Convetance, 2, Debit. To charge as due or owing; also
Fraudulent; Security, 1. the sum so charged.
Privileged debt. A debt payable before Debtor. One who owes another any-
other debts — in the event of insolvency. thing, or is under obligation, arising from ex-
Results from the character of the creditor, as, a press agreement, implication of law, or the
State or the United States; or form the nature of the pi-inciples of natural justice, to render and
debt,' as, funeral expenses. pay a sum of money to another.^
Priority of payment of debts due to the government The correlative de6teehas been in use."
is founded upon motives of putlio policy, to secure One who is under obligation to discharge some
revenue.*
duty, or to pay damages for its non-performance, is a,
Public debt, k national or State obliga- debtor, as really as one who is under obligation by
tion; a public security; rarely, if ever, the bond to pa.y a sum of money.'
obligation of a town. 5 Joint debtor. One of several persons who
"The validity of the public debt of the United jointly owe a sum of money ; a co-obligor.
States, authorized by law, including debts incurred for See Joint.
payment of pensions and bounties for services in sup-
As to "absconding" and "absent" debtors, see
pressing insurrection or rebellion, shall not be ques- those terms; also, Conceax., 3.
tioned. But neither the United States nor any State A person, without request or assent, cannot make
shall assume or pay any debt or obligation incurred
another his debtor by paying his debt, as, taxes;"
in aid of insurrection or rebellion against the United otherwise, as to honoring commercial paper, as see
States, or any claim for the loss or emancipation of any Accept, 2.
slave; but all such debts, obligations and clauns shall
The rule is that " the debtor must seek the creditor,"
be held illegal and void." » and pay or tender payment of the debt when due."
2. The non-payment of any such definite Indebted. The state of being in debt,
sum of money being regarded as an injury, absolutely, and not conditionally — as is a
the remedy afforded is known as the action
surety or an indorser. i"
of debt or simply " debt : " the form of ac- Implies a debt presently payable; as, in an affidavit
tion to compel the performance of the con- for an attachment.^'
tract. > 3 Bl. Com. 165.
This is the shortest and surest remedy, particularly " Stockwell V. United States, 13 Wall. 542 (1871).
where the debt arises upon a specialty. But if A
1 Mills V. Scott, 99 U. S. 29 (1878) ; 7 Wall. 79, 80.
verbally agrees to pay B a certain price for a certain * Minnick v. Williams, 77 Va. 760 (1883) ; Story, Contr.
parcel of goods, and fails in the performance, an ac-
tion of debt will lie against A; for this is also a deter- ' StanlyCom.
v. Ogden, 2 Root, 268 (1795).
»3B1.
§ 969. 18.
1 [8 Bl. Com. 464-66; 3 id. 154, 166. See 2 Story, 450; ' New Haven Saw Mill Co. v. Fowler, 28 Conn. 108
2 Wash. 385; 11 Ark. 335; 15 Ind. 282; 1 Nev. 589; 40 (1860); 34 Iowa. 213.
N. J. E. 178; 13 Barb. 77; 38 Ohio St, 570; 51 Vt. 86. "Homestead Co. v. Valley E. Co. 17 Wall. 167 (1872);
2 Pate V. Gray, 1 Hempst. 157 (1831). Gurnee v, Bausemer, 80 Va. 872 (1885), cases.
s Libby v. Hopkins, 104 U. S. 307-8 (1881), eases. » Johnston ti. Hargrove, 81 Va. 121 (1883).
< United States v. State Bank, 6 Pet. *3o (1382). '" See St. Louis Perpetual Ins. Co. v. Goodfellow, 9
Mo. 133 (1845).
' Morgan v. Cree, 46 Vt. 786 (1861).
8 Constitution, Amd. XIV, sec. 4. " Trowbridge V. Siokler, 42 Wis. 420 (18';7), cases.
 DECAPITATION 317 DECEIT

Indebtedness. The condition of owing was foolish enough to believe, will not support an
money ; also, the amount owed ; indebtment. action.'
May include an obligation for future payment Formerly the remedy was by a " writ of deceit; "
now, unless otherwise provided by statute, it is by an
equally with that presently due; ^ and maybe by con- action of trespass on the case.
tract or tort.^
Besides the special action on the case there is also
The " indebtedness " that may be created by a city ' an " action of deceit," which gives damages in par-
in excess of a certain percentage on its taxable prop- ticular cases of fraud, principally where one man does
erty includes an agreement of auy kind to pay money
where no suitable provision has been made for the anything in the name of another, by which he is de-
prompt discharge of the obligation, ^ ceived or Injured. But an action on the "case" for
damages, in the nature of a writ of deceit, is the usual
See Accord; Account, 1; Acknowlkdgmbnt, 1; Ad-
minister, 4;Bankruptcy; Certum; Oharqe, 2 (2);
To a '^recovery it is essential that the defendant;
remedy.
Claim; Composition, 3; Contract; Demand; Exemp-
tion; Extinguish; Floating; Fund; Guaranty, 3; (1) actually made a false representation of a material
Incur; Insolvency; Liability; Lien; Merger, 2; fact, by words or acts unambiguous in import; = (2)
knew the falsity, or did not know the truth, of the rep-
Novation; Pay; Penalty; Pre-existing; Prefer-
resentation <— the word "deceit" of itself imports
ence; Prior; Prison; Recognizance; Recovery; Re-
lease; Rescission; Subrogation; Take, 8; Tax, 2; this;* (3) intended that the plaintiff should act upon
Tender, 8. the representation — tbe essence of the injury; '» ' and
th&t the plaintiff: (1) acted upon the representation;
DECAPITATION. See Capital, 1.
(8) to his actual damage ; ' (3) because he was ignorant
DECAY. See Perishable ; Sound, 3 (1). of the falsity of the representation, and believed it to
DECEDENT.* A deceased person whose
estate is being settled. See Administer, 4; be The
true.^defendant or his agent must have been guilty
Creditor, Bill ; Distribution, 2 ; Part, 1 ; of some moral wrong; legal fraud alone will not sup-
Probate ; Residue ; Will, 3. port the action."
The plaintiff must prove representations of mate-
DECEIT. Any device or false representa- rial facts which are false, and which induced him to
tion by which one man misleads another to act; and either that the defendant knew the represen-
tations tobe false, or that, the facts being susceptible
his injury. ^
of knowledge, he represented, as of his own knowl-
A fraudulent niisi-epresentation, by which edge, that they were true, when he had no such knowl-
one man deceives another, to the injury of
the latter.5 It is not only necessary to establish the tellin'g of an
untruth, knowing it to be such, with intent to induce
Deceit practiced to induce one to enter into edge."
the person to whom told to act upon it, but also that
a contract may be active, as where falsehood he altered his condition in consequence, and suffered
and misrepresentation are actually used by damage thereby. If it appears afiSrmatively that al-
one party to deceive the other; or passive, as though he altered his condition, after hearing the im-
where a vendor knows that a purchaser is truth, he was not induced to do it as a consequence,
under a delusion influencing his judgment in butIndida recent it independently, the action fails.'"
case the plaintiff averred that he had
favor of purchasing, and yet suffers him to been induced to purchase the lease, good-will, and
complete his purchase.^ fixtures of a livery-stable, upon false, fraudulent, and
Other examples are: where one sells what is not his deceitful representations by the defendant that he
owned the lease, was in peaceable possession, etc.
own, or sells unwholesome provisions; ' or falsely rep-
resents his credit to a mercantile agency." ' Pasley v. Freeman, 3 T. R. 66 (1789), Buller, J.; ib.
While ever)' deceit comprehends a lie, it is more
than a lie — on account of the view with which it is 63, Ashhurst, J.
' 3 Bl. Com. 165.
practiced, of its being coupled with some dealing, and s Halls V. Thompson, 1 Smedes & Mar. 481 (1843),
of the injury it is calculated to occasion, and does oc-
casion. But a mere lie thrown out at random with- «Gibbsu. Odell, 8 Coldw. 133 (1865), cases; Stone v.
out intention to hurt anybody, and which a plaintiff
Covell, 29 Mich. 363 (1874).
» Farwell v. Metcalf, 61 111. 374-75 (1871), cases.
'Pittsburgh, &c. K. Co. v. aarke, 29 Pa. 151 (1857); • Lord ti. Goddard, 13 How. 810 (1861), cases; Farwell
Law V. People, 87 HI. 393 (1877). V. Metcalf, 61 Dl. 375 (1871), cases; Bigelow, Torts, 31.
' Mattingly v. Wulke, 2 Bradw. 178 (1878), cases. ' Cases ^upra and infra.
ssackett v. New Albany, 88 Ind. 479 (1883); Valpa- »Erie City Iron Works v. Barber, 106 Pa. 125, 138, 140
raiso V. Gardner, 97 id. 6-7 (1884). (1884), cases.
* De-ce'-dent. » Cole V. Cassidy, 138 Mass. 439 (1886), Morton, C. J. ;
sFarwell v. Metcalf, 61 111. 374 (1871), Thornton, J. 117 id. 195; 103 id. 388.
» [Smith, Contr. 808. '0 Ming V. Woolfolk, 116 U. S. 599, 602-3 (1886), cases.
' 3 Bl. Com. 166. Woods, J. ; Southern Development Co. v. Silva, 125 id.
» Jlaton V. Avery, 18 Hun, 44 (1879). 250 (1888); Patterson v. Wright, 64 Wis. 289 (1885).
 DECEM - 818 DECISION

To support an. actton of tort, it was held that the

DECISION". The result of the delibera-
plaintiff must show: that the representations were
tions of one or more persons, oificial or un-
untrue, were known by the defendant to be untme,
were calculated to induce him to act, and he, believ- official; the jvidicial determination of a ques-
ing them, was induced to act accordingly; that the tion.
representations must have been both false and fraud- Somewhat more abstract or more extensive than
ulent; that a positive statement of a falsehood, or the "judgment" or "decree," ' gq. o.
suppression of a material fact which the defendant The "decision" of a court is its judgment; its
ought to have known, would constitute the falsity ; " opinion " is the reason given therefor. The former
that if any essential point, requisite to maintaining the is recorded upon its rendition, and can be changed
action, was wanting, recovery could not be had ; and only through an application to the court. The latter
that the defendant, after judgment against him, was is the property of the judges, subject to modification,
not entitled to an exemption of his property from until transcribed in the records.*
execution for debt. 1 Decide. Includes the power and right to
Where the fraudulent concealment or misrepresen- deliberate, to vreigh the reasons for and
tation ismade by the vendor of land, as to its nature,
quality, quantity, situation, or title, the representa- against, to see which preponderate, and to be
tion must be in reference to a material thing unknown governed by that preponderance.'
to the vendee from want of examination, or from Judicial decision. The determination
want of opportunity to be informed. And if the
of a court, in a cause. Extra-judicial de-
buyer trusts to representations not calculated to im-
cision. Adetermination beyond the limits
pose upon a man of ordinary prudence, or if he neg-
lects means of information easily within his reach, he of authority ; a ruling which transcends ju-
must suffer the consequences of his own folly and
risdiction.
credulity. The vendee must show, further, that some A decision determines no more than what is neces-
deceit was practiced for the purpose of putting him sary to the case in hand, — does not go beyond the
off his guard, or that special confidence was reposed limits of what is required by the, exigencies of the case. *
in the representations of the vendor, and that the con- At most, decisions are only evidence of what the
tract was made upon the strength of that confidence. laws are, and are not of themselves laws. They are
To support the action there must be fraud as distin- often re-examined, reversed, and qualified by the
guished from mere mistake.'' courts themselves, wljenever found to be defective,
Where the question is as to misrepresentation of ill-founded, or otherwise incorrect. The laws of a
facts peculiarly within the defendant's knowledge, State are understood to mean the rules and enact-
" the mere fact that the person deceived to his hurt ments promulgated by the lemglative authority
had means of learning the truth, had he made diligent thereof, or long established local customs having the
inquiry, is not necessarily fatal to the right to re- force of law.=
cover." 3 Decision, rules of. The laws of the sev-
Thus, a distinct statement by the seller of a patents
eral States, except where the Constitution,
right that he owned the right, knowing it to be false,
and with intent to deceive the buyer, and on which treaties, or statutes of the United States
statement the buyer acted to his injury, will sustain otherwise require or provide, shall be re-
an action, even if the buyer might have discovered garded as rules of decision in trials at com-
the fraud by searching the records of the patent mon law, in the courts of the United States,
ofaoe.4 in cases where they apply. 6
See Age, Full; Caveat, Emptor; Cokceal, 5; Con- This embraces the statute and common law of a
spiracy; Estoppel; Prospectus; Warranty, 3.
Compare Dolus; Fraud; Pretense. State, including statutes relating to the law of evi-
DECEM. See Tales. dence in civil cases at common law.' In criminal
cases the laws of the State in existence in September
DECENT. See Indecent. 3J, 1789, are the rules of decision.'
DECEPTION. 1. In the sense of a false
representation to induce credit or confidence, 1 See Abbott, Law Diet.; 26 Moak, 449; 55 Vt. 583.
= [Houston V. Williams, 13 Cal. 27 (1859), Field, J.
see' Deceit ; Estoppel ; Fraud, Actual. > Commonwealth v. Anthes, 5 Gray, 263 (1855). See
2. In the sense of stratagem to discover 43 Md. 629; 16 Moak, 86.
crime, see Communication, Privileged, 1; *Hauenstein v. Lynham, 100 U. S. 490 (1879); Trade-
Decoy. Mark Oases, ib. 96 (1879); Wright v. Nagle, 101 id. 796
(1879); State u Baughman, 38 Ohio St. 469 (1882); 10
1 Cox V. Highley, 100 Pa. 249, 353 (18S3). See also 1 Oreg. 114.
Chitty, Pr. 833; Bigelow, Torts, 9; Cooley, Torts. » Swift V. Tyson, 16 Pet. 18 (1842), Story, J. ; Nat. Bank
2 Clark V. Edgar, .13 Mo. Ap. 352 (1883). of the Republic v. Brooklyn City, &o. E. Co , 102 U S
3 Arthur V. Wheeler & Wilson Manuf. Co., 13 Mo. 39 (1880); 1 Bl. Com. 69.
Ap, .940 (1883). •E. S. § 721: Act 24 Sept. 1789, § 34.
* David V. Park, 103 Mass. 503 (1870), cases; Watson ' M'Niel V. Holbrook, 13 Pet. *89 (1838).
V. Atwood, 25 Conn. 320 (1856). 8 United States v. Eeid, 12 How. 861 (1851).
 DECISORY 319 DECLARATION

Kules of State practice acted upon by the Federal The maxim contemplates points actually Involved
courts, as oblisatory upon them, are also included — and argued. The results established, not the reasons
they have the efficacy of rules adopted by express assigned, make the case an authority. In considering
order of those tfourts.^ the soundness of the doctrine enunciated courts of con-
Not included are decisions upon general principles cinrent or of foreign jurisdiction pay regard to the
of law, for the reasons already given," thoroughness of the arguments of counsel, the ability,
The provision does not apply to proceedings in learning, and jurisdictional authority of the court, and
equity, or in admiralty, or to criminal offenses against the care and research bestowed in preparing the opin-
the United States. The Federal com-ts follow the de- ion. The meaning, moreover, is to be drawn from
cisions of the highest court of a State on questions the opinion as a whole.
which concern merely the constitution or laws of that The maxim is not applied to a case decided con-
State; also, a course of those decisions, whether trary to principle, nor to a decision considered merely
founded on statutes or not, which has become a rule as a judgment between the immediate parties, nor to
of property within the State ; also in regard to rules of decisions upon scientific theories, as, of insanity.'
evidence in actions fit law; also in reference to the
See Comity, Judicial; Courts, United States, "Fed-
common law of the State, and its laws and customs of eral question," page 277.
a local character when established by repeated decL"*- DECIiARANT. See Declare. 4.
lons.^ See CoMrrv, Judicial ;.Procedtjre. DECLARATIOIf. 1. An assertion or
English decisions. See at end of Stat- statement explicitly made.
ute, 2.
Any statement of material matters of fact
Ctompare Decisum. See Comity, Judicial ;
sworn to and subscribed is a written declara-
Dictum, 2; Impair; Opinion, 1 (2); Report,
1(2). A declaration which accompanies and qualifies an
DECISORY. See Oath, Decisory. act is tipart
on. ^ of it; but when made of a thing that is past
DECISUM. L. Cut off, settled, decided ; it is mere hearsay.^
a decision, a precedent. Made contemporaneously, and by a person inter-
ested in the matter, a declaration is admissible as
Stare decisis, et non quieta movere.
original evidence: (1) when the fact of the making is
To stand by precedents and not to disturb in question; (2) when the inquiry is as to expressions
what is settled : follow decided cases ; adhere of bodily feehnga — their existence or nature;* (3) in
to j)recedents. Shortened to stare decisis. cases of pedigree, » q. v. ; (4) when part ol the res gesfce.'
Once a point of law is firmly settled by a decision, The declarations of an injured party, made after
that decision rules*fcke cases subsequently arising. the injury has happened or the cause of suffering oc-
curred, with regard to the facts of the injury or the
When a court has once^MJown a principle of law
cause of the suffering, may not be shown, in an action
as the
of applicable
stabilitytoand a certSLijmKBe'ot
certaiSgr of thefacts, forwill
law it the apply
sake for damages by such person ; nor may his declarations
that principle to all future cases where the facts are with regard to past suffering or pain, or past condi-
substantially the same.* tions of body or mind, be shown. Some authorities
Stability and certainty in the law are of the first seem to oppose the last proposition, especially where
importance. The certainty of a rule is often of more the declarations are made to a physician or surgeon
importance than the reason of it.' while examining the party as a patient. Declarations,
Where there has been a series nf decisions by the however, with regard to present suffering or present
condition of the body or mind may generally be shown
highest tribunal, the rule stare decisis is regarded as
impregnable — except by legislative enactment." This by any person who heard them ; but there are authori-
is true in a special sense where the law has become ties also seemingly opposed to this projposition.'
settled as a rule of property, and titles have been ac-
quired on the strength thereof.' ' See generally 25 Am. Law Reg. 745-57 (1886), cases;
77 Va. 24-25; 68 Ga. 797; 100 Ind. 4i2; 41 N. J. E. 479; 5
' United States v. Douglass, 2 Blatch. 214 (1851); The Johns. 268; 22 Barb. 97, 106; 9 Oreg. 470; 10 id. 66; 78
Mayor v. Lord, 9 Wall. 413 (1869). Pa. 500; 87 id. 286; 68 Wis. 138, 151, 194; 63 id. 138, 151,
"Swift V. Tyson, ante. See generally Watson v. 194; 1 Bl. Com. 69; 1 Kent, 477; Cooley, Const. 57;
Tarpley, 18 How. 5S0 (1865); Thompson v. Phillips, Wells, Res. Adj., &c. 527, 583.
Baldw. 246 (1830); Sonstiby v. Keeley, 11 F. R. 580-^1 a United States i'. Ambrose, 108 U. S. 340 (1883), Mil-
(1882), cases; Burt v. Keyes, 1 Flip. 61 (1861); 112 U. S. ler, J.: B. S. §6392.
255.
"Long V. Colton, 116 Mass. 416 (1876); Bender v. Pit-
' Bueher v. Cheshire E. Co., 125 U. S. 555 (1888), cases. zer, 27 Pa. 835 (1856).
Miller, J. « Travelers' Ins. Co. v. Mosley, 8 Wall. 404 (1869);
' Moore v. Albany, 98 N. Y. 410 (1885), Earl, J. Eoosa II. Boston Loan Co., 138 Mass. 439 (1882), cases;
» N. W. Forwarding Co. v. Mahaffey, 36 Kan. 157 Commonwealth v. Felch, ib. 23 (1882); 1 Greenl. Ev.
(1887): White v. Denman, 1 Ohio St. 115 (1E53). §102; 1 Whart. Ev. § 268.
= Harrow v. Meyers, 29 Ind. 470 (1868); 88 id. 668. » 1 Greenl. Ev. Sii 103^; 1 Whart. Ev. §§ 20^26. .
'Beed v. Ownby, 44 Mo. 206 (1869); Hihn v. Courtis, • 1 Greenl. Ev. S§ 108-9, 111-14 ; 1 Whart. Ev. §§ 258-63.
31 Cal. 402 {18C6); Pioche v. Paul, 22 td.llO (1863). ' Atchison, &c. B. Co. v. Johns, 36 Kan. 781-83 (1887),
 DECLARATION 330 DECLARATION

After one's death his former declarations are ad- the absence of all hope of avoidance ; when
niissible as secondary evidence when on a matter:
he has despaired of life and looks to death as
(1) of general interest; ^ (2) of ancient possession;^
(3) against interest — before the controversy arose, inevitable and at hand.'
and it was the deceased's duty to know the facts; ^ An exception to the rule rejecting hearsay evidence
(4) when in the nature of a dying declaration. is made in the case of dying declarations. The gen-
A declaration by an agent binds his principal, and eral principle on which they are admitted is, they are
by a partner binds his copartner, when made during declarations made in extremity, vrhen the party is at
the continuance of the relation and while the particu- the point of death, when every hope of this world is
lar transaction is pending.* gone; when every motive to falsehood is silenced, and
After a person has made a sale 'of personalty he the mind is induced by the most powerful consider-
stands as a stranger to the title, and his declaration ations to speak the truth. A situation so solemn is
respecting the title is not binding on the vendee. Such considered as creating an obligation. eq[ual to that im-
deplaration is admissible only when it appears from posed by a positive oath administered in a court of
independent evidence that, both vendor and ' vendee The person must have been qualified to testify, and
were engaged in a common purpose to defraud the
justice. 2
the declaration must be complete. The competency
creditors of the vendor, and that the admission had
such relation to the execution of the purpose as to of the evidence is to be determined by the court; its
constitute part of the res gestcB.^ weight by the jury. If resting in memory, the sub-
The declaration of a conspirator, to bind his fel- stance of all that was stated may be given. The decla-
lows, must be made while acting in furtherance of the ration may be by signs. ^
Declarations of the deceased are admissible upon a
common design.* See Conspiracy.
Declaration of intention. A formal, trial for murder only as to those things as to which he
would have been competent to testify if sworn as a
solemn asseveration by an alien that it is his witness in the cause: they must relate to facts only,
bona fide intention to become a citizen. See not to mere matters of opinion. It is essential to the
Naturalization. admissibility of such declarations, and it is a primary
Declaration of Eights. See Right, 8, fact to be proved by the party offering them, that
they were made under a sense of impending death.
Declaration, etc.
But it is not necessary that they be stated at the time
Declaration of trust. An acknowledg- to be so made; it is enough if it satisfactorily appears
ment that property, the title to which the in any mode that they were made under that sanc-
declarant holds, belongs, in whole or in part, tion, whether it be directly proved by the express lan-
to another ; also, the writing in which such guage of the declarant, or be inferred from his evident
danger, from the opinions of the medical or other at-
acknowledgment is made. See Trust, 1. tendants expressed to him, or from his conduct or
Dying declaration. A statement of a other circumstances of the case. Such declarations
must relate to the circumstances of the death; they
material fact concei'ning the cause and cir-
cannot be received as proof when not connected as
cumstances of a homiicide, made by the vic-
tim under the solemn belief of impending res gestce with the death.-*
See further Admission, 2; Estoppel; Hearsay;
death. ^ Parol, 2, Evidence; Res, Gestse.
Such declaration as is made by the party, 2. A statement in legal form of the plaint-
relating to the facts of the injury of which iff's cause of action.s
he afterward dies, under the fixed belief and The plea by which a plaintiff in a suit at
moral conviction that his death is impending law sets out his cause of action, as the word
and certain to follow almost immediately, " complaint " is in the same sense the tech-
without opportunity of repentance, and in nical name of a bill in chancery.6
The first pleading filed in a suit is the declaration,
cases, Valentine, J. See generally 22 Cent. Law J.
nxirratio, count; anciently called the " tale." In this
509 (1S86), cases. the plaintiff sets forth his cause of complaint at length ;
1 1 Greenl. Bv. §§ 128-40; 1 Whart. Ev. §§ 185-200, 252.
2 1 Greenl. E*. §§ l.Sl-46; 1 Whart. Ev. § 201. 1 Starkey v. People, 17 111. 2i(1855). cases. '
s 1 Greenl. Bv. §§ 147-55; 1 Whart. Bv. §§ 236-37. "Rex V. Woodcock, 2 Leach, Cr. Cas. 567 (1789),
■• 1 Greenl. Ev. §§ 112-14, 174^70; 2 Whart. Ev. § 1198. Eyre, Ch. B. ; 1 Greenl. Ev. § 156.
s Winchester Manuf. Co. v. Creary, 116 U. S. 165 a 1 Greenl. Ev. §§ 151-61 6; Whart. Cr. Ev. § 293;
(1885); Jones v. Simpson, ih. 611 (1886); Robertson v. People V. Shaw, €3 N. Y. 40(1875); Walker v. State, 89
Pickrell, 109 id. 616 (1883); Moses v. Dunham, 71 Ala. Ark. 226 (1884).
177 (1881); Roberts v. Medbery, 133 Mass. 101 (1882), * People V. Taylor, 59 Cal. 640, 645 (1881), cases. See
cases; Scheble v. Jordon, 80 Kan. 854 (1863); Barbour generally 19 Cent. Law J. 138-39 (1884), cases; 1 Kan.
V. Duncanson, 77 Va. 76 (1883); Frink v. Roe, 70 Cal. Law J. 134 (1885), cases.
316-19 (1886). " Smith V. Fowle, 12 Wend. 10 (1834), Savage, C. J,
« 1 Greenl. Ev. § 111; 2 Whart. Ev. §§ 1205-6. "United States v. Ambrose, 108 U. S. 340
Miller, J.
' People V. Olmstead, 30 Mich. 436 (1874).
 DECLARATION 321 DECOY

b being, indeed, only an amplification of the original Deolare.i To announce clearly as fact or
mt (g. V.) upon whicti his action is founded, with the truth.
dditional circumstances of time and place when and
1. To aver, affirm, allege in express terms :
rhere the injury was committed.*
A declaration contains a succinct statement of the as, to declare a person innocent or guilty.
)laintiff's case, and genM*aUy comprises the following 2. To announce, pronounce, decide : as, to
larts: (1) The title and the date — the court, day and declare a contract Ulegal or void, or a statute
rear, term, and number of the case; ()8) the venue — unconstitutional.
State and county; (S) the commencement — A B, by
3. To state or set forth as a cause of action.
lis attorney or in person, complains of C D, for that,
leretofore, etc.; (4) the body — which consists of: (a) 4. To proclaim as due : as to declare a divi-
he inducement (g. v.) — introductory matter; (b) the dend, q. V.
iverments — allegations of performance of precedents "In no part of the application did the assured
Dy the plaintiff; (c) the counts — statements of injuries promise that he would not practice any pemicious
oy the defendant; (5) the conclusion — "to the dam- habit. He ' declared ' that he would not. To ' declare '
ige of plaintiff dollars; and thereupon (or where- is to state, assert, publish, utter, announce, announce
fore) he brings suit." clearly some opinion or resolution; while to * promise '
See further Amendment, 1; Consolidate, Actions;
is to agree, ' pledge one's self, engage, assure or make
□ocNT, 4; Cure, 2; Damages, General; Description, 4;
sure, pledge by contract.' The assured declared, as a
E'LEADINO; Sdit, 1. matter of intention, that he would not practice any
Declaratory. Rendering clear what was pemicious habit. Was this declaration of future in-
before obscure: giving a clear statement; tention false? There is no allegation, much less proof,
making certain what might remain in doubt ; that it was so. The assured might well have intended
to adhere to his declaration In the most perfect good
explanatory; elucidatory: as, a declaratory
faith, and yet in a moment of temptation have been
covenant, act, statute, law.
overcome by this insidious enemy "= — intoxicating
The " declaratory part of the law " is that liquor, from the use of which the assured was attacked
with delirium tremens and died.
portion whereby the rights to be observed
and the wrongs to be eschewed are clearly " Declare and afBnn " may be equivalent to prom-
defined and laid down.' ise and affirm.'
For a judge to "declare the law," is for him to
A "statute declaratory" of the common
chaise the law arising upon the evidence.*
law states what that law is, as where a cus- 5. To determine what shall constitute ; to
tom has almost fallen into disuse or become define.
disputable.* Declaring that a certain act shall constitute an
A declaratory statute removes uncertainty as to the offense, is " defining " that offense."
rule of law when decisions or prior enactments con- Declarant. 1. One who states a thing as
flict. It may elucidate existing common or statute
law. a fact ; he who asserts a thing for the truth.
2. One who avers the truth of a matter as
Magna Charta was for the most part declaratory of
the principal grounds of the fundamental laws of the basis of a cause of action. See Declara-
England.' tion, 2.
A large portion of our modem codes is but declara- DECOEATIOW DAY. See Houdat.
tory of the common law as expounded by the courts." DECOY. " Decoy letters " are, ordinarily,
Statutes declaratory of the meaning of former acts
are not uncommon. By the courts they are regarded letters prepared and mailed for the purpose
with' respect, as expressive of the legislative opinion, of detecting criminals.
and, so far as they can act upon subsequent transac- It is no objection to a conviction upon evidence pro-
tions, they are of bindmg force. But they cannot duced by means of a decoy letter that the prohibited
operate to disturb rights acquired before their enact- act was discovered by such a letter addressed to a
ment, or to impose penalties for lawful acts done person who had no actual existence. There is a class
before their passage. The construction of an existing it
of cases in respect to larceny and robbery in which
y
Statute is a judicial function.' See Declare. is held that when one person procures, or originall
be
induces, the commission of the act the doer cannot
the
•3 Bl. Com. 293; 5^hns. 435. convicted -because the taking was not against
will of the owner. Many frauds upon the postal,
s See 1 Chitty, H. 356; 7 Ark. 382; 12 Wend. 10.
» 1 Bl. Com. 54.
< 1 Bl. Com. 86. 1 L. declarare, to make clear.
« 1 Bl. Com. 127. ^Knecht V. Mutual Life Ins. Co., 90 Pa. 121 (1879),
» Cincinnati City V. Morgan, 3 Wall. 293 (1865). Paxson, J.
'Stockdale t,. Atlantic Ins. Co., 20 Wall. 340 (1873); > Bassett v. Denn, 17 N. J. L. 433 (1840).
Koshkonong v. Burton, 104 U. S. 678 (1881); Salters v. 4Crabtree v. State, 1 Lea, 270 (1878).
Tobias, 3 Paige, 344 (1832). » United States v. Arjona, 120 U. S. 488 (1887).
(21)
 DECREE DECREE
323

revenue, and other laws, can effectually be discovered Like a judgment at law, it is the sentence pro-
only by means of decoys." nounced by the court upon the matter of right be-
Where the guilty intent to commit crime hag been tween the parties, and is founded on the pleadings and
formed^ any one may furnish opportunities or even proofs in the cause. 1 See Judgment.
lend assistance to the criminal, to expose him. . . A draft of a decree made by the judge for conven-
But no court will countenance a violation of positive ience, that counsel might see in a general way what
law or contrivances for inducing a person to commit a decree he was prepared to enter, cannot be considered
crime.2 a decree; and in such case the word " decree" on the
Exceptions to the principle exist in two cases: (1) clerk's docket cannot amount to an entry of the paper
Where it is a condition to an ,offense that it should be as a decree. The word may mean "decree to be
" against the will " of the party injured, as in prosecu- entered," or "stands for decree," as well as decree
tions for rape, highway robbery, and assaults not of- " entered." ^
fenses against the public peace, there must be an Decrees in equity operate only upon the person.^
acquittal when it appears that the party alleged to be Decretal. In the nature of a final decree.
Injured invited the commission of the offense. (2) When an " order " (which is interlocutory, and made
Where there are physical conditions of an offense in- on motion or petition), in an event resulting from a
consistent with a trap, so that these conditions can- direction contained in it, may lead to the termination
not exist where there is a tjrap, the defendant must be of the suit in like manner as a decree at the hearing, it
acquitted; as when the door of a house is opened by
its owner to give a burglar entrance. is calleij a " decretal " order.*
Interlocutory decree. A decree which
Judge Benedict, in Urdted States v. Bott, 11 Blatch.
848 (1873), and Judge Drummond, in Bates v. United directs an inquiry as to a matter of law or
fact preparatory to a final decision. Final
' States, 10 F. E. 92 (1881), decided that it is no defense
to an indictment under Eevised Statutes, sec. 3993 (act decree. A decree which finally decides and
of July 13, 1876), for sending an obscene book by mail, disposes of the merits of the whole cause, and
that the book was sent to a detective who gave a reserves no further question or direction for
fictitious name. Contra, United States v. Wliittier,
the future judgment of the court, so that it
supra. 3
A " decoy " or " test " letter should get into the mail will not be necessary to bring the cause again
in some of the ordinary ways provided by the postal before the court for decision.5
authorities, and as part of the " mail matter.'! ' A decree is " interlocutory " when it finds the gen-
DECEEE.5 The. decision, judgment, or eral equities, and the cause is retained for reference,
sentence of a court of equity, admiralty, feigned issue, or consideration, to ascertain some mat-
probate, or divorce .iurisdiction. ter of fact or law when it again comes under the con-
sideration ofthe court for final disposition.'
A sentence or order of a court of equity,
A decree is " interlocutory " which leaves anything
pronounced on hearing and understanding to be done to afford completely the relief contem-
all the points in issue, and determining the plated. Such a decree may always, in a pending
cause, on a rehearing, be altered at the sound discre-
right of all the parties to the suit, according
tion of the chancellor, however great the lapse of
to equity and good conscience.*
A judgt^ent in a suit, equitable in nature, A decree is "final'* which finally disposes of the
time.'
rendered by a court exercising equitable subject of litigation so far as the court making it is
concerned. . It is the last, decree necessary to
powers.' '
give the parties the full and entire benefit of the
judgment. . . A decree is not the less final because
' United States v. Whittier, 5 Dill. 39-11 (1878), cases,
Dillon, Cir. J. some further order may become necessary to carry it
= Ibid., 4.5, Treat, J. into effect."
» Note by Francis Wharton, Bates's Case, 10 F. E. 07- When'the decree decides the right to the property
100, cases. See also note to Speiden v. State, 3 Tex. in contest, and directs it to be delivered up, or to be
Ap. 1^6 (1871), in 30 Am. Eep. 129, cases; Saunders v.
People, 38 Mich. 222 (1878); People v. Collins, 53 Cal. 1 Eowley v. Van Benthuysen, 16 Wend. 383 (1836).
185 (1878); State u. Jansen, 22 Kan. 498 (1879), cases; ''Fairbanks v. Amoskeag Nat. Bank, 32 F. E. 573
Commonwealth v. Cohen, 127 Mass. 282 (1879); Wright (1887), Colt, J.
7). State, 7 Tex. Ap. 574 (1880); People v. Noeike, 94 = Wilson V. Joseph, 107 Ind. 491 (1886), cases: 26 Am.
N. T. 137 (1883); 19 P. E. 39; 1 Bish. Cr. L. § 262; 25 Alb. Law Eeg. 48 (1887); ib. 50-54, cases.
Law J. 184 (1882); 15 Irish L. T. 683. * [Brown, Law Diet.: 22 Mich. 201.
' United States v. Eapp, 30 F. E. 822 (1887), Neu- '[Beebe v. Eussell, 19 How. 285 (1856), Wayne, J.;
man, J. ' Whiting V. Bank of United States, 13 Pet. 15 (1839).
' E. deeretum: de cemere, to decide literally, to "Kelley v. Stanberry, 13 Ohio, 421 (1844).
separate.
« 2 Daniel, Ch. Pr. 986. 77 'Wright
id. 806. V. Strother, 76 Va. 857, 869 (1882); ib. 69, 163;

' See461.
Com. McGarrahanu. "Maxwell, 28 Cal. 85 (1865); 3 Bl. s Mills V. Hoag, 7 Paige, 19 (1827),' Walworth, Ch.
Cited, 19 How. 285; 10 Wall. 687. See 10 Paige, -131.
 833
DECREE DEDICATION

sold, 01' that the defendant pay a sum of money to the the final decree is made— which maybe against the
complainant, and the complainant is entitled to have
such decree carried immediately into execution, the The court will decree what is proper upon the state-
plaintiff."
decree must be regarded as a "final" one to that ments in the bill assumed to be true."
extent.! When a bill contains a joint charge against several
"The current of decisions fully sustains the rule defendants one of whom makes default, the correct
laid down by the late Chief Justice," ^ in the foregoing mode of proceeding is to enter a default and a formal
case. decree pro confesso against such one, and proceed
It is not unusual in courts of equity to enter decrees with the cause upon the answers of the other defend-
determining the rights of parties, and the extent of ants. The defaulting defendant has lost his standing
the liability of one party to another, giving at the in court: he is not entitled to service of noticesj nor
same time a right to apply to the court for modifica- to adduce evidence, nor to be heard at the final hear-
tion and directions. It has never been doubted that ing — he cannot appear in any way. If the suit should
such decrees are "final." They are all that is neces- be decided against the complainant on the merits, the
sary to give to the successful party the full benefit of bill will be dismissed as to all the defendants alike —
the judgment.' the defaulter included; but if in the complainant's
A "final decree" conclusively settles all the legal favor he will be entitled to a final decree against all.
rights of the parties involved in the pleadings.' See A final decree on the merits against the defaulting de-
further Final, 3. fendant alone, pending the continuance of the cause,
A final decree in equity may be modified or set Yould be incongruous and illegal."
aside: by an appeal within the time prescribed by A final decree affirmed by the highest corni; is con-
law; by a bill of review, filed within such time, charg- clusive as between the parties,' and as binding as a
ing error apparent upon the record ; and by an origi- judgment at law.' When there are no words of quali-
nal bill charging fraud or newly discovered evidence.' fication indicating a privilege to take further proceed-
Decrees are also classified as: decrees by ings, it wUl be presumed to have been rendered upon
default, against parties who do not appear, the merits."
in which case the plaintiff takes such decree The language of a decree is construed with refer-
ence to the issue put forward by the prayer for relief
as he can stand by ; &ecrees by consent, in and the other pleadings, and which these show it was
which the form depends upon agreement; meant to decide.' See Equity; Eelief, 2; Review, 2;
Term, 4.
decrees pro confesso, by admission, in which
the form depends upon the case made by the DECREPIT. A " decrepit person " may
bill — as see below ; and decrees on the hear- mean one who is disabled, incapable or in-
ing, which vary with the nature of the suit competent, from physical or mental weak-
ness or defects produced by age or other
and the relief prayed for.^
A bill to " suspend a decree " seeks to avoid cause, to such an extsnt as to render him
or suspend the operation of the decree. A comparatively helpless in a personal conflict
with one possessed of ordinary health and
bill to " carry a decree into execution " lies
when, from any cause, without further aid, strength. 8
a decree cannot be executed. DEDICATION.^ Appropriation to pub-
A decree taldng a hill pro confesso, or in default of lic uses of some right or property : as, the
an answer, is intended to prepare the case for final dedication of a highway, landing, square,
decree. Its effect is lilte that of a default at common
ad- park, land for school purposes; the dedica-
law, by which the defendant is deemed to have The
mitted all that is well pleaded in the declaration. tion of an invention, or of a literary or mu-
matters in the biU do not pass in rem judicatam until sical composition.
> Eussell V. Lathrop, 122 Mass. 302-3 (1877), cases; At-
•Forgay r. Conrad, 6 How. 204 (1848), Taney, C. J.; torney-General V.Young, 3 Yes. Jr. 209 (1796), cases;
Winthrop Iron Co. v. Meeker, 109 U. S. 183 (1883); Dis- Rose V. Woodruff, 4 Johns. Ch. *547 (1820), cases.
trict of Columbia v. Washington Market Co., 108 id. "Thomson v. Wooster, 114 U. S. 104, 110-14, 119
842 (1883); Parsons v. Robinson, 122 id. 114-16 (1887). (1SH3), cases.
"Thomson v. Deaa, 7 Wall. 346 (ISUS), cases. Chase, s Frow V. De La Vega, 15 Wall. 5.-)4 (1878), Bradley, J.
Chief Justice. ' Re Howard, 9 Wall. 175, 182 (1869); Lyon v. Perui,
sStovall V. Banks, 10 WaU. 587 (1870), Strong, J.; 2 125 TJ. S. 702 (1888), cases.
Daniel, Ch. Pr. 641. » Pennington v. Gibson, 16 How. 70 (1853).
« French v. Shoemaker, 12 Wall. 98 (1870). See also »Durant v. Essex Company, 7 Wall. 109 (1808), oases.
70 Ala. 571 ; 34 Ark. 130; 9 Fla. 47; 105 111. 26; 3 Md. 505; 'Graham v. La Crosse E. Co., 3 Wall. 704 (1865);
22 Mich. 201; 2 Miss. 326; 10 Nev. 405: 12 Johns. 508; 14 Carneal v. Banks, 10 Wheat 181 (1825); 1 Story, Eq.
Wend. 542; 1 Ohio St. 520; 1 Heisk. 526; 1 Wash. T. 174. S§ 28, 437, 4.39.
6 Huntington v. Little Eock, &o. E. Co., 3 MoCrary, 8 Hall V. State, 16 Tex. Ap. 11 (1884), Willson, J.;
585 (1882). Penal Code, Art. 496.
•[Abbott's Law Diet.] »L. dedicare, to devote: dicare, to declare.
 DEED
DEDICATION 3S4

1. The act of giving or devoting property tions Of public lands for school purposes does not
to some public use.' Wlience dedicator. work a dedication, in the strict sense. ^
See Easement; License, 1; Squahe; Use, S, User;
An appropriation of realty by the owner Water-mark.
to the use of the public, and the adoption 2. On dedicating an invention to public
thereof by the public ; as, the dedication of use, see Patent, 2 ; Use. 3, Public.
soil for a highway. 2 3. Publishing an uncopyrighted work is a
Has respect to the possession of the land, not to the
permanent estate. = dedication of such work to the public.^ See
Copyeight; Drama.
Express, when explicitly made by oral
declaration, deed, or vote ; implied, when DEDIMTJS.- L. We have given. See Dare.
A commission to take testimony, the full
there is acquiescence in a public use.*
Made according to the common law or in pursuance name of which is dedimus potestatem,
of statute. A statutory dedication operates by way we have given power.
of a grant; a common-law dedication, by way of es- In English practice the writ issues out of chancery,
toppel in pais. May also be made in proesenti to be and empowers the person named to perform desig-
accepted in futuro.^ nated judicial acts: as, to administer oaths, take an-
Is a conclusion of fact, from all the circumstances swers in equity suits, examine witnesses.^
of each case.* , With us the term is seldom, if ever, used in any
An appropriation of land to some public other sense than that of a commission to take testi-
mony by deposition, q. v.
use, made by the owner of the fee, and ac-
cepted for such use by or on behalf of the " In any case where it is necessary, in order to pre-
vent a failure or delay of justice, any of the courts of
the United States may grant a dedimus potestatem.
public'
The vital principle is the animus dedicandi. Time,
to taie depositions according to common usage." *
i^ough often a material ingredient, is not indispensa- " Common usage " here refers to the usage prevail-
ble. A dedication is a conclusion of fact to be drawn ing in the courts of the State in which lihe Federal
by the jury from the circumstances of each case.' court may be sitting.
At common law no special form of ceremony is
Whether the writ is necessary to prevent a " failure
necessary ^simply assent in the owner, a public use, or delay of justice " is foriihe court to determine upon
and acceptance by the public, which last may be evi- the facts presented. " In any case " includes criminal
denced by user. The assent, which must be clear, is
as well as civil proceedings.^
provable by a writing, by parol, or by acts irreconcil- The admissibility of the testimony will be reserved
able with any other construction; as, where a man till the ^ime of trial. The testimony may be consid-
makes a plan of lots, with streets, and sells lots by ered by the court in imposing sentence.'
such plan. A use, from which a dedication may be
DEDUCTION. See DRAvraACK; Re-
presumed, may be much less than thirty years' con-
tinuance. ^ prises; Set-opp.
Acceptance may be presumed where the gift is ben- DEED. 1. A thing done; an act; a mat-
eficial; use is evidence that it is beneficial.^ ter of fact, as opposed to a matter of law:
■An act of Congress which merely "reserves" sec- as, a condition, an estoppel, a seisin in deed.
Corresponds to the iVenoh pais, q. v.
1 Eees V. Chicago, 38 m. 335 (1865). 2. A writing sealed and delivered by the
» [Hobbs V. Lowell, 19 Kck. 40T-10 (1837), eases, Shaw, maker — the most solemn and authentic act
C. J. ; Brakken v. Minneapolis, &c. E. Co., 29 Minn. 43
a man can perform with relation to the dis-
(1881).
3 Benn v. Hatcher, 81 Va. 29 (1884), cases. posal of property.'
* See 30 Kan. 637-^8, 642; 69 Ga. 546. A writing, sealed and delivered ; to be duly
"City of Denver v. Clements, 3 Col. 479-83 (1877), executed, must be on paper or parchment.'
cases; ib. 485-86.
• Quinn v. Anderson, 70 Cal. 466 (1886), oases. ■ Minnesota v. Bachelder, 1 Wall. 114 (1868).
'Ward V. Farwell, 6 Col. 69 (1881), Elbert, 0. J.; " Bartlett v. Crittenden, 5 McLean, 32 (1849) ; Pulte v.
Steele v. Sullivan, 70 Ala. 593-94 (1881), oases; Angell, Derby,
82 (1882).ib. 328 (1862); ThompMns v. Halleck, 188 Mass.
Highw. 142.
8 See Cincinnati v. White, 6 Pet. 440 (18S2); Irwin v. = See 3 Bl. Com. 447; 1 id. SS2\ 2 id. 351.
Dixion, 9 How. 30-81 (1860), cases; Boston v. Lecraw, 17 'E. S. § 866: Judiciary Act, 1789, sec. 30.
id. 435-36 (1854); 1 Bond, 81; 11 Ala. 63; 4 Cal. 114; 25 » United States v. Cameron, 15 F. E. 794 (1883); War-
Conh. 235; 12 Ga. 2M; 76 Ind. 264; 21 La. An. 244; 34
ren V. Younger, 18 id. 862 (1884); 20 Blatch, 232."
id. 618; 124 Mass. 64; 87 jyiof"&ll; 17 id. 561; 33 N. J. L. •United States v. Wilder, 4 Woods, 475 (1882): 14 P.
13; 22 Wend: 444, 450; 6 Hill, 411; 19 Barb. 193; 26 Pa. E. 393.
187; 22 Tex. 100; 9 Wis. 344; 23 id. 420; 3 Kent, 451; An- ' 2 Bl. Com. 295; Wood u. Owings, 1 Cranch, 261
gell, Highw. 111. 3 How. 645.
8 4 Kent, 450.
» Abbott V. Cottage City,143 Mass. 623-26 (1887), cafies.
 825 DEED
DEED

The word in itself imports a written in- Title deed. Any sealed evidence of
strument;'— a written instrument under title, q. V.
seal, containing a contract of agreement Trust deed. An instrument that creates
whieh has been delivered by the party to be a trust, q. v. ; also, a mortgage.
bound and accepted by the obligee or cove- See also Composition, 3; Inspection, 3; Separation;
Settlement, 3.
nante . ^
At common law, the general requisites of a deed
An instrument or agreement under seal.' are: 1. Persons able to contract and to be contracted
This comprehensive meaning includes any writing with for the purposes intended, and a thing or subject-
imder seal; as, a bond, lease, mortgage, agreement to matter to be contracted for, — all expressed by suffi-
convey realty, bill of sale, policy of insm-anoe. cient names. 2. A sufficient consideration. 3. Writing
In common use often limited to a writing, or printing upon paper or parchment. 4. The matter
under .seal, ti'ansf erring real estate; a deed must be legally and orderly set forth: there must be
of conveyance of realty. See Conveyance, words sufficient to specify the agreement and bind the
2; Title, 1. parties, which sufficiency the courts decide. The
formal parts of a deed conveying realty are: (a) the
In its largest sense includes a mortgage,* q. v.
premises — the names of the parties, recitals explan-
A "good deed" to land means, in a covenant, a atory of the transaction, the consideration, the thing
conveyance sufficient to pass whatever right a party
granted; (b) the habendum and tenedum (to have and
has in the land, without warranty or personal cove-
to hold) — defining the nature of the grant; (c) the
nant; it does not imply the conveyance of a good
terms of stipulation upon which the grant is made — -
title.' the reddendum or reservation; (d) the condition or
A " good and perfect deed " to land may intend the contingency upon the happening of which the estate
conveyance of a perfect title clear of all incum-
'Will be defeated; (e) the icarranty securing the estate;
brances, including a right of dower." (f) the covenants — stipulating for the truth of facts,
A " good and sufficient deed " may refer either to or that athingwillbedone; (g) the conclusion — men-
the form of the conveyance or to the interest or title. ^
tioning the execution and the time thereof. 5. Read-
A "good and sufficient deed of warranty," or " with ing— when desired. 6, Sealing, and signing. 7. De-
covenant of warranty," may also refer to the kind of livery— absolute or conditional. 8. Attestation — for
deed or to the quality of the title.'
preserving evidence of the transaction. ^
A deed for a "sufficient title" means for a good The construction of a deed must be favorable, and
title — with the usual covenants of warranty.* So as as near the intent of the paVties as the rules of law
to a "good and sufficient conveyance." '" admit; also reasonable, and agreeable to common
A " lawful deed " means a deed conveying a lawful
understanding. Where the intention is clear too min-
and good title." ute a stress is not to be laid upon the strict, precise
Collateral deed. A defeasance, q. v. signification of words. False English will not vitiate.
Deed poll. A deed not indented, but cut The construction is to be made upon the entire deed.
even ; a deed made by one party only : as, a When all other rules fail, the language will be taken
sherifTs deed. See Poll, 1. most strongly against the party who proposes it. If
the words bear different senses, that is preferred
Deeds under the statute of uses. See which is most agreeable to law. Of two repugnant
Use, 3. clauses the first will be received.-
A deed is to be so construed, when possible, as to give
1 Pierson v. Townsend, 8 Hill, 551 (1813).
effect to the intention of the parties. That this may
' McMurty v. Brown, 6 Neb. 376 (1877).
be done, the court will place itself in the situation of
» Master v. Miller, 4 T. K. 345 (1791). See 1 Ark. 118;
42 N. J. E. 335; 25 Hud, 224; 5 Saw 608. the grantor at the date of the transaction with his
<Hellman v. Howard, 44 Cal. 104 (1872); People v. knowledge of the surrounding circumstances and of
Caton, 25 Mich. 391 (1872). the import of the wprds used.'
See further Acknowledgment. 2; Alter, 2; Bond;
' Barrow v. Bispham, 11 N. J. L. 110, 119 (1889).
• Greenwood v. Ligon, 18 Miss. 617 (1848); 31 id. ZTS, Cancel; Charter, 1: Condition; Consideration, 3;
532, 677. Covenant; Deliberation, 1; Delivery, 3; Descrip-
' Brown v. Covilland, 6 Cal. 578 (1856); Brown v. tion, 1; Duress; Escrow; Exception, 1; Grant, 2;
Gammon, 14 Me. 279 (1837); Parker v. McAllister, 14 Indenture; Influence; Insanity, 2(4); Instrument, 3;
Ind. 16 (1859). Parchment; Party, 2; Possession, Adverse; Prem-
sTindall v. Conover, 20 N. J. L. 215-17 (1843); Joslyu ises; Presents, (1); Profert; Provided; Beading;
V. Taylor, 33 Vt. 474 (1860); 86111. 69; 6 Mass. 494; 11 N. Recital; Recording; Registry, 2; Relation, 1 ; Re-
J. L. 119; 2 Johns. 5S5; 14 id. 224; 16 id. 269; 20 id. 130; serve, 4; Seal, Ij Sign; Specialty; Thence; War-
11 Vt. 47, 549. ranty, 1;Will, 2; Writing.
'2Bl.-Com. 296-309.
' Ware v. Starkey, "80 Va. 196 (1885).
" Gates V. McLean, 70 Cal. 45, 50 (1886). a 2 Bl. Com. 379-81; 3 Kmji; 422.
"Dearths Williamson, 2 S.&K. 499 (1816); Withers ' Cilley V. Childs, 73 Me. 133 (1882), cases; Moses v.
V. Baird, 7 Watts, 229 (1838). On void deeds, see Morse, 74 id. 475 (1883); Moran v. Lezotte, 54 Mich. 86
McArthiir v. Johnson, Phillips' Law, 317 (1867): 93 Am. 492., By corporate
Dec, 593, 596-98, cases. (1884), 'cases; 87 Ind. 179; rr Va.
officers, 26 Cent. Law J. 444-45 (1888), oases.
 DEEM DEFEASANCE
336

DEEM. When by enactment certain acts In an accountable receipt executed by a person to

whom property levied upon was delivered, he prom-
are " deemed " to be a crime of a particular ising to deliver the articles whenever demanded, or
nature they constitute such ' crime, and are "in default thereof "to pay the amount of the debt
not a Semblance or a fanciful approximation called for in the writ, held, that the reference was to
of it.i a breach Of legal duty.i
There can be no default where the omission to do
"Deemed" and "adjudged," in a penal statute,
have.the same meaning.^ the thing, as to make a payment on a mortgage, has
DEFACE. See Alter, 2 ; Cancel. the concurrence of the other party."
A special promise to answer for the default of an-
DEFALCATION.^ 1. Eeduction of a other must be in writing and signed, as see Frauds,
claim by allowance of a counter-claim. Statute of.
Setting off another account or another A defaulting purchaser is one who fails to complete
contract.* his purchase at a public sale. See Auction.
Defalcation was unknown at common law, accord- (2) An omission, neglect or failure to do
ing to which mutual debts were distinct and inextin- something required by law, or by a court
guishable except by actual payment or release.^ See administering the law.
Eecoup; Set-off. When a defendant omits to plead within the time
" Defalcate " is the verb; " defalk " is obsolete." allowed for that purpose, or fails to appear at the
2. Misappropriation of trust funds — by a trial, he "makes default," and the judgment entered
public or corporate officer. in the former case is " a judgment by default." ^
Defaulter. One whose peculations have To " suffer a default " is to let a case go by neglect
or inattention, usually designed.
brought him within the cognizance of the
When the plaintiff makes default he may be non-
law, to the extent, at least, of excluding suited; but a default, in either party, for cause shown,
him from a public trust.
may be " excused " or " saved."
To apply the epithet to a person who is free from A witness, a juror, and an officer of court, is said to
that stigma is defamatory.' make default when remiss in his attention to duty.
DEFAMATORY. Words which produce A judgment by default, for the pm-pose of the par-
ticular action, admits the legality of the demand in
perceptible injury to the reputation of an-
suit; it does not make the allegations of the declara-
other are described as defamatory. Whence
defamation. tion or complaint evidence in an action upon a differ-
ent claim.4 See Inquiry, Writ of; Notice, 1, Judicial.
Defamatory words, if false, are actionable. False
2, V. To have judgment entered against ,
defamatory words, if written and published, constitute
one on account of some default : as, that a
a libel; if spoken, a slander.^
A defamatoiy publication is a false publipation defendant "shall be defaulted unless he files
calciilated to bring the person into disrepute, but it is
an affidavit of defense."
not necessarily malicious.^ See Fame; Libel, 5; Oblo- Defaulted, adj. Due, but not paid ; past
quy; Slander.
due : as, defaulted — interest, coupons, bonds,
DEFAULT.io 1, n. (1) Something wrong-
ful ;some omission to do that which ought
DEFAULTER. See Defalcation, 2.
to have been done, n payment.6
DEFEASANCE. A defeating : undoing,
Non-performance of a duty ; as, the non-
overthrow, avoidance, destruction, depriva-
payment of money due.i^
tion.See
' Feasance.
1 Commonwealth v. Pratt. 132 Mass. 347 (1883). Defeasible. Capable of avoidance or de-
2 BlaufusV People, 69 N. Y. Ill (1877); State v. Price, struction. Indefeasible. Not admitting of
abolition or impairment.
11 N. J.' L. 218 (1830).
3 A in -f al- as in fan. L. diffalcare, to abate, deduct, Many constitutional rights are spoken of as inde-
take away. feasible.
- » Houk V. Foley, 2 P. & W. 350 (1880). Two uses of defeasance are recognized :
0 Commonwealth v. Clarkson, 1 Eawle, 293 (1829); 6 1. A collateral deed, made at the same
Mo. 266.
« Webster's Diet. ' Mason v. Aldrich, 36 Minn. 286 (1886), cases.
' State V. Kountz, 12 Mo. Ap. 613 (1882). = Union Trust Co. v. St, Louis, &c. E. Co., ante.
8 Odgers, Libel & Slander, 1. = Page v'. Sutton, 29 Ark. 306 (1874): Burrill. See also
» Marks v. Baker, 28 Minn. 166 (1881). 64 Ala. 430; 6 Iowa, 265; 29 id. 24S; 11 Neb. 398.
1° F. de-faulte, to want, fail. . ' Cromwell v. County of Sac, 94 U. S. 356 (1876). See
" Union Trust Co. v. St. Louis, &o. E. Co., 5 Dill. 22 also 3 Col. 277; 6 id. 485; 3 Bl. Com. 397; 34 Cent. Law
(I87S); Albert v. Gi-osvenor Investment Co., L. E. 3 J. 27 (1887), cases : as against non-residents, ; 21 Am.
Q. B. 'ISS-SO (1867). Law Eev. 715-31 (1887), cases.
" Williams v. Stern, 5 Q. B. D. 413 (1879). ■> See Foster i'. Morse, 133 Mass. 353 (1883).
 DEFEAT 327 DEFENDANT

time with another conveyance, containing DEFECT. Under the covenant in a

conditions upon the performance of which charter-party that the vessel is "tight,
the estate created may be "defeated" or staunch, and strong," the owner is answer-
totally undone. 1 able for latent as well as for visible defects,
A bond for a reconveyance upon the pay- whereby the cargo is damaged, i
ment of a specific sum, at a specified time, See Caveat; Challenoe; Core, 2.
made at the same time and of the same date DEFENCE. See Defense.
as a deed of conveyance. - DEFENDANT. One who is called upon
Formerly, every mortgagor enfeoffed the mort- in a court to make satisfaction for an injuiy
gagee who simultaneously executed a deed of defeas- done or complained of. 2
ance, considered a part of the mortgaRe, whereby the
feoffment was rendered void on repayment of the
A person sued or prosecuted ; a respondent.
In the rules in admiralty, framed by the Supreme
money at a certain day. But things that were merely
executory, or to be completed by matters subsequent, Court, " defendant" is used indifferently for a respond-
ent in a suit in personam and for a claimant in a suit
could always be recalled by defeasances made subse-
quent to the time of their creation.^ in rem.^
It is not of the essence of a mortgage that there Co-defendant. A joint or fellow de-
fendant.
should be a defeasance ; and there may be a defeas-
ance of a deed of conveyance without constituting it a Defendant above or defendant in
mortgage. The essence of a defeasance is to defeat
error. The party against whom a writ of
the principal deed and make it void ab initio, if the error is taken.
condition be performed. ^
A defeasance made subsequently to an executed Material defendant. In equity, a de-
contract must be part of the original transaction. At fendant against whom relief is sought ; op-
law, the instrument must be of as high a nature as the posed to nominal defendant.
principal deed. Defeasances of deeds conveying realty Where a code provided that a bill in equity should
are subject to the same rules as such deeds themselves, be filed in the district where the defeadants or a mate-
as to record and notice to purchasers; but in some rial defendant resides, it was held that the object was
States notice of the existence of a defeasance, to be to discriminate between defendants whose attitude to
binding, must be derived from the public records.* the case does, and does not, make them real partici-
When an absolute deed is shown to have been orig- pants in the htigation, that a material defendant was
inally made as security for a loan of money, a court one who is really interested in the suit, and against
of equity will tre^t it as a mortgage, and allow the whom a decree is sought.*
grantor to redeem the estate, on the ground that the As employed in sections of a code relating to juris-
defeasance was omitted from the deed by fraud or diction, the word " defendants " was held to mean not
mistake.* nominal defendants merely, but parties who had a
But to reduce a conveyance to a mortgage the de- real and substantial interest adverse to the plaintiff,
feasance may be required by statute to be in 'writing, and against whom substantial relief was sought; and
duly acknowledged and recorded." that to decide otherwise would encourage colorable
3. A defeasance to a bond, recognizance, practices for defeating jurisdiction in the particular
or judgment refcovered is a condition which, class of cases."
when performed, defeats or undoes it, in the In a judgment, "defendant" maybe a collective
term, embracing all who by the record are liable
same manner as a defeasance to an estate.
under the judgment. "
The "condition" of a bond is always inserted in A garnishee is a " defendant in the action," who, in
the bond or deed itself; a " defeasance " is made by a pursuance of a statute, may be restrained from dis-
separate, and frequently by a subsequent, deed. This, posing of property to the injuiy of the attaching
like the condition of a bond, when perf oi-med, disin-
cumbers the obligor's estate.' See Condition. creditor.'
In the Massachusetts Gen. Sts. o. 146, § 38, provid-
DEFEAT. See Defeasance ; Condition. ing that, if an execution has not been satisfied, the
court, " upon petition of the defendant," may order a
stay, if the petitioner gives the adverse party security
' [2 Bl. Com. 327. for the prosecution of the review, refers to the party
= [Butman v. James, 34 Miim. 550 (1885), Berry, J. ; 4
Kck. 353.
' Flagg V. Mann, 2 Sumn. 540 C1837), Story, J. 1 Hubert v. Eecknagel, 13 F. E. 913 (1882).
' See 21 Ala. 9; 3 Mich. 483; 7 Watts, 261, 401 ; 13 Mass. 2 [3 Bl. Com. 25.]
443; 40 Me. 381 ; 43 id. 206; 14 Wend. 63; 17 S. & E. 70; » Atlantic Mutual Marine Ins. Co. v. Alexander, 16
2 Washb. B. P. 489. F. E. 281 (1883).
^ 2 Kent, 1424 Butman v. James, 34 Minn. 550 (1886). ' Lewis I'. Elrod, 38 Ala. 31 (1861), WaUier, 0. J.
« See Penn. Act 8 June, 1881 ; Mich. E. S. 261 ; Mmn. « Allen V. Miller, 11 Ohio St. 378 (1860).
St. L., 1873, 34, § 23. » Claggett V. Blanohard, 8 Dana, *43 (1839).
'3 Bl. Com. 342; 43 Me. 371; 14 N. J. L. 364. ' Almy V. Piatt, 16 Wis. *169 (1862).
 DEFENSE 338 DEFENSE

against whom tHe judgment sought to be reversed is the violence of the assault before he turns upon his
rendered, not to the defendant in the original action,' assailant; . . he must flee as far as he conveniently
Ordinarily, a municipal corporation is not affected can, by reason of some wall, ditch, or other impedi-
by a law which speaks in general terms of defendants, ment, or as far as the, fierceness of the assault will
unless expressly brought within the provisions.'' permit, for it may be so fierce as not to allow him to^
Compare Litigant; Pakty; Plaintiff; Respond- yield a step without manifest danger of- his life or
ent; Suitor. See Delictum, In pari, etc. enormous bodily harm, and then iu his defenseJie rqay
DEFENSE, or DEPENCE.3 1. Resist- kill his assailant instantly. ^
ance of an attack; resistance with force of But no one may revenge himself by striking an un-
an attack made with force or violence. necessary blow, as, when all danger is passed, nor-
strike when the assault is technical and trivial.*
Self-defense. Protection of person or The principles of the law of self-defense may hfr
property from injury. stated in three propositions: U) A person who, in the
The defense of one^s self, or the mutual and recip- lawful pursuit of his business, is attacked by another
rocal defense of such as stand in the relation of hus- under circumstances which denote an intention to take.
band and wife, parent and child, master and servant, his life, or to do him some enormous bodily harm, may
is a species of redress of private injury which arises lawfully kill the assailant, provided he uses all the
from the act of the injured party. In these cases, if means in his power, otherwise, to save his own life, or
the party himself, or a person in one of these rela- prevent the intended harm, — such as retreating as far '
tions, be forcibly attacked in his person or property, it as he can, or disabling his adversary without killing
is lawful for him to repel force with force. . . The him, if it be in his power. (3) When the attack upon
law in this case respects the passions of the human him is so sudden, fierce, and violent that retreat would-
mind and m^akes itlAwful in a man to do himself thau not diminish but increase his danger, he may instantly
immediate justice to which he is prompted by nature, kill his adversary without retreating ata,ll. (3) When,
and which no prudential motives are strong enough to from the nature of the attack, there is reasonable
restrain. It considers that the future process of the ground to believe that there is a design to destroy his
law is by no means an adequate remedy for injuries life or commit any felony upon his person, killing the
accompanied with force ; since it is impossible to say assailant will be excusable homicide, although it
to what wanton lengths of rapine or cruelty outrages should afterward appear that no felony was intended.*
of this sort might be carried unless it were permitted The law of self-defense is a law of necessity, real or
a man immediately to oppose one violence with an- apparently real. A party may act upon appearances,
other. "Self-defense," therefore, as it is justly though they turn out to have been, false. "Whether
called the primary law of nature, so it is not, neither they were real or apparently real is for the jmy, in a
can it be in fact, taken away by the law of society. criminal case, to decide upon consideration of all the_
. . Care must be taken that the resistance does not circumstances out of which the necessity springs. If
exceed the bounds of mere defense and prevention : the jury should find from the evidence that the cir-
for then the defender would himself become ian ag- cumstances were such as to excite the fear of a rear
sonable man, and that the detendant, acting under the-
gressor.* influence of such fear, killed the aggressor to prevent
Homicide in self-defense, upon a sudden affray, is
also excusable. This species of self-defense must be the commission of a felony upon his person or prop-
distinguished from such as is calculated to hinder the erty, he would not be criminally responsible for his
perpetration of a capital crime. This is that whereby death, although the circumstances might be insuffi-
a man may protect himself from an assault or the cient to prove, by a preponderance of evidence^
lilce, in the course of a sudden broil or quarrel, by that the aggressor was actually about to commit a
killing him who assaults him. . . The right of nat-
ural defense does not imply a right of attacking: for, felony.3
The right of self-defense does not imply the right of
instead of attacking one another for injuries past or attack, and it will not avail in any case where the dif-
impending, men need only have recourse to the proper ficulty issought or induced by the party himself. On
tribunals of justice. They cannot therefore legally the other hand, to justify killing an adversary on this
exercise this right of preventive defense but in sudden ground it is not necessary that the danger appre-
and violent cases, when certain and immediate suffer- hended should be real or actually impending. It ia
ing would be the consequence of waiting for the assist- only necessary that the defendant should have had
ance of the law. Wherefore^ to excuse homicide by reasonable cause to aj^rehend that there was an im-
the plea of self-defense it must appear that the slayer mediate design to kill or to do him some great bodUy
had no other possible (or at least probable) means of harm, and that there should have been reasonable
escaping from his assailant.^ . . The law requires
that the person who kills another in his own defense
1 4 Bl. Com. 184-85.
should have retreated as far as he safely can to avoid
2 Commonwealth v. Selfridge, Sup. Ct. Mass. (1806),
^ Leavitt v. Lyons, 118 Mass. 470 (1875). Parker, J. Same case, Whart. Homicide, App. No. 1 ;
» Schuyler County v. Mercer County, 9 HI. 34 (1&47). Hor. & T., Cases on Self-Defense, 17; 2 Am. Cr. TL
3 F. defense: L. defensa: defendere^ to strike down (Hawley), 259.
or away, ward off, repel. Mid. Eng. defence. 8 People V. Flanagan, 60 Cal. 4 (1881), McKee, J.; ^2
*3 Bl. Com. 3; 4 id. 186; 1 id. 130. id. 208, 307; 59 id, 351; United States r, Wiltenberger,
6 4B1. Com. 183-84. 3 Wash. 5S1 (1819).
 DEFENSE 329 DEFENSE

cause to apprehend Immediate danger of such design The practice which requires affidavits of claims and
being accomplished.' defense has been systemized in Pennsylvania to a de-
Adjudicated cases hold that among the slayer^s gree of completeness scarcely known elsewhere. The
nets which abrogate or abridge his right of self-defense subject is usually discussed in connection with the in-
are the following: 1. Devices to provoke the deceased quiry. What are the essentials of a "sufScient" affi-
to make an assault which will furnish a pretext for davit of defense. In that State the practice originated
taking his life or inflicting serious bodily injury upon in an agreement between members of the bar at Phil-
him. 2. Provocation of the deceased into a quarrel, adelphia, signed September 11, 1795.' After that, staO
causing the fatal affray; but mere words or libelous utes extended the practice, until it became general."
publications do not amount to such provocation. 3. Yet the courts, by mere rule, could have required de-
Preconcert with the deceased to fight him with deadly fendants tofile a statement of defense.'
weapons. 4. Commencing an attack, assault, or a The practice does not conflict with the right of trial
battery upon the deceased. 5. Going with a. deadly by jury. If a defendant presents no defense to be^
weapon wherer the deceased is, for the purpose of pro- tried by a jury he cannot claim that privilege is de-
voking adifficulty or bringing on an affray, and by nied him. The affidavit is nothing more than a special
words or acts making some demonstration of such plea under oath — by which the defendant states the
purpose calculated to provoke theni.^ facts of his case for the consideration of the court.
See Arms; Assault; Batteby; Force; Homicide; Trial by jury iU' civil cases has never involved the-
Immediate; Retreat; Threat. right of the jury to decide the law of the case. Thab
2. That which is offered by a defendant as the defendant is obliged to state his plea, or his de-
fense, under oath, is merely a means to prevent delay,
sufficient to defeat a suit — by denying, by falsehood and fraud. Nor can it be objected, whent
justifying, or confessing and avoiding, the all the facts have been stated by the defendant which
cause of action. he either knows or is informed of, believes and ex-
A term of art used in common-law plead- pects to be able to prove, that the court decides the
law arising upon the facts as stated. This is no more
ing in the sense merely of " denial." ' than the court does upon a demurrer, a special ver-
When the plaintiff hath stated his case in the dec-
laration, itis incumbent on the defendant within a rea- dict, a nonsuit or an issue in equity. The affidavit is-
only a modern mode of making up the issue for the
sonable time to make his " defense," and to put in a
jury. And when, upon a statement of all the facts a
plea; else the plaintiff will recover judgment by de-
defendant can conscientiously swear to, the court finds,
fault, g.«. . . Defense, in its true legal sense, signi-
fies not a justification, protection, or guard, which is that the law upon those facts is against him, clearly
its popular signification, but an opposing or denial he has no right to go before a jury. The court has.
then done no more than it would have a right to do by
(French, defender) of the truth or validity of the com- instruction to the jury when all the evidence is in, with,
pjaint. It is the contesiatio litis of the civilians, a
the advantage to the defendant that by his affidavit he
general assertion that the plaintiff hath no ground of
action, which assertion is afterward extended and has made the evidence to support his own case.'
The object is to prevent delay of justice through,
maintained in the plea.* Compare Traverse.
false defenses." At the same time, the practice being
The right possessed by a defendant, aris- in derogation of the right of trial by jury, regulations,
ing out of the facta alleged in his pleadings, are to receive a strict construction. °
which either partially or wholly defeats the The procedure, being somewhat summary, the-
plaintiff, in his affidavit, must have complied with
plaintiff's claim.s every requirement of the law ; ' otherwise, a judgment
Defenses, in civil procedure, are stated with fullness
and particularity in answers to bills and libels, and in given him, for "insufficiency" m the matter relied
afadavits of defense filed to affidavits of claim. upon by the defendant, will be reversed, although that
Defense, affidavit of. A sworn written matter is really insuflicient.'
statement of the facts which constitute the ' Sellers v. Burk, 47 Pa. 344 (1864); Clark v. Dotter, 54
id. 216 (1867) ; Detmold v. Gate Vein Coal Co., 3 W. N. C.
defense in a civil action; also called "affl- 567 (U. S. D. C, E. D. Pa., 1876).
davitof merits." Opposed, affidavit of claim. !■ 2 Brightly, Purd. Dig. 1856, 1857, pi. 24, note d.
> state V. Johnson, 76 Mo. 122, 138 (1883), Norton, J. ; ' Hogg V. Charlton, 25 Pa. 200 (1855); Harres i>. Com-
State V. Umfried, ib. 408 (1882); 69 Id. 469, monwealth, 35id. 416 (1860).
"Cartwright v. State, 14 Tex. Ap. 486, 499 (1883), « Lawrence v. Borm, 86 Pa. 226 (1878), Per Curiam; 19
cases. Hart, J.; Reed v. State, 11 id. 517 (1882); 70 Ala. id. 57; 20 id. 384; Hunt v. Lucas, 99 Mass. 409 (1868),
7- 71 id. 386-37; 32 Conn. 83; 64 Ind. 340; 89id. 195; 80 Chapman, C. J.
Ky 36- 14 B. Mon. 103, 614; 38 Mich. 270, 732; 55 Miss. » Wilson V. Hayes, 18 Pa. 354 (1852) ; Bloomer v. Reed,
22 id. 51 (1853).
403- 13 Johns. 12; 89 N. C. 481; 29 Ohio St. 186; 38 Pa.
267-68; 101 id. 333; 45 Vt. 308; 2 Bish. Cr. L. 877; 12 •Yates V. Burrough of Meadville, 56 Pa. 21 (1867);
Eep. 268. Wall V. Dovey, 60 id. 212 (1869); Boas v. Nagle, 3 S. &
s United States v. Ordway, 30 F. R. 33 (1887). R. 250 (1817).
* 3 Bl. Com. 296. See 33 Ind. 449; 8 How. Pf. 442; 10 ' Knapp V. Duck Creek Valley OU Co., 53 Pa. 185
id. 148; 24 Barb. 631. (1866).
I 8 Gottman v. Shoemaker, 86 Pa. 31 (1877).
• [Utah, &c. R. Co. V. Crawford, 1 Idaho, 773 (1880).
 DEFENSE 330 DEFENSE

The question of insufficiency is brouglit directly be- torts, nor in actions upon contracts for the payment
fore the court by a rule on the defendant "'to show of an uncertain sum, or where there is no standard by
cause why judgment should not be entered against which to liquidate the judgment.'
him for want of a sufficient affidavit of defense " — The defendant is to make the jiffidavit, unless
the particulars of the alleged insufficiency being at the cause, such as sickness or necessary absence, is shown
same time specified in writing and filed with the rule. why he cannot make it. Then an agent, and perhaps
The court considers the facts set out in the affidavit even a stranger to the transaction, may make it.^
and passes upon their legal sufficiency. ^ For this When defendant avers facts on information and be-
purpose it takes the facts as true, not to be contra- lief he must add that he expects to be able to prove
dicted even by a record.^ them or else set out specifically the source of his in-
It is sufficient to set forth, in the affidavit — facts formation or the facts themselves upon which his
showing a valid defense which can properly be estab- belief rests. 3 This affords a presumption that proof
lished; 3— specifically, and at length, such facts as can be made.* Positive averment of truth is enough.*
will warrant the inference of a complete legal de- The practice does not permit the filing of a supple
fense;—* a substantially good defense; fi — a prima mentary affidavit of claim to obtain a judgment for
facie good and valid defense.^ an insufficient defense. Such affidavit may be filed
The defendant must state the grounds and natm-e for use as evidence at the trial ; so, too, as to a supple-
of his defense, so that the court may judge how far it mental affidavit of defense in reply to a supplenientaJl
will avail against the plaintiff's demand, if established affidavit of. claim. But the court will not consider thrj
sufficiency of eitner affidavit.^
proof.''
by The facts are to be averred with reasonable precis- Should the court deem the defense set out in the
ion; but the evidence by which the defendant will original affidavit to be probably good but obscurely or
prove them need not be stated. ^ Nor need he meet otherwise defectively stated, it may allow a supple-
every objection which fine critical skill may deduce. ^ mental affidavit of defense to be filed.''^ Notice thereof
While an allegation doubtfully stated or clearly eva- is to be given, to prevent surprise and delay at the
sive is to be disregarded, the defendant is not to be time for trial.
held to a rigor of statement so severe as to catch him There "is no rule that such supplemental affidavit
in a mere net of form.* must be confined to an explanation of the original de-
The facts are to be averred with reasonable precis- fense, and cannot set up a new and different defense;
ion, and with certainty to a common intent. Toward such a course, however, is suspicious, and requires
sustaining the affidavit a reasonable intendment will that the new defense be closely scrutinized. ^
be given the language, i" Where judgment has been entered for want of a
But no essential fact is to be left to inference ; ^ ^ sufficient affida,vit of defense 4,nd tlie record shows it
what is not said is taken as not existing.^^ Further- to be according to law, a motion to take it off is ad-
more, inasmuch as a party swearing in his own cause dressed toI the discretion of the coul-t, and, in the
is px'esumed to swear as hard as he, can with a, good absence of statutory provision to the contrary, is not
conscience, ^3 inferences, when justifiable, are not to be the subject of a writ of error.^
pressed beyond the ordinaiy meanmg of the terms It would seem that an affidavit of defense, to be-
come part of the record, should be offered in evi-
employed.^*
A, material fact which, if it actually exists, would
readily and naturally be expressly averred, must be Dilatory
dence, ^o defense. A defense designed
averred. IS to dismiss, suspend, or obstruct the prosecu-
The practice which requires affidavits of defense
is limited to obligations for the payment of a certain tion of a claim, without touching upon the
Sinn of money. Hence, it does not apply in actions for defendant's *' meritorious defense." See
Merits.
iStitt V. Garrett, 3 Whart. 281 (1837); Comly v.
Bryan, 5 id. 261 (1S39); Marsh v. Marshall, 53 Pa. 396 1 Borlin v. CommonweaU]i, 99 Pa. 46 (1881). See 89
<1866J. id. 26; 90 id. 276.
3Feust V. Fell, 6 W. N. C. 43 (1878); Kirkpatrick v. = See City v. Devme, 1 W. N. C. 358 (1875); Clymer v.
Wensell, 2 Leg. Chron. 303 (1874). Fitler, lb. 626 (1875); Blew v. Schock, ib. 612 (1875);
3 Leibersperger v. Reading Bank, 30 Pa. 531 (1858). Crine v. Wallace, ih. 293 (1875) ; Burkhart v. Parker, 6
* Bryar v. Harrison, 37 Pa. 233 (1860). W. & S. 480 (1843); Hunter v. Reilly, 36 Pa. 509 (1860).
6 Thompson u Clark, 56 Pa. 33 (1867). 3 Black V. Halstead, 39 Pa. 64 (1861); Thompson v.
, « Chartiers R. Co. v. Hodgens, 77 Pa. 187 (1874). Clark, 56 id. 33 (1867).
7 Walker v. Geisse, 4 Whart. 256 (1838). 4 Clarion Bank v. Gregg, 79 Pa. 384 (1875); Renzor v.
8 Bronson v. SUverman, 77 Pa. 94 (1874). Supplee, 81 id. 180 (1876).
« Lawrence v. Smedley, 6 W. N. 0. 42 (Sup. Ct.,1878).
id.« 354
Eyre(1876),
v. Yohe, 67 Fa. 477 (1871); Moeck v. Littell, 82
lOMarkley v. Stevens, 89 Pa. 281 (1879); 77 id. 283; 89
id. 281. « Anderson u Nichols, 12 Pitts. Leg. J. 231 (1882).
H Pefck V. Jones, 70 Pa. 83 (1871). 'Laird v. Campbell, 92 Pa. 475 (1880).
»2 Lord V. Ocean Bank, 20 Pa. 384 (1853). 8 Callan v. Lukens, 89 Pa. 134 (1879), Per Curiam.
J 3 Selden v. Neemes, 43 Pa. 421 (1862). » White V. Leeds, 51 Pa. 187 (1865). See Act 18 April.
J 4 Marsh V. Marshall, 53 Pa. 396 (1866). 1874: P. L. 64; 2 W. N. C. 707.
" Markley ^?. Stevens, 89 Pa. 281 (1879). If Maynard v. National Bank, 98 Pa. 250 (1881).
 DEFENSE 331 DEFINITE

Equitable defense. A defense, in a DErER.i To postpone to a future day ;

commou-law action, which rests upon equi- as, a deferred payment of principal and in-
table or legal and equitable grounds. terest upon account of a mortgage, or of a
Equitable defenses, though admissible under State dividend upon account of shares of stock.
practice, are not admissible in the United States
See Dividend, 3; Stock, 3 (2), Deferred;
courts,' If a defendant has equitable grounds for Postpone, 1.
relief he must seek to enforce them by a separate suit
in equity." See Procedure. DEnCIENCY. That part of the debt,
Full defense. In common-law practice, which a mortgage was made to secure, not
a defense made by the formula he " comes realized from the subject mortgaged. ^ See
and defends the force and injury when and Estimate; More or Less.
where it shall behoove him, the damages, DEEIWE. To set bounds to, mark the
and whatever else he ought to defend." limits of. See Definitio ; Definition.
Shortened into he " defends the force and in- 1. To make clear the design or scope of
jury, when," etc. Opposed, half-defense: previous action ; to remove doubt or uncer-
made by the words he " comes and defends tainty as to the meaning or application of ;
to determine authoritatively, settle officially,
the force and injury, and says," etc.^
Greneral defense. A general denial of decide judicially.
the material allegations of a claim. In popular meaning, often, to make clear and cer-
A general denial is not equivalent to a general issue tain what was before uncertain or indefinite, to render
at common law. It only puts the plaintjtl: to proof of distinct; but in legislation frequently has a broader
his substantial allegations. If the defendant has an signification. Many constitutional laws have been
affirmative defense in the natiu-e of an avoidance he passed conferring powers and duties which could
not be considered as merely explaining or making
should plead it.* more clear those previously conferred or sought to be,
Good, legal, sufficient, or valid de- although the word " define " was used in the title. In
fense. Adefense which is ample or adequate legislation the word is frequently used in creating,
in law as against the particular demand. enlarging, and extending the powers and duties of
Legal defense often stands opposed to equita- boards and officers, and in defining and providing pun-
ishment for offenses — thus enlarging the scope of the
ble defense, q. v. criminal law. It may very properly be used in the
No defense. Certificates are frequently title of a statute where the object is to determine or
fix boundaries, especially where a dispute has arisen
required by proposed purchasers ' of mort-
gages standing in the name of the nnortgagee concei-ning them, whether the extent of territory in-
or of his transferee, that the mortgagor has cluded be enlarged or lessened.^
3. To enumerate or prescribe what act or
no defense, in equity or law, to a demand
acts shall constitute; to declare to be an
for payment thereof.
offense.
Peremptory defense. That the plaintiff
"To define pii'acies" is to enumerate the crimes
never had, or has not now, a right of action.
which shall constitute piracy.*
Sham defense. A mere pretense of a Declaring that a certain act shall constitute an of-
defense, set up in bad faith, and without fense is " defining " that offense.'
color of fact. See further Sham. DEEINITE. Bounded, limited, defined:
Whenever one is assailed in his person or property, determinate, precise, fixed, certain. Op-
he may defend himself, for the liability and the right
posed, indefinite.
are inseparable. . A sentence of a court pro- A " definite failure of issue " occurs when a precise
nounced against a party without affording hun an op- time is fixed by a will for the failure of issue. An
portunity tobe heard is not a judicial determination "indefinite failure of issue" is the period when the
of his rights. There must be notice of some kind, act- issue or descendants of the first taker shall become
iial or constructive. The period is a matter of regula- extinct, and when there is no longer any issue of the
tion by positive law, rule of court, or established issue of the grantee, without reference to a particular
practice.' See Day, In court; Admission, !i.
time or event." See further Die, Without chUdi-en.
1 Parsons v. Denis, 2 MoCrary, SCO (1881); Gibson v. 1 L. dis-ferre, to put off, delay.
Chouteau, Vi Wall. 103 (1871). " [Goldsmith v. Brown, 33 Barb. 493 (1861).
2 Northern Pacific E. Co. v. Paine, 119 U. S. 561 (1887); 3 People V. Bradley, 36 Mich. 452 (1877), Marston, J.
Phillips V. Negley, 117 id. 675 (1886), cases; Herklotz v. 4 United Stales v. Smith, 5 Wheat. 160 (1820).
Chase, 33 F. B. 433 (1887). " United States v. Arjona, 120 U. S. 488 (1887).
»3B1. Com. 298. = Huxford V. Milligan, 60 Ind. 546 (1875); 14 N. H. 220;
« Walker v. Flint, 3 McCrary, 510 (1882). 19 id. 84-85; 16 Johns. 398-400; 20 Pa. 513; 40 id. 23; 2
• Windson v. MoTeigh, 93 U. S. iTH (1876), Field, J. Eedf. WUls, 276, u.
 DEHORS
DEFINITID 3S3

DEPINITIO. L. Abounding, limiting: of the present tenant or possessor was orig-

defining, definition. inally lawful, but his detainer has become
Omnis deflnitio in jure perieulosa est. unlawful. . . The holding of any lands or
All limitation in law is perilous; defining in tenements to which another person hath a
law is dangerous. Attempts to define the
meaning of words, and to limit the applica- Deforciant. He who is chargeable with
right.'
a deforcement.
tion of statutes, are attended with more or
less difiiculty. A deforcement includes as well an abatement, an
Thus, it is difficult to frame_ perfectly accurate defi- intrusion, a disseisin, or a discontinuance, or any
nitions of sucli terms as accident; general agent, other species of wrong whatsoever, whereby he that
special agent; • bailment; boarder, guest, lodger; hath right to the freehold is kept out of possession.'
See Amotion.
crimen falsi; ^ cruelty; dwelling-house; fraud;* in-
ternal police;* larceny; public policy;* reasonable DEFBAUD. See Fraud,
doubt; slight, ordinary, and gross negligence; regula- DEGRADE. See Cmminatb; Libbl, Sj
tions of commerce as distinguished from police regu- Reinstate; Kehabilitate ; Slander.
lations. See those terms.
Thus, also, as there are exceptions to almost every DEGrREE.^ One of a series of progressive
rule of law, and as circumstances alter cases infinitely, steps upward or downward; grade. ^
when a statute itself imposes no limitation upon its 1. A remove in the line of relationship.
meaning or application, the courts, in construing the
statute, as a rule, confine themselves to the circiun- Levitical degrees. The degree of kin-
stances of the case in hand. ship, .set forth in the eighteenth chapter of
DEFINITION. An enumeration of the Leviticus, within which persons may not in-
particular acts included by or under a name : termarry.*
Adopted in English and American law generally.
as, the definition of a crime.6 See Define;
Definitio. 2. The grades of guilt' or culpability at-
tributed to the same offense committed under
Legal definitions, for the most part, are generaliza-
tions derived from judicial experience. To be com- different circumstances : as, degrees of negli-
plete and adequate, they must sum up the results of gence, degrees in the law of arson or of mur-
all of that experience.' der, qq. V.
The meaning given to common words by the leading When a defendant is charged with an offense which
lexicographers is entitled to weight, yet regard must includes others of an inferior degree, the law of each
always be had to the circumstances under which a degree which the evidence tends to prove should be
word fas, traveler) is used in a statute.^ given to the jury.^
The definitions of the standard lexicographers are 3. The rank to which a student who has
authority as indicating the popular use of words. ^
See Etymology; Indictment; Word. attended a law-school is admitted among its
DEFINITIVE. Is generally equivalent alumni. "Whence bachelor of laws, doctor of
cmil law, doctor of laws.
to "final" and opposed to interlocutory or Taken in course, or conferred for supposed attain^
provisional. But, in some relations, as when
ments, — the last named degree frequently so.
said of a judgment, decree, or sentence, may At the inns of court degrees were formerly con-
mean being above review or contingency of ferred in the common law upon barristers. Whence
reversal.'!'' Compare Final. the expression "take " and " receive " a degree.
DEFORCEMENT. An injury by ouster DEHORNING. See Cruelty, 3.
or privation of the freehold, where the entry DEHORS.« From beyond; outside of:
extraneous, extrinsic, foreign to, uncon-
» 1 Pars. Contr. 40. nected with ; aliunde, q. v.
aiGreenl. Ev. §373. Applied to something as evidence, outside of a.
» 8 Pars. Contr. 769. record, agreement, will, or other instrument.
* 11 Pet. 138. Thus, a judgment may be falsified, reversed, or
"3 Pars. Contr. 249.
•Marvin v. State, 19 lud. 184 (1862), Perkins, J.
' [Mickle V. Miles, 31 Pa. 31 (1856;, Lowrie, J.; Pardee 13 Bl. Com. 172; Wildy v. Bonney, 26 Miss. 89 (1853).
■u. Fish, 60 N. Y. 269 (1875). * F. degr^: L. de-gradus, a step. Cf . Pedigree.
>> I'ennsylvania E. Co. v. Price, 96 Pa. 267 (1880). ' 3 Webster's Diet.
»Bumam v. Banks, 45 Mo. 351 (1870); Dole 7). New * 1 Bl. Com. 435.
England Mut. Ins. Co., 6 Allen, 386 (1863). s State V. Mize, 36 Kan. 188 (1887); State u Evans, ib.
■PSee United States v. The Peggy, 1 Cranch, 109 497 (1887).
(1801); 1 WattB, 257; 37 Pa. 255; 96 id. 420; 3 Bl. Com. * De-hSrz'. A French word, equivalent to the late
101. Latin deforia: /oris, foras, out of doors.
 DEL CEEDERE 333 DELEGATUS

made void for a matter dehors the record,— that is, DELEGATA. See Delegatus.
■not apparent upon the face of it.' DELEGATE, v. To commit power to
A matter dehors a record may be shown as groimd
for a new trial.* another as agent or representative; to em-
When doubt arises as to meaning of the words of a power, depute, n. The person who is to
written contract, or difficulty as to their application, exercise any such power; as, a Territorial
the sense may be ascertained by evidence dehors the delegate. See Delegatus.
instrument itself.^
Delegation. 1. At common law, the
DEL CEEDERE. L. Of trust, credit.
transfer of authority; the act of making a
Appliedjp ap. ageat or fadtor who guaran- delegate or deputy. ^
tees .'tbattnepersons to whom he sells will 2. In civil law, the substitution of one
perform the contracts he makes with them.* debtor for another : a species of novation.
When the person to wljom goods or merchandise
The change of one debtor for another,
is consigned for sale undertakes, for additional com-
when he who is indebted substitutes a third
pensation incase of sale', to guarantee to his principal
the payment of the debt due by the buyer, he is said person who obligates himself in his stead to
to receive a del credere commission.' See Commis- the creditor ; so that the first debtor is ac-
sion, 3; Factor.
quitted and his obligation extinguished, and
DELAY. Putting oflE ; postponement.
the creditor contents himself with the obli-
A conveyance may be made with intent to hinder and
delay creditors without any intention to defraud them." gation of the second debtor. '
See Bankkuptcy; Conveyauoe, Fraudulent; Hinder. A delegation demands the consent of all three par-
ties; any other novation demands the consent only of
Mere delay in enforcing equitable rights is not a de-
fense to an action, except in cases where the statutes the two parties to the new debt.' See Novation.
of limitation apply, or where the party has slept upon DELEGATUS. L. A person chosen or
his rights and acquiesced for such length of time that commissioned : a deputy, agent, representa-
his claim has become stale.' See Laches; Lihita- tive, trustee. Delegata. Deputed, em-
TIOH, 3, Statute of; Stale.
In the law of marine insurance, see Demdrrage; powered, intrusted.
Deviation.
Delegata potestas non potest dele-
DELECTTJS. L. Choice; selection.
gari. Delegated authority cannot be re-
Delectus personse. Choice of person. delegated. Delegatus non potest delegare.
Delectus personarum. Choice of persons A deputy cannot deputize.
or the persons.
Whenever, for personal or other considera-
The right to choose the person or persons tions, authority is conferred upon a particu-
who shall participate in a business or enter- lar person he cannot lawfully devolve the
prise requiring the exercise of mutual confi- duties of his appointment or the functions of
dence.
his office upon any other person, unless al-
lowed so to do by express words, by acts
In particular, the absolute right which be-
longs to each member of a firm to decide trade. -
equivalent thereto, or by the usage of
what new partners, if any at all, shall be ad- Delegatus potestas, etc., as a general maxim, is
mitted to the firm. correct when duly appUed. For, to create a dele-
In theory a partnership is a voluntary association. gate by a delegate, in the sense of the raaxun, im-
For this reason neither the purchaser of the interest plies an assignment of the whole power, which a
of a member, nor his assignee, nor even his executor delegate cannot make. A delegate hasmay general pow-
ers which he cannot transfer; but he constitute
or heir, becomes entitled to admission Into the asso-
ciation, except by consent of the remaining partners another his servant or bailiff to do a particula r act.'
It
or by the terms of their compact.^ A special authority is in the nature of a trust.
of
implies confidence in the ability, skill, or discretion
may
the pai-ty intrusted. The author of such a power
powers of
1 [4 Bl. Com. 390. extend it if he will, as is done in ordinary
his substitute to
a [3 Bl. Com. 387. attorney, giving power to a person or
3 Sandford v. New York, &c. E. Co., 87 N. J. L. 4
(1874): Shore v. Wilson, 9 Clark & F. 566 (1842), Tin-
dal, C. J. nden u Witbeck,
sonv aarke,6How.W0(1848); Critte
* Exp. White, L. E., 6 Ch. Ap. Cas. *403 (1870), Hel- 60 Mich. 419, 420 (1883); Story, Partn. S§
195, 5; 3 Kent,
lish, L. J.
55- 1 Pars. Contr. 154; 17 F. E. 571.
« [Story, Agency, § 33; 50 Barb. 395. ; Adams V. Power, 48 Miss. 454 (1873), Peyton
, C. J.;
• Crow V. Beardsley, 68 Mo. 439 (1878).
1 Domat, 919, 1 2318.
' Williams v. Boston, &c. E. Co., 17 Blatch. 23 (1879). ca^es. Per
fZit... Burrel, 6 Johns. *137 (1809),
« Kingman v. Spurr, 7 Hck. 238(1828), cases ; Mathew- Curiam.
 DELIBERATION 834 DELICTUM

do tjie act authorized. But when it is not so extended The statutory rule of deliberation and premedita-
it is limited to the person named. ^ See Deputy. tion requires that the act be " done with reflection "
The utmost relaxation of the rule, in respect to and "conceived beforehaqd." '
mercantile persons, is, that a consignee or agent for *' Deliberate " is from Latin words, which mean
the sale of merchandise may employ a broker, or a " concerning " and " to weigh." As an adjective it
sub-agent, for the purpose, when such is the usual means that the manner of the performance was de-
course of business.'' termined upon after examination and reflection—
When the principal recognizes the validity of the that the consequences, chances, and means were
services rendered by the subordinate of the appointed weighed, carefully considered and estimated. "Pre-
agent he cannot repudiate the acts of his employee meditated "means, literally, planned, contrived or
and escape personal liability for the want of author- schemed beforehand. It is not only necessary that
ity to employ him.^ the accused should plan, contrive and scheme, as to
Judicial power cannot be delegated.* Nor can a the means and manner of the commission of the deed,
legislature delegate its power to any commission or but that he should consider different means of ac-
body except as to the functions of local self-govern- complishing the act. He must '' weigh " the modes of
ment conferred upon municipal' corporations, q.v.; consummation which his premeditation suggests, and
and as'to some matters of police regulation which the determine which is the most feasible. ^
people of a locality may be permitted to accept or re- In some States "deliberate and premeditated " are
ject by vote, as, for example, local option laws.' See applied to the malice or intent, not to the act, and thus
Option, Local. seem to require a purpose brooded over, formed, and
matured before the occasion at which it is carried
DELIBERATIPIT. Balancing, weigh-
ing: consideration; reflection; meditation, intoSeeact.further
8 Premeditate; Will, 1.
premeditation.
1. When a man passes a thing by deed, there is a
DELICT. 1. In civil law, the act by
determination of the mind to do it, the writing, the which a person, through fraud or malignity,
signing, the sealing, and the delivery; and henc^e his causes damage to another.
deed imports consideration, viz.: the will of the In its enlarged sense includes all kinds of crimes
maker. ^ and misdemeanors, even injuries caused voluntarily
3. Slander in print is graver than slander by word or accidentally and without evil intention; but is com-
of mouth, because it is not only disseminated wider, monly limited to offenses punishable by a small fine
but is accompanied with greater coolness and delib- or a short imprisonment.*
eration.^ 3. A delictum, q. v.
3. In describing a crime, " deliberate " im- DELICTITM.5 L. A wrong, whether
ports that the perpetrator weighs the motives private or public : an offense, a civil injury
for the act and its consequences, the nature or tort, a crime; also, simply a failing or
of the crime, or other things connected with
fault, blame, guilt, culpability.*
his intentions, with a view to decision
Corpus delicto. The body of the of-
thereon ; that he carefully considers all these ; fense; the fact of a crime. See further
that the act is not committed suddenly.^ Corpus, Delicti.
If an intention to kill exists, it is wUliul; if this in-
Ex delicto. Out of fault or a fault ; aris-
^tention be accompanied by such circumstances as evi-
dence a mind fully conscious of its own purpose and ing from a tort or wrong — misconduct, neg-
design, it is deliberate." ligence, crime.
Said of the actions of case, replevin, trespass, and
> Sanborn v. Carleton, 15 Gray, 403 (1860), Shaw, C. J. trover. Opposed, ex contractu. See Action, 2.
See 2 Kent, 633.
Flagrante delicto. The offense still
2 Warner v. Martin, 11 How. 228 (1850), cases,
Wayne, J. See Story, Agency, § 13. burning ; in the heat of the offense : in the
» Commissioners v. Lash, 89 N. 0. 170 (1863), Smith, very act of perpetrating a crime or the
C. J. See 71 AJa. 28; 3 Dak. T. 395; il N. J. E. 618; 63 crime. 7 Compare Ceimbn, Flagrans.
Pa. 85.
* Van Slyke v. Trempealeau Ins. Co., 39 Wis. 392 1 Summerman v. State, 14 Neb. 509 (1883), Lake, C. J. ;
(1876), cases, Eyap, C. J. ; Eunkle v. United States, 133 Wharton, Homicide, 180.
U. S. B57 (188T),— as to the President of the United = Craft V. State, 3 Kan. 483 (1866), Crozier, C. J.
States; Cooley, Const. Lim. 116, cases. ' Keenan v. Commonwealth, 44 Pa. 57 (1862), Lowrie,
3 Cooley, Const. Lim. 124, cases. See also Common- C. J. See 71 Mo. 220; 74 id. 219, 249, 266; 76 id. 104; 23
wealth V. Smith, 141 Mass. 140 (1886). Ind. 263.
See generally 21 Am. LawEev. 936-54 (1887), cases; * [Bouvier's Law Diet.
26 id. 74-94 (1888), cases. ' From de-linquere, to leave a person or thing; then,
'Smith, Contr. 14; Williams, E. P. 143. to be wanting in a matter, fail in duty, offend, trans-
' Addison, Torts, 765. gress. Compare Malos, Malum.
8 State V. Boyle, 28 Iowa, 524 (1870), Beck, J. ' See 3 Bl. Com: 363; 1 Kent, 552; 2 id. 341.
» Commonwealth v. Drum, 68 Pa. 16 (1868), Agnew, J. ' See 4 Bl. Com. 307; 5 Cent. Law J. 380.
 DELICTUM DELIVERY
333

In pari delicto. In equal wrong : equal If a contract, void as against public policy, is still
executory it cannot be enforced, nor will damages be
in guilt ; equally guilty ; equally to blame.
awarded for a breach thereof; but if it is executed
The first part either of the maxim m pari
the price paid or property delivered cannot be re-
delicto, melior est conditio possidentis, in
covered.'
equal fault, the better is the situation of the The rule is applied to cases of moral turpitude and
party in possession ; or else of the maxim in to acts against public policy; not to cases of innocent
pari delicto, potior est conditio defendentis, mistake."
One who bribes an officer of government cannot I'e-
in equal fault, the stronger is the situation cover the money.^
of the defendant. Also spoken of as the rule In a few special cases, one party, less at fault than
of par delictum, equal wrong: parity of un- the other, has been allowed to maintain an action.*
lawful conduct. Compare Negligence, Comparative, Contributory.
See Actio, Ex dolo, etc.; Contribution; Estoppel;
Where misconduct is mutual the law will
Innocence; Legal, Illegal, 2; Tort, 2; Turpitude;
relieve neither party, but leave them where VoLO, Volenti, etc.
it finds them. Propter delictum. On account of
While defendants derive advantage from its appli- wrong — a crime or misdemeanor; as, a chal-
cation, the rule was not adopted for their benefit, but
solely as a principle of general policy.' lenge of a juror for infamy.^ See Chal-
lenge, 4.
A court of equity will not aid parties in the consum-
mation or perpetration of a fraud; it will not assist a DELIRIUM. That state of the mind in
party to the betrayal of a trust to derive advantage which it acts without being directed by the
therefrom; it will not undertake to unravel a tangled
web of fraud to enable one of the parties to consum- power of yoUtion, which is wholly or par-
mate his design. A complainant must come before tially suspended.^
the court with clean hands.'' A temporary derangement of mind pre-
The court will not enforde alleged rights restmg ceded or attended by a feverish and highly
upon a prohibited contract. In the application of the diseased state of the body.^
rule it is necessary to give parties a right to plead and
It may vary from slight wandering to violent de-
to prove the nature of the transaction.^ Whatever is rangement, and be accompanied, in a greater or less
stated in a contract for an illegal purpose, as, the vio-
lation of a statute, the defendant may show as the degree, with stupor or insensibility. A continuing in-
sanity will not be presumed, where the malady was
turpitude of himself and the plaintiff to prevent its
enforcement. The objection is allowed on general temporary and occasional.' See Insanity; Intem-
perate.
principles of policy.* DELIVEBY.8 Transfer of the body or
Lord Jlansfield, in ITGO, laid down the doctrine,
which has ever since been followed, that if the act be substance; surrender of physical possession
in itself immoral, or a violation of the general laws of or control; tradition. Opposed, non-deliv-
ery.
public policy, both parties are in pari delicto; but
•where the law is designed for the protection of the To "deliver" is to give or transfer any-
subject against oppression, extortion, and deceit, and
con- thing to another person.
the defendant takes advantage of the plaintiff's
dition or situation, then the plaintiff shall recover."
Where the illegality consists in the contract itself,
and that contract is unexecuted, there is a locus cases, Bradley, J.; Co-^-ress & Empu-e Spring Co.!).
Knowlton, 103 V. S. 5i4-jO (1880), cases. Woods, J. See
pomitentioB, the delictum is incomplete, the contract also 116 U. S. 685-86: 48 Ark. 491; 101 Mass. 160; 107 id.
may be rescinded by either party and the money paid re-
law protects 259- 25 Pa. 441; 79 id. 242; 25 Barb. 341; lOInd.386; 59
covered. There is no parity where
the Iowa, 190; 6 Col. 14; 58 N. H. a49; 17 Nev. 177; 70 Va.
one party, or one acts under constraint, though 2
transaction is completed. = 423; 2 Story, Contr. § 617; 3 Pars. Contr. 127, 484;
Greenl. Ev. § 111.
I Setter v. Alvey, 15 Kan. 160 (1875), Brewer, J.
iSee Holman v. Johnson, 1 Cowp. 34.3 (1775),
Mans- ' See 55 Barb. 102; 22 Mich. 42T; 11 Mass. 376; 4 N. H.
field C. J.; Smith, Contr. 27, 203, 263, 296., 455; 3N. y. 230.
= Fariey v. St. Paul, &c. R. Co., 14 F. B. 114, 117 (188^), 8 Clark V. United States, 102 U. S. 331 (1860).
Ti-eat, D. J.; Lewis v. Meier, ib. 311 (1882); 2 McCrary
599.
, * See White v. Franklin Bank, 22 Pick. 181-90 (1839),
As to
cases; Daniels v. Tearney, 103 U. S. 420 (1880),
cases;
»Funk V. GaUivan, 49 Conn. 128-29 (1881), counter-claims, 20 Cent. Law J. 303-65(1885),
cases.
Myers » See 3 Bl. Com. 363; 2 Kent, 241.
Heineman v. Newman, 55 Ga. 262 (1875), cases;
Redf.
■u Meinrath,"101 Mass. 368 (1869), cases. 6 Owing's Case, 1 Bland's Ch. 386 (1828). See 1
* Han-is v. Kunnels, 12 How. 86 (1861), Wayne, J.
"Smith V. Bromley, 2 Doug. 697: Thomas v. Eich- ^'"neTrs of Clark v. Ellis, 9 Oreg. 129, 141 (1881), Lord,
mond, infra. Chief Justice,
6 Thomas «. City of Richmond, 13 Wall. 355-56(18,0), ep. delim-er: L. de-liberare, to set free.
 DELIVERY 336 DELIVERY

A law against "selling or delivering intoxicating possession retained by the vendor is evidence of
liquor to a minor " was held not to include a delivery fraud — conclusive, by some authorities, by others,
to a minor for his father. 1 See Liquor. rebuttable.
In the sense of release from confinement, used in Symbolical is a substitute for actual delivery, when
" jail-deliveiy." See Jail. the latter is impraoticablej and leaves the real deliv-
*' Delivery," used alone, is of personal property; of ery to be made afterward. Thus, the delivery of a
letters, notices, telegrams, qQ. -u.; ©T negotiable in- certificate of stock with a power of attorney in blai^
struments, q.u; of sealed iiistpuments; of opinions, for making a transfer upon the proper books operates
charges, verdicts, qq. v. as a symbolical delivery of the stock itself, until the
1. In the law as to gifts, sales, and trans- real delivery can be perfected.'
To constitute a delivery to a common carrier the
portation of personailty, delivery is absolute
latter must accept the goods as a carrier and assume
or conditional, actual or constructive, and exclusive control over them.^
symbolical. What amounts to a delivery to a carrier may some-
Absolute delivery. A transfer without times be a question' of fact for a jury; ordinarily, a
any qualification, expressed or implied. delivery at his -wharf, freight or warehouse, brought
to the notice of his servant, would be so considered.
Conditional delivery. A ti-ansfer accom- A deliveiy at a wharf may be of itself an incomplete
panied by one or more conditions which act, to be explained by what precedes or follows.'
must be fulfilled before the general property A common carrier by water must at least give notice
vests in the possessor. to a consignee that the vessel has arrived or that the
A conditional sale may become an absolute s^e by property has been landed.*
an unconditional deliveiT* of the goods, the title then Proof of the unexplained non-delivery of property
passing to the purchaser. To constitute a conditional by a bailee upon demand makes a prima facie case
delivery it is not necessary that the seller declare the of negligence, and, in the absence of evidence excus-
conditions in express terms. It is sufficient if the in- ing the non-delivery, presents a question of fact as to
tent of the parties, that the delivery is conditional, actual negligence for the consideration of a jury.*
can be inferred from their acts and the circumstances Property in a situation to be delivered to the con-
of the case,^ signee on demand may be said to be "awaiting deliv-
Actual delivery. Manual or corporal ery; " property on its way to a distant point to be
taken thence by a connecting carrier, to be "awaiting
transfer, made in fact or reality. Construct-
ive delivery. A transfer which while not transportation." "
Misdelivery. A delivery by a common
in reality made is yet viewed in law as as carrier at such place or time as is not in-
good as made. . tended by the contract of carriage.
" Constructive delivery " is a general term, compre- Opposed, a good, sufficient, or legal delivery.
hending all acts which, although not truly conferring
A misdelivery by a carrier is equivalent to a con-
a real possession of the thing sold on the vendee, have
been held coTistructione juris equivalent to acts of version.*
See Accept, 1; Bailment; Carrier; Place, Of de-
real delivery.^ livery; Possession, lY'audulent; Sale.
Symtoolic. or symbolical delivery. As to collections on delivery, see Collection. »
Handing over one thing as evidence of part- Delivery bond. An obligation for the
ing with ownership in another or other return of goods, or the payment of their
things. value, taken into the possession of the law
Delivery is frequently symbolical; as, delivery of but now to be restored to the defendant ; as,
the key to a room containing goods, by marking tim-
in seizures under revenue laws.*
ber on a wharf or goods in a warehouse, or by sepa-
rating, measuring, or weighing them; or otherwise 3. Section 3893, Rev. St., is designed to
constructive, as by delivery of part for the whole; » or
by delivery of a bill of lading or of a bill of sale. See 1 Wmslow V. Fletcher, 63 Conn. 398-99 (1886); Cooke
V. Hallett, 119 Mass. 148 (1875).
Gift, 1.
As between vendor and vendee delivery is not = Eeed V. Philadelphia, &c. E. Co., 3 Housl. S08
necessary to complete a sale of personalty, especially (1866); O'Eannonu. Southern Express Co., 51 Ala. 484
where impracticable;* but as against a third person (1874).
« Hobart v. Littlefield, 13 E. L 348 (1881), cases; Hall-
'State V. McMahou, 53 Conni 415 (1886); Common- garten v. Oldham, 135 Mass. 3-18 (1883), cases.
wealth V. Latin ville, 180 Mass. 386 (1876). ' Ostrander v. Brown, 16 Johns. 43 (1818); 3 N. T. 822;
' Fishback v. Van Dusen, 33 Minn. 116-48 (1885), cases, 11 F. E. 284.
Mitchell, J. » Confield v. Baltimore, &g. E. Co., 93 N. Y. 638 (1883),
" Bolin V. HufEn^le, 1 Eawle, *20 (1828).
* 1 Bouvier, 602, cases; 89 HI. 218; 71 N. T. 293; 8 Bl. " Michigan Central E. Co. v. Mineral Springs Manuf.
Cora. 313-16; 1 Pars. Gontr. 530; 8 Kent, 608. Co., 16 Wall. 387 (1873), cases.
' Wyoming Nat. Bank v. Dayton, 108 U. S. 59, 68 ' Forbes v. Boston, &c. E. Co., 133 Mass. 158 (1882).
<1880); Hare, Contr. 450. s See E. S. § 938; 81 Wall. 98; 110 U. S. 880.
DELIVERY 337 DELUSION

at first delivered on the land in lieu of livery of seisin.

otect letters, (postal-cards, and packets),
Qt by mail, from embezzlement, and from Finally, any delivery of the deed or any act intended
to stand for such delivery became effectual to pass the
terference, with the improper designs
erein enumerated, until they reach their Delivery in fact, by the officers of government, of re-
istination by actual delivery to th« persons title.' corded letters-patent for land, or of a charter, or of a
ititled to receive them.' commission to an office, and the like, in which the act of
delivering is purely ministerial, may not be essential ;
3. As to the delivery of telegrams, see
it is enforceable by mandamus.^ Compare Livery.
EIEGRAPH.
4. In the law of sealed instruments, the DELUSION. "Insane delusion" and
"morbid delusion," as equivalent expres-
nal, absolute transfer to the grantee of a sions, are common in medical jurisprudence.
)mplete legal instrument sealed by the If a person persistently believes supposed facts,
rantor, covenantor, or obligor. As a popu- which have no existence except in his perverted im-
tr word, signifies mere tradition. ^ agination, and against all evidence and probability,
A deed takes effect only from its tradition or deliv- and conducts himself, however logically, upon the as-
•y, which may be absolute or conditional. sumption oftheir existence, so far as these imagined
Absolute delivery. A delivery to the facts are concerned he Is under a " morbid delusion; "
rantee himself. Conditional delivery. and delusion in that sense is insanity."
" Insane delusion " is an unreasoning and incorrigi-
'o a thu-d person to hold till some condition ble belief in the existence of facts which are impossi-
] performed by the grantee.^ ble of existence, either absolutely or under the circum-
In the latter case the instrument is delivered as an stances, and which, in most cases, relate to something
escrow " — as a scrowl or writing, not to take effect as affecting the senses. WhUe the delusion may concern
deed till the condition is performed.' the relations of the party with others, generally it cen-
ters around himself, his cares, sufferings, rights and
A delivery of a legal obligation made upon condl-
ion does not become a legal delivery until the condi- wrongs. It comes and goes independently of the ex-
ion is fulfilled.* ercise of will; it is not the result of reasoning and
The delivery of a deed is essential to the transfer of refiection, nor can it be dispelled by them. A convic-
itle. It is the final act, without which other formal- tion foimded upon evidence, upon a comparison of
ties are ineffectual. The gi-antor must part with pos- and arguments, is not an insane delu- '
ession of the deed or the right to retain it; registry facts, opinions,delusion does not relate to mere senti-
sion. Such a
ments or theories or abstract questions in law, politics,
oay justify a presumption of delivery."
While a delivery of a deed is essential to pass an or religion: all which are subjects of opinions,—
be-
state, and there can be no delivery without surrender liefs founded upon reasoning and refiection, and liable
>f the instrument or the right to retain it, such de- to be changed by stronger external evidence or by
the
ivery wUl be presumed, in the absence of direct sounder reasoning. . In the law of homicide
ividence, from the concurrent act of the parties rec- subject is important only as it throws light upon the
>gnizing a transfer of the title.' question of knowledge of or capacity to know right
that
Surrender and acceptance are necessary to a com- and wrong. If a man is under an insane delusion
pete delivery.' his life and kills him in self-
another is attempting an
Its importance arises from the fact that the deed defense he does not know that he is committmg
insanely believes he has
las taken the place of the livery of seisin of feudal unnecessary homicide. If he
to
;imes, when, to give effect to the feoffment of the
new a command from the Almighty to kill, it is difficult
hmi to
tenant, the act of delivering possession in a
public understand how he can know it is wrong for
investiture kill.' See Insanity.
manner was the essential evidence of the
nce
of title to the land. This diminished in importa ,
until the manual delivery of a piece of turf,
and other 1 United States v. Schurz, 102 U. S. 398, 397(1880)
this (1886), cases;
"symbolic" acts, became sufficient. When aU cases. Miller, J. See 30 Cent. Law J. 44^
(IbSO,
passed away and the creation and transfer
of estates 33 id. 8-10 (1886), cases; 26 Am. Law Eeg. 451-65
or " deed " of cases; 4 Kent, 466; 2 Wash. E. P. 677.
by a written instrument, called the actinstrument was > Seaman's Friend Society r. Hopper, 33 N. Y,
634
the party, became the usual mode, the
(1869), oases. Will, 54 ,„„
Barb. ,, 289
(1882). (1866), Denio, C. J.; Re Forman's
1 United States v. McCready, 11 F. E. 336, 234
ey, J. 188 (Jan.
"Black V. Shreve, 13 N. J. E. 461 (1860), Whelpl 'United States v. Guiteau, 10 F. E. 170-71,
s [2 Bl. Com. 307; 30 Wis. 646. 25, 1882), Charge of Judge Cox. See note by Francis
*McFarlandi;.Sikes, 54 Conn. 250(1886). Whari»n, ib. 189; Commonwealth
v. Rogers, 7 Mete.
Field, J.; 5 (1870); State ^^
>Younge v. Guilbeau, 3 Wall. 641 (1865), ^3 (1844) State u Pike, 49 N. H. 433
id. 81; 79 Pa. 15; 4 Del. Ch. 311. Jones, 60 id. 395 (1871): Dew v. Clarke
, 3 Addams ,9
J. See Ire- ld v. Morns s Ex-
e Gould V. Day, 94 IT. S. 412 (1876), Field, by (1826) AS to wUls and deeds, Duffie
land V. Geragh ty, 16 F. E. 45-46 (1883), oases,- note ecutor, Harr.,
2 Del., 380 (1838); Gass's Heirs « Gass
s
M. D. Ewell. „ , ,„ „„ Eobinson -• Adam=.«
195; 102 Executor, 3 Humph. 383 (1843);
V Best V. Brown, 35 Hun, 324 (1881); 6 Barb. Me 401 (1870); in general, Buswell, L. § 37.
Insanity, |§ 13-15,
111.287; 23Ind.?9. cases; 1 Eedf. WUls, 40; 1 Whart.
Cr.
 • DEMESNE
DEMAND 338

DEMAND. 1. Any account upon which personally, at his place of business or at his residence,
or sufficient excuse for not making demand must be
money or other thing is, or is claimed to be,
shown. Reasonable diligence must be used to find
due.i the maker, his residence and place of business.'
A claim ; a legal obligation." A note payable " on demand after date " is not a
The most comprehensive word in law, except claim. note "payable on time," within the meaning of the
A release of demands discharges all sorts of actions, Massachusetts statute of 1874, c. 404. »
rights, titles, conditions before or after breach, execu- See Claim; Indorsement; Payment; Request;
tions, appeals, rents, covenants, annuities, contracts, Stale.
recognizances, etc.' Includes, also, a cause of action,* DEMENTIA. Mental derangement ac-
and a judgment.^ Is more comprehensive than "debt"
or *' duty." * companied bygeneral derangement of facul-
The meaning may be restricted, as, to debt upon
contract.^ Characterized by forgetfulness, inability to follow
Demandant. One who demands a thing ties.'train of thought, and indifference to passing
any
as due; specifically, the plaintiff in a real events.'
An impaired state of the mental powers,
action, as, partition.
feebleness of mind caused by disease and
Cross-demand ; counter-demand. A
demand set up as against another demand not accompanied by delusion (g. v.) or un-
on which claim is or can be made; a set- controllable impulse. <
May exist without complete prostration.
off, q. V. Senile dementia. That peculiar decay of the
2. A request, made under claim of right, mental faculties which occurs in extreme old age, and
to do some specified thing. in many cases much earlier, whereby the person is re-
Required, in some cases, to fasten willfulness upon duced to second childhood and sometimes becomes
a person who refuses to perform a duty. Thus it is wholly incompetent to enter into a binding contract or
made: for payment of rent, before re-entry; under a even to execute a will. It is the recurrence of sec-
contract for marriage, before action can be brought ond childhood by mere decay.'
See further Insanity.
for breach of promise; in cases of illegal harboring
of servants, and of illegal detention of personalty; in DEMESNE.^ Own, one's own; original.
cases of refusal to obey orders of court; in other Demesne land. Land reserved by the
matters of contract and of tort."* lord of a manor for the use of himself and
Demand and refusal are never necessary, except as
furnishing evidence of an unlawful taking or deten- household.'
tion against the rights of the true owner, in an action of Ancient demesne. Tenure of manors be-
replevin, or of an unlawful conversion in an action of longing to the crown in the days of Edward
trover. When the circumstances, without these, are the Confessor and William the Conqueror,
suf&cientto prove such taking or detention, a demand
and referred to in Domesday book.s
and a refusal are superfluous.'
On demand. In a note, does not make Demesne lands of the crown. Reservations
of the crown at the original distribution, or
•the demand a condition precedent to a right
such as came to it afterward by forfeiture
•of action ; imports that the debt is due and
demandable immediately, or at least that the or other means.'
Comprised divers manors, the tenants of which had
commencement of a suit therefor is a suffi-
peculiar privileges.^
cient demand. 1" Seised in his demesne as of fee.
When the promise is not to pay the note at a par- Formal words expressing the highest estate
ticular place demand must be made upon the maker
a subject can have in land. It is his property
» Stringham v. Supervisors, 24 Wis^ 600 (1869), Dixon, or dominicum, since it is for him and his
Chief Justice.
■^ Hollen V. Davis, 59 Iowa, 447 (1888): Code, § 3591. 1 Demond v. Bumham, 133 Mass. 341 (
■s Coke, Eitt. 291 6; 8 Eep. 299; 1 Denio, 261 ; 6 W. & S. 2 Hitchings v. Edmands, 133 Mass. 339 (
226. ' [Hall V. Unger, 4 Saw. 677 (1867), Field, J.
* Saddlesvene v. Arms, 32 How. Pr. 285 (1866). * Dennett v. Dennett, 44 N. H. 637 (1863), Bell, C. J.
0 Henry v. Henry, 11 Ind. 23" (1858). See 2 Eedf. Sur. 133; 3 Wash. 680; 4 id. 262; 3 Am. L.
■Sands v. Codwise, 4 Johns. *558 (1808); Re Denny, Reg. 449; 2 Abb. C. C. 511.
&C. Co., 2 HUl, 283 (1842). » 1 Redfleld, Wills, 63, 94. Owing's Case, 1 Bland's
' HeacockT). Sherman, 14 Wend. 59 (1835). Ch. 389 (1828).
s See 1 Bouvier, 504, cases. * F. : L^ dominium, ownership. Cf . Domain; .Assault,
» Edmunds v. Hill, 133 Mass. 446 (1882). Son, etc.
' 2 Bl. Com. 90.
i» Young U.Weston, 39 Me. 494 (1855) cases; Byles,
Bills, 409, cases by Sharswood; a Pars. N. & B. 639, «2B1. Com. 99; 1 id. 886.
« 1 Bl. Com. 288.
DEMIJOHN 339 DEMONSTRATION

heirs forever, not al)solute, but in a qualified A false description, whether of subject-matter or
parties, does not vitiate the instrument where the
or feudal sense ; and as of fee, because not
error appears upon its face and the waiting itself sup-
purely and simply his own, since it is held plies the means of making the correction. '
of a feudal superior.i Applied to a devise the rule means that if there be
The owner of an incorporeal hereditament is. said a sufficient description, with reasonable certainty of
to be "seised as of fee." and not "in his demesne; " what was meant to pass, a subsequent erroneous ad-
since he has no property in the thing itself, but some- dition will not vitiate the devise. The characteristic
thing derived out of it.' of cases within the rule is that the description as far
" Seised in his demesne as of tee " is an allegation as false applies to no subject at all, and as far as true
that the person is seised in fee-simple.' applies to one only.^
DEMIJOHN. See Bottle. The maxim is of universal application as far as it
DEMISE.^ In a lease for years creates an means that we may reject, as surplusage, u, false de-
implied warranty of title and a covenant scription not vital to the object of the controversy.*
Falsa demonstratione legatnm non
for quiet enjoyment.*
perimi. By erroneous description a legacy
In a lease under seal implies a covenant, is not destroyed.
and in a lease not under seal a contract, for
A bequest is not to be held void because of inaccu-
title in the lessor. "Let "or an equivalent rate language used in speaking of it.* See further
word has the same effect.5 See Lease. Demonstration, 2.
Demise and redemise. A conveyance by DEMOCBATIC.s See Government.
mutual leases of the same land, or of some- DEMONSTRATION. 1. Proof which
thing out of the same, made by one party to excludes possibility of error. 6
the other ; as, in a grant of rent-charge. See A conclusion from a universal major pre-
next word. mise, producing absolute certainty.'
DEMITTEEE. L. To demise, lease, let. Mathematical truth alone is susceptible of this high
Ex demissione. By demise. degree of evidence; matters of fact are proved by
moral evidence.®) ^ See Certainty; Evidence, Moral.
Used in entitling common-law actions of ejectment.
Abridged ex dem, and d: as, Doe d., or ex dem.t Pat- 2. Whatever is said or written to desig-
terson V.Winn.* nate a person or thing ; designation ; descrip-
Non. demisit. He did not let or lease. tion.
A plea to an action for rent on a parol agreement. Demonstrative. Pointing out specific-
DEMONSTRATIO. L. A showing, ally ;designating particularly : as, a legacy
pointing out : designation, description, dem- payable out of a particular fund. See
onstration, q.V. Legact.
Falsa demonstratio non nocet. Erro- An erroneous description does not render an instru-
neous description does not vitiate. Spoken ment inoperative where the thing or person intended
can be identified. As far as inapplicable it will be re-
of as the maxim falsa demonstratio.
jected; particularly so when merely additional to
When an instrument contains an adequate descrip-
another description or reference which is unambigu-
tion of a thing, with convenient certainty as to what
was intended to be specifled, a subsequent erroneous ous: as where, in the same instrument, land is cor-
rectly described by boundaries and wrongly described
reference or addition will not vitiate the instrument.
This qualification is sometimes expressed by the by parcel or number.** See further Demonstratio;
Description.
phrase cum constat de corpore or de persona: when it
comports with the subject-matter or with the person. ^
' Dodd V. Bartholomey, 44 Ohio St. 175 (1886), Min-
' 2 Bl. Com. 106. shall, J.
s Butricki). TUton, 141 Mass. 94 (1886). = Morrell v. Fisher, 4 Exch. •604 (1849), Alderson, B. ;
' F. dimettre, to put away, lay down: L. dismittere, 113 U. S. 447.
demittere. ' Broom, Max. 629; 1 Whart. Ev. % 945.
« Stott V. Rutherford, 102 U. S. 109 (18r5), cases, Con- 'Broom, Max. 645; 3 Bradt. 144, 149.
rad V. Morehead, 89 N. C. 34 (1883). « In Beardsley v. Bridgeport, 63 Conn. 493 (1886), used
» Foster v. Peyser, 9 Cush. 246-47 (1852), cases; Me^ in a charitable bequest.
calf, J., quoting Parker, B., in Hart v. Windsor, 12 M. « [1 Qreenl. Ev. § 1.
& W. 68 (1844); Wilkinson v. Clauson, 29 Minn. 93 (1882); ' [1 Whart. Ev. § 7.
8 Ala. 320; 50 Conn. 509; 18 Mass. 201; 9 N. H. 219; 7 8 1 Greenl. Ev. % 301. See White v. Luning, 93 U. S.
Wend. 210; 26 Mo. 112; 5 Whart. 278; 103 Pa. 472. 524 (1876); Springer v. United States, 103 id. 693 (1880);
" 5 Pet. 23-3 (1831) ; 7 T. E. 886. Noonan v. Lee, 2 Black, 604 (1882); Cleayeland v. Smith,
' See Thomas v. Thomas, 6 Durnf. & E. 676 (1769), 2 Story, 291 (1843); Ham v. San Francisco, 17 F. E. 121
Kenyon, C. J.; Qeaveland v. Smith, 2 Story, 291 (1842); (1883); 103 111. 364; 7 Cush. 4e0; 43 Pa. 481; 4 C. B. 328;
71 Cal. 147: 65 Wis 270; 67 id. 289. 11 id. 208; 14 id. 122; 2 Pars. Contr. 660, u.
 DEMURRAGE 340 DEMUREER

A demurrer in equity is nearly of the same nature

DEMUERAGE.i i. The delay or pe-
as a demurrer in law, being an appeal to the judgment
riod of delay of a vessel in port. of the court whether the defendant shall be bound to
2. The sum fixed by the contract of car- answer the plaintiffs bill; as, for want of sufficient
riage as remuneration to the ship-owner for matter of equity therein contained; or where the
detention of his ship beyond the days al- plaintiff, upon his own showing, appears to have no
lowed for loading or unloading. right; or where the bill seeks discovery of a thing
It is usual to calculate this sum at so much per day, which may cause a forfeiture of any kind, or may
and to specify the days allowed for demurrage. convict a man of criminal misbehavior. If the defend-
An extended freight or reward to the vessel in cona- ant prevails the plaintiff's bill is dismissed; if the de-
pensation for the earnings she is improperly caused murrer isoverruled the defendant is ordered to an-
to lose. Every improper detention may be considered
a demurrage, and compensation under that name be Demurring is incident to criminal cases when the
swer.'
obtained for it.^ fact alleged is admitted to be true but the prisoner
joins issue upon a point of law in the indictment, by
Not allowed for delay caused by unloading in ac- which he insists that the fact as stated is not the crime
cordance with the custom of the port.^ See Working-
' it is alleged to be. . Since the same advantage
days.
may be had upon a plea of not guilty, or by arrest of
DEMUBREIl.* A declaration that ' ' the judgment when the verdict has established the fact,
party will go no further, because the other demurrers to indictments are seldom used.''
has not showed sufficient matter against General demurrer. An exception in
him ; " imports that the objector will wait general terms to the sufficiency of a pleading
the judgment of the court whether he is as a whole. S^iecial demurrer. Alleges
bound to proceed. 5 a jjarticular material imperfection.
An admission of the fact, submitting the In a general demurrer at law no particular
law to the court. ^ cause of exception is alleged ; in a special de-
The tender of an issue in law upon the murrer the particular imperfection is pointed
facts established by the pleading.'' out and insisted upon.3
Also, the act of tendering such an issue; In equity practice the formula for a general
and, the writing in which the tender is made. demurrer is that there is no equity in the bill ;
Demur. To object for legal insufficiency ; in the case of a special demurrer the particu-
to interpose a demurrer. lar defect or objection is pointed out.^
Demurrable. Admitting of a demurrer. A general demurrer lies for deffects of substance; a
Demurrant. One who demurs; a de- special demurrer lies for defects of form, and addsto
mur e . I the terms of the former a specification of the particu-
lar ground of exception. Thus, alleging a defective
In law, or at common law, an issue upon matter of
title is a fault in substance for which the party may
law is called a " demurrer: " it confesses the facts to demur generally; but if a title be defectively stated it
be true as stated by the opposite party, but denies
is a fault inform which must be specifically assigned
that, by the law arising upon those facts, any injury is
for cause of demurrer. Under statutes of 27 Eliz.
done to the plaintiff, or that the defendant has made
(1585), c. 5, aud 4 and 6 Anne (1706), c. 16, unless imper-
- out a legitimate excuse. The party who demurs, de- fections, omissions, defects, and other matters of like
moratur, rests or abides upon the point in question.
The form is by averring the declaration or plea, the nature be specifically and particularly set down and
replication or rejoinder, to be insufficient in law to shown for cause of demurrer, the court gives judg-
ment according to the very right of the cause without
maintain the action or defense; and, therefore, pray-
regarding the imperfections, omissions, etc.^
ing judgment for want of sufficient matter alleged. ^
Where the objection is to the substance of the alle-
gation, ageneral demurrer is sufficient; where to a de-
1 L. demorari, to'fetay: mora, delay. fect in form, a special demmTer is indispensable. But
' Donaldson v. McDowell, 1 Holmes, 293 (1873), Shep- neither demurrer is good unless the objections are ap-
ley, J. See S6 N. Y. 85 ; 6 Phila. 112 ; 4 Rand. 510 ; L. R. , parent upon the face of the bill, from matter inserted
or omitted, or from defects in the frame or form .of
10
Com.Exch.L. 42B. 135; 2 Kent, 159; 2 Pars. Con'tr. 304; 3 Chitt.
the pleading, s, •
" The Elida, 31 F. E. 420 (1887).
* F. demourer, to tarry, stay, hesitate: L. de-morari, 1 3 Bl. Com. 446. See 6 Pet. 327.
to delay fully, rest: mora, delay. " 4 Bl. Com. 333-34.
"Leaves v. Bernard, 6 Mod. *132 (1696); 2 Ark. 117; = Christmas v. Eussell, 5 Wall. 303 (1866), Clifford, J. :
Stephen, PI. 6f; Coke, Litt. 71 b. 1 Chitty, PI. 663; 2 Johns. 428.
' [Exp. Vermilyea, 6 Cow. 559 (1826); Havens v. Hart- ■•Gindrat v. Dane, 4 Cliff. 262 (1874); Story, Eq. PI.
ford, &c. E. Co., 23 Conn. 89-93 (1859).
■ Goodman v. For,d, 23 Miss. 595 (1858), Smith, 0. J. ' Commonwealth v. Cross-Cut E. Co., 63 Pa. 66 (1866):
8 3 Bl. Com. 314. Stephen.
§455. PI. 161; 1 Saunders, PI. & Bv. 950. See also
 DEMURRER 341 DEMURRER

A demurrer admits juriadiotion and such matters of Where the demmrer goes to the form of the action,
fact as are relevant and well-pleaded; but not conclu- to a defect in pleading, or to the jurisdiction of the
sions of law drawn from the facts,' nor matters of com-t, the judgment will not preclude future litigation
inference or argument. '^ on the merits of the controversy in a court of compe-
Upon either a general or a special demurrer the tent jurisdiction upon proper pleadings; and where it
opposite party must aver the matter or the form to be goes both to defects of form and to the merits a judg-
suf&cient, which is called a "joinder in demurrer," ment not distinguishing between the two grounds may
and then the parties ai'e at issue — which the court be presumed to rest on the former. But where the
must determine. 3 demurrer is to a pleading setting forth distinctly spe-
In England special demurrers were abolished by the cific facts touching the merits of the action or defense,
procedure act of 1852, s. 51. and final judgment is rendered thereon, it woidd be
A party may both demur and plead. By pleading difficult to find any reason in principle why the facts
over, the right to demm- mf.y be waived.' The right admitted should not be considered for all purposes as
to amend, after a demurrer has been sustained, is dis- fully established as if found by a jury or admitted in
cretionary with the court. "* open court. If the party against whom a ruling is
A demurrer cannot be good in part and bad in part ; made wishes to avoid the effect of the demurrer as an
it must be sustained or fail to the whole extent to admission of the facts he should seek to amend his
which it is interposed.** pleading or answer, as the case may be. Leave for
The coiu-t decides for the party who, on the whole, that purpose will seldom be refused upon a statement
seems best entitled to a judgment.^ The judgment is that he can controvert the facts by evidence. If he
as conclusive as a, verdict. ^ That a demurrer was does not ask permission the inference may justly be
made caimot be used as an admission of a fact.® drawn that he is luiable to produce the evidence, and
Propositions deducible from the authoi-ities are: (1) that the fact is as alleged in the pleading.'
A judgment rendered upon a demurrer to a declara- Speaking demuf rer. A demurrer which
tion or other material pleading setting forth the facts introduces some fact or averment, necessary
is as conclusive of matters admitted as a verdict
would be, since the facts are established in the former to support it, not appearing distinctly upon
case, as in the latter, by matter of record ; and the the face of the bill.^
rule is that facts thus established can never afterward Demurrer to evidence. When a rec-
be contested between the same parties or those in ord or other matter is produced as evidence,
privity with them. (2) If judgmeut is rendered for the
concerning the legal effect of which there
defendant, the plaintiff can never afterward maintain
against him or his privies any similar action for the arises a doubt, and the adverse party demurs
same cause upon the grounds disclosed in the declara- to the same as evidence, s
tion: the judgment determines the merits of the A proceeding by which the court is called
cause; a final judgment determining the right ends a upon to say what the law is upon the facts
dispute, else b'tigation would be endless.'"
A demiurrer to a complaint because it does not state shown in evidence.*
The demurrant admits the truth of the testimony,
facts suflBcient to constitute a cause of action is equiv-
and such conclusions as a jiu-y may fau-ly draw; but
alent to a general demurrer to a declaration at com- not forced and violent inferences. The testimony is
mon law, and raises an is-sue which, when tried, will
finally dispose of the case as stated in the complaint, to be taken most strongly against him, and such con-
clusions as a jury may justifiably draw the court
on its merits, unless leave to amend or plead over is
granted. The trial of such an issue is the trial of the ought to draw.*
cause as a cause, not the settlement of a mere matter A demurrer to plaintiff's evidence admits the facts
the evidence tends to prove. The court is to make
of form in proceeding. There can be no other trial
every inference of fact in favor of the plaintiff which
except at the discretion of the court."
a jury might infer. If, then, the evidence is insuffi-
Coke, Litt, 72 a; 8 Bl. Com. 315; 1 Chitty, PI. 642, 16 cient to support a verdict in his favor, the demurrer
Am. ed., *694-95. should be sustained." See Nonsuit.
' Gindrat v. Dane, ante.
^United States v. Ames, 99 U. S. 45-46 (1878), cases; ' Bissell •<;. Spring Valley Township, 124 U. S. 232
14 F. E. 498, cases. See 109 U. S. 253, 550; 80 How. 125. (1888), cases. Field, J.
3 3 Bl. Com. 315. ' [Brooks V. Gibbons, 4 Paige, 375 (1834), Walworth,
' Stanton v. Embrey, 93 U. S. 553 (1876), cases. Ch. See Edsell v. Buchanan, 2 Ves. Jr. *83 (1793); 1
6 United States v. Atherton, 102 U. S. 375 (1880). Sun. 5; 2 Sim. & Stu. 127; 1 Barb. Ch. Pr. 107.
* ' Krst Nat.Bank of St.Paul uHowe, 28 Mlnn.152 (1881). « [3 Bl. Com. 372. See Gould, PI. 446-58; Goodman v.
' See Townsend v. Jemison, 7 How. 703, 714 (1849); 16 Ford, 2.3 Miss. 595 (1852), Smith, C. J.
111. 269; 39 Me. 426; 28 Ala. 637. • Suydam v. Williamson, 20 How. 436 (1857), cases,
'Gould, PI. 444; generally, ib. 438-46. Clifford. J.
= Pease v. Phelps, 10 Conn. 68 (1834); 28 id. 92. 'PawUng V. United States, 4 Cranch, 221 (1803), Mar-
i» Gould V. EvansviUe, &c. R. Co., 91 U. S. 533-34 shall, C. J.; Pleasants v. Fant, 22 Wall. 121 (1874),
(1875), cases, Clifford, J. cases; 77 Va. 212.
"Alley V. Nott, 111 U. S. 475 (1884), Waite, C. J.; 'Donohue v. St. Louis, ^o. R. Co., 91 Mo. 360 (1886);
N. T. Code Civ. Proc. sees. 488, 497. 73 id. 219.
 DENARIUS DEI 343 DEPARTMENT

Demurrer to interrogatory. The rea- legislative, the executive, and the judicial
son a witness offers for not answering a par- departments.
ticular question among interrogatories. In our system, it is important that these depart-
ments be kept separate, that one be not allowed to
DENARIUS DEI. L. God's penny;
money given to the church or to the poor ; encroach upon the domain of another.'
While a general separation has been observed be-
earnest- money, q. v. tween the different departments, so that no clear en-
DENIAL. See Defense, 2. croachment byone upon the province of the other has
DENIZEN.i An alien born who has ob- been sustained, the legislative department, when not
restrained by constitutional provisions and a regard
tained ex donatione regis letters-patent to for certain fundamental rights of the citizen which
make him a subject.^ are recognized in this country as the basis of all gov-
Whence denizenize, dcnizenatioa or denization,^ and ernment, has acted upon eveiything within the range
denizenship. The crown denizenizes; parliament con-
sents to naturalization. of civil government. 2
The executive business of the general government,
A denizen is in a kind of middle state between an
under a permission rather than a mandate of the Con-
alien and a natnral-bom subject, and partakes of
stitution, isdistributed to seven executive "depart-
both. H6 may take lands by purchase or devise, but ments "of equal grade.
not >by inheritance — for the parent has no inheritable . Administration of the duties of these respective de-
lilood.* But since 1870, in England, an alien may hold
partments is committed directly to a "secretary"
and dispose of property as a natural-bom subject. or " head," who, with his principal assistants, is ap-
In South Carolina the status seems to have been
pointed by the President as chief executive, with the
created by law. advice of the Senate.
DENOUNCEMENT. In Mexican law, The departments are designated as of — the iute-
a judicial pi'oceeding equivalent to the in- rior,3 justice,* the navy,"^ the post-office,^ state,'' the
treasury,^ and war.^ The department of agriculture '"
quest of office at common law.""* is of subordinate grade.
DENTIST. See Care; Mechanic; Phy- The head of a department is required to exercise
sician. judgment and discretion in administering the concerns
DENY. See Admission, 3; Defense, 3; of his office. He exercises his own judgment in ex-
Traverse. pounding the laws and resolutions of Congress under
which he is to act. If he doubts, he may call on the
DEODAND.6 Any personal chattel attorney-general for counsel. If the Supreme Court
which was the immediate cause of the death shoiild differ with him as to the construction to be
of a rational creature.^ placed upon any of these laws it would pronounce
The chattel, whether an animal or inanimate ob- judgment accordingly. But the interference of the
ject, was forfeited to the king, to be applied to relig- courts with the performance of the ordinary duties of
ious uses. Designed, originally, as an expiation for the executive departments would be productive of
the souls of such persons as were snatched away by nothing but mischief — such power was never in-
sudden death. If any animal killed a person, or if a tended to be given to them. . . The court by man-
cart ran over him, it was to be forfeited,— in part, damtts may direct the doing of a purely ministerial
also, as punishment for the supposed negligence in act, but not the exercise of a duty requiring judgment
the owner. If the thing was in motion, as, a cart with
and discretion.'!
its loading, all that moved was forfeited; if not in The heads of departments are the President's au-
motion, then only the part which was the immediate thorized assistants in the performance of his " execu-
cause of the death. It mattered not whether the tive "duties, and their official acts, pronaulgated in
owner was concerned in the killing or not. The right
to deodands, in time, was granted to the lords of 1 See Mabry v. Baxter, 11 Heisk. 689-90 (1872).
manors as a franchise.^ 2 Maynard v. Hill, 125 U. S. 205 (1888). As to the in-
Abolished by 9 and 10 Vict. (1846) c. 63. dependence ofthe departments of government, see Si
DEPART. See Departure. Am. Law Rev. 210-37 (1887), cases.
DEPARTMENT. (Adj. Departmental.) 3 R. S. § 437: Act 3 March, 1849.
4 R. S. § 346: Act 24 Sept. 1789.
The departments of government are the
0 R. S. § 415: Act 30 April, 1798.
e R. S. § 388: Act 8 May, 1794.
1 F. deinzein, a trader " within " the privilege of a 7 R. S. § 199: Act 27 July, 1789.
city franchise: deinz, within,— Skeat. s R. S. § 233: Act 2 Sept. 1789.
a 1 Bi. Com. 374; 6 Pet. 116, note. » R. S. § 214: Act 7 Aug. 1789.
8 Webster's Diet.; 1 Bl. Com. 374. '» R. S. § 520: Act 15 May, 1862.
4 1 Bl. Com. 374. ' ' Decatur v, Paulding, 14 Pet. 515-17 (1840), Taney,
6 [Merle v. Mathews, 26 Cal. 477 0864). C. J. ; United States v. Macdaniel, 7 id. *15 (1833) ; Ken-
* L. deo-dandum, given to God. dall u. United States, 12 id. 610 (1638): Litchfield v.
' [1 Bl. Com. 300. Register and Receiver, 9 Wall. 577(1869); Carrick v.
8 1 Bl. Com. 300-2. Lamar, 116 U. S. 426 (1886), cases.
 843
DEPARTURE DEPOSIT

the regular course of business, are presumptively his joined, nor could there be any termination of the suit.
acts.' A departure may be in the substance of the action or
When the head of a department is required by law defense, or in the law on which it Is founded.' '
to give information on any subject to a citizen he Taken advantage of by a demurrer, general or spe-
may ordinarily do this through subordinate officers." cial." Compare Variance; Duplicity. See Assign-
The supervision which the head of a department ment, New.
may exercise over a subordinate does not extend to a DEPENDENT. 1, adj. Not to be per-
matter in which the latter is directed by statute to act formed until a connected thing is done by
judicially.'
See Comity; CoNSTrrcTioNAL; Document, Public; another. Opposed, independent, com-
Executive; QovKRNaBNr; Judioiaby; Legislature; pletely obligatory within itself : as, a depend-
Ministerial, 1; Proclamation, 2; Reoulation. ent, or an independent, contract or covenant,
DEPABTUBE. Parting from, separa- qq. V. Compare Appendent.
tion, going away; relinquishment, derelic- 2, n. A person who is dependent for sup-
tion.
port upon another. 3
1. " Departure from the State," said of a DEPONENT; DEPOSE. See Deposi-
debtor, in a statute of limitations, does not tion.
mean temporary absence from the State, DEPOSIT.* 1, V. (1) To give in charge
while his usual place of residence continues to another person, to commit to the custody
therein, but such absence as entirely sus- and care of another ; to leave with for safe-
pends the power of the plaintiff to commence keepingto
; deliver to for further action, for
his action.* See Abscond; Absence; Start. a special or a genei'al purpose, explained or
2. In marine insurance, deviation from the understood.
course prescribed. " Deposited," in a statute prescribing the duties of
Imports an effectual leaving of the place behind. an election inspector, implies that the depositary must
If the vessel be detained or driven back, though she safely keep the papers committed to his custody until
he surrenders them to the board whose duty it is to
may have sailed, there is no departure." See Devia-
tion. canvass the returns and certify the result of the elec-

3. In pleading, the dereliction of an ante- At an election in which a Congressman is voted for,

cedent ground of complaint or defense for tion."
failure to keep the election papers safely as provided
another distinct from and not fortifying the by law in Indiana is an offense against the United
former ground.* States government."
In the several stages of the process ot pleading a
(2) Specifically, to deliver money or per-
party must not depart or vary from the title or de- sonalty to another for safe-keeping, without
fense he has once insisted on. For this, which is remuneration, until the owner shall request
called a " departure," might occasion endless alterca-
a return of the possession.
tion. Therefore the replication must support the dec-
laration, and the rejomder the plea, without depart- 2, n.' (1) A naked bailment of goods, to be
ing from it.' kept for the bailor without reward, and to be
When a party quits or departs from the returned when he shall require it. 8
case or defense which he has first made, and A bailment of goods to be kept by the
has recourse to another.'
bailee without reward, and delivered accord-
Occurs when, for example, the replication or re- ing to the object or purpose of the original
joinder contains matter not pursuant to the declara-
tion or plea, not supporting and fortifying it. May
arise in the replication or a subsequent pleading. If ' 1 Chitty, PI. 674; Steph. PI. 410; 49 Ind. 112.
trust.9
parties were permitted to wander from fact to fact, ' See 5 Ala. 344; 5 Conn. 379; 16 Mass. *2; 44 Mo. 64;
forsaldng one to set up another, no issue could be 14 Nev. 239; 16 Johns. 206; 20 id. 160; 13 N. Y. 89.
' Ballou II. Gile, 50 Wis. 619 (1880); American Legion
' Runkle v. United States, 122 U. S. 557 (1887). of Honor v. Perry, 140 Mass. 590 (1886).
« Miller v. Mayor of New York, 109 U. S. 335, 394 «L. deponere, to lay away, place aside; intrust to.
(1883). « Be Coy, 31 F. R. 801 (1887), Harlan, J.; Ind. R. S.
» Butterworth v. Hoe, 112 U. S. 50, 55 (1884), cases. 1881, 0. 56.
* Blodgett V. Utley, 4 Neb. 29 0875), Maxwell, J. •United States v. Coy, 32 F. R. 638 (1787), Woods, J.;
"Union Ins. Co.' v. Tysen, 3 Hill, 126 (1842), cases, R S § 6515. Afiftrmed, Sup. Ct., May 14, 1888.
Cowen, J. See Sloop Active v. United States, 7 Cranch, ' Deposite was the old spelling,- 2 Pet. •325; 7 Conn.
100(1812). 495.
« Gould, PI. 421 — Ch. VTII, sec. 65. 8 Jones, Bailm. 36, 117: 17 Mass. 499; 40 Vt. 380.
' 3 Bl. Com. 310.
167.' Story, Bailm. § 41: 8 Ga. 180; 42 Miss. 544; 29 N. Y.
« 1 Chitty, PI. 674; Steph. PI. 410; 49 Ind. 112.
 Deposit 344 DEPOSIT

Also, the thing itself so bailed — goods, ity to use the money, being bound to return
money, or other movable's. it in individuo.^
Depositor. The bailor in a contract of Originally, a deposit of money was made by plac-
deposit of goods. Depositary. The bailee ing a sum in gold or silver with a bank or other de-
positary, tobe returned, when called for, in the same
in a contract; a depositee.! identical coin, and without interest, the depositor pay-
Depository. The place where the goods ing the depositary a compensation for his care. Later,
are received or kept. it became customary to make a deposit for a particu-
General deposit. A deposit which is to lar period, on interest, or payable at prescribed periods
be returned in kind. Special deposit. A after notice. In time, " deposit " became a symbolical
word to designate not only a deposit in its original
deposit to be returned in the identical thing. sense, but all that class of contracts where money in
Qiiasi-deppsit. Possession of another's any form was placed with a bank or banker, to be re-
property obtained by finding it. turned in other money on call or at a specified period,
A depositaiy is bpund to take only ordinary care of and with or without interest. The transaction, in this
the deposit. What this degree of care is varies with figurative use of the term, was in reality the same as
the circumstances of each case. . He is answer- a " loan " of money between individuals."
able for gross negligence, which is considered equiv- Deposits made with bankers may be divided into
alent lo a breach of faith. The degree of care neces- two classes: that in which the bank becomes bailee
sary to avoid the imputation of bad faith is measured of the depositor, the title to the thing remaining with
by the carefulness which he uses toward his own the latter; and that kind of deposit of money, pecul-
property of a similar kind. For although that may iar to banking business, in which the depositor, for
be so slight as to amount even to carelessness in an- his own convenience, parts with title to his money, and
other, yet the depositor has no reason to expect a lends it to the banker, who, in consideration of the
change of character in favor of his particular inter- loan and the right to use the mone.y for his own profit,
est,2 See Bailment; Depositdm. agrees to refund the amount, or any part thereof, on
(2) A delivery of money to a bank or banker
demand."
When the bauker'specially agrees to pay in bullion
upon a contract that an equal sum will be or coin he must do so or answer in damages for its
returned on demand ; also, the money itself. value. But where the deposit is general, and there is
no special agreement proved, the title to the money
This, by pre-eminence, is a "deposit."
Whence bank of deposit, bank-deposits, memoran- deposited passes to the bank, tl^e transaction is un-
dum of deposit, etc. affected bythe character of the money in which the
Depositor. He who deUvers money to a deposit was made, and the bank becomes liable for
the amount as a debt, which can be discharged only
bank, subject to his order. by such nioney as is a legal tender. . When a
General deposit. In this the depositor merchant deposits money with a bank, the rule is, the
parts with title to his money, — lends it to title to the money passes to the bank, and the latter
the bank which agrees to return an equiva- becomes the debtor to that amount.*
Deposits undoubtedl.T may be made with a banker
lent sum on demand. Also called an irregu- under such circumstances that the conclusion would
lar deposit. Special deposit. When the be that the title remained in the depositor; and in that
depositor retains title to the thing delivered, case the banker would become the bailee of the de-
which may be bullion, plate, securities, etc, positor, and the latter might rightfully demand the
as well as money, and the bank becomes a identical money deposited as his property; but where
the deposit is general, and there is no special agree-
bailee under obligation to take ordinary care ment proven inconsistent with such theory, the title
of the article and to return it to the owner to the deposit passes to the banker, and he becomes
when called for. liable for the amount as a debt which can be dis-
In the ordinary case of a deposit of money charged only by a legal payment. . An agreement
to refund all or part of a general deposit may be ex-
with a banking corporation or banker the
press or implied; if express, it may be to refund with
transaction amounts to a mere loan, mutuum, or without interest. The fact that the depositary
or irregular deposit, and the bank is to re- agreed to pay interest affords strong evidence that the
store not the same money, but an ecfuivalent
sum, when demanded. But in the case of a 1 Story, Bailm. § 88; State v. Clark, 4 Ind. 316 (1853).
" Curtis V. Leavitt, 15 N. Y. 166 (1857), Shanklapd, J.
"special deposit" the very coin or bills are > Marine Bank (of Chicago) v. Fulton Bank (of New
to be restored, — ■ the transaction constitutes York), 2 Wall. 256 (1864), Miller, J. Quoted, Phcenix
a genuine deposit ; the banker has no author- Bank u Eisley, 111 U. S. 127 (1883), cases; 92 U. S. 370,
and 80 N. Y. 93, post. See also 34 La. An. 607; 17
1 103 Pa. E34, , Nev. 152.
"Foster v. The Sssex Bank, 17 Mass. 498 (1821), * Thompson v. Eiggs, 5 Wall. 678, 680 (1866), Clifford, J.
Parker, C. J. See 3 Bl. Com. 453. Quoted, 92 U. S. 370, post.
 DEPOSIT 843 DEPOSIT

title to the money passed out of the depositor by the General deposits held by a bank are part of its gen-
act of making the deposit.* eral fund, and loaned as other moneys. The banker
The power to receive deposits includes all the kinds agrees to discharge his indebtedness by honoring
know-n and customary in the banking business. Na- checks drawn upon the deposit. When a check on the
tional banks have power to receive special deposits bank itself is offered, the bank may accept or reject
gratuitously or otherwise: and when received gratui- it or receive it conditionally. If, being genuine, it is
tously they are liable for their loss by gross negli- received as a deposit, when there are no funds, the
gence. When any such bank has habitually received case is an executed contract, and the thing done can-
such deposits, this liability attaches to a deposit re- not be repudiated. Depositors must comply with all
ceived in the usual way. . . The term " special de- reasonable regulations as to depositing and drawing, *
posits "includes money, securities or other valuables It seems to be well settled that a mere check or
delivered to banks, to be specially kept and redeliv- draft does not operate as an assignment or appropria-
ered; itis not confined to securities held as collaterals tion of the drawer's deposit in favor of the payee be-
to loaus. . The cluef, in some cases the only, de- fore acceptance by the bank, but the doctrine has not
posits received by the early banks were special de- been extended beyond instruments of that character,
posits of money, bullion, plate, etc., for safekeeping, drawn in the ordinary form; nor to a transaction not
to be specifically returned to the depositor. . . The restricted to the very terms of such paper.^
definition of the business of banks of deposit, in the A general deposit in a bank is so much money to
ene.yclopedias, embraces the receiving of the money the depositor's credit. It is a debt to him by the bank,
or valuables of others, to keep until called for by the payable on demand to his order; not property capable
depositors. And although, in modern times, the busi- of identification and specific appropriation. A check
ness of receiving general deposits has constituted the upon a bank in the usual form, not accepted or certi-
principal business of the banks, it cannot be said that fied by its cashier to be good, does not constitute a
receiving special deposits is so foreign to the banking transfer of any money to the credit of the holder; it is
business that corporations authorized to carry on that simply an order which may be countermanded, and
business are incapable of binding themselves by the payment forbidden by the drawer, at any time before
receipt of such deposits.^ it is actually cashed. It creates no lien on the money
Section 5283, Rev. St., which provides that it shall which the holder can enforce against the bank. It
be lawful for a national bank after its failure to "de- does not of itself operate as an equitable assign-
liver special deposits," is as effectual a recognition of ment,' q. V.
its power to receive them as an express declaration to A depositor in a bank who sends his pass-book to be
that effect would have been. The phrase " special de- written up and receives it back with entries of credits
posits," thus used, embraces the public securities of and debits, and his paid checks as vouchers for the
the United States.' latter, is bound, with due diligence, to examine the
It is now well settled that if a bank be accustomed pass-book and vouchers, and to report to the bank
to take special deposits, and this is known and ac- without unreasonable delay any errors which may be
quiesced inby the directors, and the property depos- discovered in them ; and if he fails to do so, and the
ited is lost by the gross carelessness of the bailee, a bank is thereby misled to its injury, he cannot after-
liability ensues in like manner as if the deposit had ward dispute the correctness of the balance shown by
been authorized by the terms of the charter.' the pass-book.' See further Bank, 2; Check; Tax, 2.
The contract between a bank and its depositor is Deposit, certificate of. A vtriting, is-
that of debtor and creditor. Money held by a depos- sued by a bank, attesting that the person
itor in a fiduciary capacity does not change its char- named has deposited money with it.
acter by being placed to his credit.* A negotiable security, upon the same footing as a
The right of the depositor is a chose in action, and
his check does not transfer the debt, or give a lien promissory note. It is treated as money.' See Cur-
rency.
upon it to a third person, ivlthout the assent of the
depositary.' 1 See Thompson v. Eiggs, Scammon v. Kimball,
I Scammon v. Kimball, 92 U. S. 369-70 a875), Clif- ante; Fu-st Nat. Bank of South Bend v. Lanier, 11
ford, J. Wall. 375 (1870); First Nat. Bank of Cincinnati v.
s Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 89, 94 Burkhardt, 100 U. S. 689 (1879); Chesapeake Nat.
(1880), cases, JEJapallo, J. Earliest case, Foster v. The Bank v. Connecticut Mut. Ins. Co., 104 id. 54, 64-71
Essex Bank, 17 Mass. 478, 498 (1821), Parker, C. J.,— in (1881), cases.
which the special deposit was a cask containing 853,000 2 Coates V. First Nat. Bank of Emporia, 91 N. Y. 26
in gold coin.
s First Nat. Bank of Carlisle v. Graham, 100 U. S. ' Florence Mining Co. v. Brown, 124 U. S. 391 (1888),
703, 702 (18r9), Swayne, J.: 79 Pa. 106. See further Field, J.
Prather v. Kean, 89 F. E. 498 (1887): 20 Am. Law Reg. * Leather Manufacturers' Bank v. Morgan, 117 U. S.
93; 16.97-98 (1887), cases. 100 (1830), cases, Harlan, J. See same case. Account, 1.
* Chesapeake Nat. Bank v. Connecticut Mut. Ins. On relation of depositors to bank, see further
Co., 104 U. S. 64-71 (1881), cases. See 37 N. J. E. 18. Fletcher v. Sharpe. Sup. Ct. Ind. (1887), cases: 26 Am.
= Nat. Bank of the Republic v. Millard, 10 Wall. 167 Law Reg. 71; ib. 74-S2 (1887), cases. As to fiduciary
(1869), cases; Rosenthal v. The Mastin Bank, 17 Blatch. depositors, see ib. 25, 29-30 (1887), cases. Gregg u. Union
3»-23 (1879), cases. sWelton V. Adams, 4 Cal. 39 (1854);
 DEPOSIT DEPOSITION
346

By virtue of the assurance given, the credit of the

Deposit in lieu of bail. One charged
bank is added to the credit of the original debtor.' with a crime or tort in some cases may make
A certificate is a subsisting chose in action and rep*
resents the fund it describes, as in cases of notes, a deposit of money or valuables, instead of
bonds, and other securities; so that a delivery of it as furnishing bail for his appearance at the
a gift constitutes an equitable assignment o£ the
hearing or trial.i
money.* Deposit of title deeds. Pledging the
When in the usual form, payable to the order of the
depositor, is in the nature of commercial paper, and title deeds to the owner's estate as security
the payee is chargeable upon his indorsement thereof. for the repayment of a loan.
Its negotiable character is not affected by the fact that In effect an equitable mortgage, q. v.
a demand is necessary before an action can be main- DEPOSITION.^ Sometimes is synony-
tained thereon ; nor is it changed by a provision therein mous with " affidavit " or "oath;" but, in
by which it is made payable in current bank-notes. . . its more technical and appropriate sense, is
An indorser of the certificate is liable as such, until
limited to the written testimony of a witness
actual demand made; and the holder is not charge-
able with neglect for omitting to make such a demand given in the course of a judicial proceeding,
within any particular time.^ at law or in equity. ^
A certificate of deposit is, in effect, a negotiable "Deposition" is a generic expression, embracing
promissory note; and the statute of limitations begins all written evidence verified by oath, and thus includes
to run from the date of issue, without the necessity of "affidavits;" but, in legal language, a deposition is
demand of payment.* evidence given by 'a witness under interrogatories,
If lost before it is indorsed by the depositor no title oral or written, and usually written down by an ofid-
vests in the finder, and the bank cannot require of the cial person; while an affidavit is the mere voluntary
depositor indemnity against possible future loss, al- act of the party making the oath, and is generally
though the money by the terms of the certificate is taken without the cognizance of hihi against whom it
payable '* on return of the certificate." ^ is to be used. Yet the terms may be convertible, as
By implication of law, contains a promise to repay in the rules at law of the Supreme Court.*
the money, and cannot be varied by parol evidence.* Depose. Originally, to give testimony
Deposit oompany. An association under oath, to testify; in present usage, to
which, having provided a building con- give testimony which is officially written
structed for protection against loss by theft down for future use. Deponent. One
or fire, and having furnished the same with who, being under oath, testifies in writing.
boxes or safes for the deposit of securities, A deponent is 'a witness who depones (deponif), i. e.,
jewels, papers, etc., invites the public to places his hand upon the book of the Evangelists while
lease the boxes or receptacles, the association he is being bound by the obligation of an oath. Depose,
deponent, and deposition related, originally, then, to
insuring the safety of deposits against the the mode in which the oath was administered, not to
acts of all persons except the depositors them- the testimony itself as oral or written.^
selves. Depositions are taken of witnesses out of the juris-
A fuller name is " safe deposit and trust company." diction, or aged, infirm, sick, or going abroa.d, upon
Where bonds were found to be missing from a box written interrogatories, the answers to be used as evi-
so rented the company was held bound to explain the dence in the event of their death or departure before
absence of the bonds, and, in default of evidence of trial, or of their inability to attend the trial. Testi-
negligence or guilt in the depositor, to pay him the mony in equity, and much in admiralty and divorce,
value of the bonds.' is tiius taken, as is also testimony at preliminary ex-
The robbery by burglars of securities deposited for aminations incriminal causes; but, in the last case, is
safe-keeping in the vaults of a bank is not proof of not admissible at trial, except, perhaps, by consent of
negligence on the part of the bank.s the accused.' See further Dedimus.
The testimony of any witness may be taken in any
County Nat. Bank, 87 Ind. 239 (1882), cases; Poorman civil cause depending in a district or circuit court by
V. Woodward, 21 How. 276 (1858); 27 N. Y. 378. deposition de bene esse, when the witness lives at a
1 Downey v. Hicks, 14 How. 249 (1852). (
greater distance from the place of trial than one hun-
= Basket v. Hassell, 107 XT. S. 614 (1888).
3 Pardee v. Fish, 60 N. Y. 266, 268-69 (1876), cases. di'ed miles, or is bound on a voyage to sea, or is about
to go out of the United States, or out of the district in
' Carran d. Witter, Sup. Ct. Wis. (1887), cases, Lyon, J. ;
35 Alb. Law J. 383 (1887), cases. ' See Commercial Warehouse Co. v. Graber, 45 N. Y.
' Citizens' Nat. Bank v. Brown, Sup. Ct. Ohio (1887), 394 (1871); 31 Hun, 231; 18 Abb. N. Cas. 333-34 (1886),
cases: 36 Alb. Law J. 36. cases.
» Lang «. Straus, Sup. Ct. Ind. (1887), cases: 26 Am. " L. de-ponere, to put, place; to lay down or aside.
Law Reg. 115. See generally 24 Cent. Law J. 196 (1887), » State V. Dayton, 33 N. J. L. 54 (1850), Green. C. J.
* Stimpson v. Brooks, 3 Blatoh. 456-57 (1856), Betts, J.
' Safe Deposit Co. v. Pollock, 85 Pa. 391 (1877). ' [Bliss V. Shuman, 47 Me.252 (1859), Appleton, J.
8 WyUe u Northampton Bank, 119 U. S. 361 (1886). »See3Bl. Com. 383.438.
 DEPOSITUM 347 DERAIQN

which the case is to be tried, or to a greater distance 3. A place where passengers get on and off
than one hundred miles from the place, of trial, before the cars, and where goods are loaded and
the time of trial, or When he is ancient or infirm.' unloaded.
Such deposition can only be read upon proof that
the attendance of the witness upon the trial cannot be All ground necessary or convenient and
procured." actually used for these purpo.ses is included.i
Cases in equity are taken to the Supreme Coiu't from See Railroad; Station, 2.
the circuit courts, and the district courts sitting as cir-
DEPRIVE. Referring to property taken
cuit courts, by appeal, and are heard upon the proofs
under the power of eminent domain, means
sent up with the record. "The mode of proof," by
section 862, Rev. St., " shall be according to the rules theWhile
sametheasFourteenth
"take." 2Amendment ordains that no
now or hereafter prescribed by the supreme court,
except as herein specially provided." The circuit State shall "deprive any person of lite, liberty, or
courts are not now by law required to permit the ex- property without due process of law," no definition of
amination of witnesses orally in open court upon the the word " deprive " is found in the Constitution. To
bearing of cases in eqmty. But if such practice is determine its signification, therefore, it is necessary
adopted, the testimony must be taken down, or its sub- to ascertain the effect which usage has given it when
stance stated in writing and made part of the record.' employed in the same or a like connection.' See
Formerly, in England, the mode of examlniiLg wit- further Take, 8.
nesses in equity was by interrogatories in writing. . . DEPITTY.* One who acts officially for
At the December term, 1861, of the Supreme Court, a
new practice was introduced. Kule 67 was so amended another; the substitute of an officer —
as to make oral examination the rule, if either party usually of a ministerial officer.
desires it, and examination by written interrogatories Deputize. To appoint another to act in
the exception.* one's own place or office.
Congress has not empowered the district and cir- General deputy. A deputy who is em-
cuit courts to make niles touching the mode of taking
testimony. . . Depositions taken under a State law
powered to perform all the ordinary duties
in conflict with the provisions of the act of Congress of an office. Special deputy. A deputy
in relation thereto are not admissible in evidence.' chosen to do a particular g.ot or acts.
A deposition filed is the property of the court; if An attorney -general, a district-attorney, a collector
the testimony is material it should be used. Some of revenue, a mayor, a constable, a marshal, a sheriff,
courts hold that it is as competent for one party to a minister or consul, and other officers, are sometimes
read a deposition filed by the other party as to intro- said to act by deputy.
duce a witness summoned in his behalf." See Inter- There are two kinds of deputies of a sheriff; a gen-
EOOATORY.
eral deputy or under sheriff who by virtue of his ap-
DEPOSITUM. L. A naked bailment pointment has authority to execute all the ordinary
duties of the ofBce of sheriff. He executes process
without reward, and without any special un- without special power from the sheriff, and may even
dertaking.' delegate authority for its execution to a special deputy,
So called because the naked custody is given to an- who is an officer pro hoc vice, to execute a particular
other,* See Deposit, 1; Depot, 1. writ on some certain occasion. He acts under a spe-
DEPOT. 1. In French law, dipdt is the cific, not a general, appointment and authority. '
depontum of the Roman and the deposit of The deputy of a ministerial officer may do whatever
the English law. his principal could do under the curcumstances of eact
case.' See Delegatus.
May mean a place where military stores or DERAIGN.' Originally, to confound,
supplies are kept.* disorder ; to turn out of course ; to displace.
> E. S. §§ 863-75. In old common lnw, to prove by disproving.
'Whitford v. Clark County, 13 F. E. 837, 839 (1883),
cases; Stebbins v. Duncan, 108 U. S. 45 (.1883); Whit-
ford •«. Clark County, 119 id. 533 (1886). 1 Fowler v. Farmers' Loan & Trust Co., 6l Wis. 79
s Blease v. Garlington, 92 U. S. 1, 4-^ (1875), Waite. (1866); Pittsburgh, etc. R. Co. v. Rose, 24 Ohio St. 229
Chief Justice. (1873); State v. New Haven, &c. R. Co., 37 Conn. 163
* BischoCEscheim v. Baltzer, 20 Blatch. 331 (1882) ; s. c. (1870); 34 La. An. 624; 110 U. S. 082.
10 F. E. 3. sShai-pless v. Philadelphia, 21 Pa. 167 (1858); Grant
» Randall v. Venable, 17 F. R. 163 (1883). V. Courter, 34 Barb. 23S (1857).
«Rucker v. Reid, 36 Kan. 410 (1887). As to rules of » Munn V. Illinois, 94 U. S. 123 (1876), Waite, C. J.
practice, see 22 Cent. Law J. 581 (1886), cases. Taking <F. depuU, one deputed: L. deputare, to esteem,
before U. S. commissioner, 1 Kan. Law J. 345-49 allot, destine.
(1885) — Wash. Law Rep. « Allen V. Smith, 12 N. J. L. 162 (1831), Ewing, C. J.
' Foster v. Essex Bank. 17 Mass. 498 (1821), Parker, 'The Confiscation Cases, 20 Wall. Ill (1873); Be
C. J.; 33 Ala. 55; 2 Bl. Com. 453. Executive Communication, 12 Fla. 652 (1868).
8 Story, Bailm. § 43. ' O. F. derainer, to maintain in a legal action: L. L.
'Caldwell's Case, 19 Wall. 264 (1873). de rationare, to contend in law.
 DERELICT 348 DESCEND

or simply to prove; as, to deraign a right, DEROGATION. Partial repeal or abro-

' deraign the warranty, i gation; impairment of utility and force;
Also spelled darraign, darrain. restriction.
DERELICT.2 Relinquished, deserted, Statutes in derogation of the common law or of
.abandoned. common right are to be strictly construed.^ In this
Dereliction. The state of being aban- category are: attachment laws;= affidavit-of -defense
laws; 8 changes in commercial paper sought to be
doned or oast away ; also, the thing itself of
made by local statutes; * contracts in resti'aint of the
which this is predicated. taxing power; ** summary convictions."
1. Land left uncovered by the receding of DESOEin3.7 Sometimes, to "pass by
water from its former bed.^ Sometimes descent or inheritance " or " be inherited
called "reliction." See Alluvion. by," — thereby expressing in a single term
3. Anything thrown away or abandoned what otherwise might require a circumlocu-
with intention to relinquish claim of ownei-- tion. When so used, in statutes, it is usU'^
ship thei'eto. ally accompanied by other words which pre-
In the civil law the voluntary abandonment of
goods by the owner, without the hope or purpose of vent ambiguity : as, " descend to his father,"
returning to the possession.* " to his mother,'' " to his next of kin; " but
Dereliction or renunciation of goods requires both in these cases these terms so qualify the word
the intention to abandon and external action.^ " descend " as to give it the effect of " pass
The right of appropriating a derelict is one of uni-
versal law. It existed in a state of nature, and is only by inheritance " to the person named or de-
scribed. In a will the word cannot be con-
modified by society, according to the discretion of
each community." See Abandon, 1. strued to include any but lineal heirs, with-
out clear indication that it was otherwise
3. Specifically, maritime property entirely
deserted. intended by the testator.*
It is sufficient that the thing is found de- Ordinarily, for an estate to vest by oper-
serted or abandoned upon the seas, whether ation of law in the heirs, immediately upon
the death of the ancestor.^
it arose from accident or necessity, or volun-
In a will, does not work a descent in the strict legal
tary dereliction. . . A thing was not
sense, as inheritance is through operation of law. It
dSrelict in the civil law unless the owner
indicates, presumably, a desire that property shall
voluntarily abandoned it without any further follow the channel into which the law would direct it.^°
claim of property in it.^ May import devolution by force of the devise made,
The abandonment must be iinal, without hope of rather than descent in the legal sense ; that is, "to go
recovery or intention to return. It is not sufificieut
that the crew have left temporarily, as, to procure as- Descendant. One who has issued from
' down." 11
sistance.^ au individual, including a child, a grand-
A case of " guasi-derelict " occurs when the vessel child, and their children to the remotest de-
is not abandoned, but those on board are physically
and mentally incapable of doing anything for their gree.i2 Correlative, ancestor, q. v.
safety.^ See Salvage. Often synonymous with "heir." i^
DERIVATIVE. See Acquisition ; Con- "Descendants" includes every person descended
from the stock referred to. — is co-extensive with
veyance, 2.
DEBTVED. See Devolution. "issue," but not as comprehensive as "relatives;"'*
1 1 Shars. BLJCom. 87.
^ [Jacob's Law Diet.] " A titlederaignedbyasale," 2 Mitchell V. St. Maxent's Lessee, 4 Wall. 843 (1866);
Freeman, Executions, § 282. 101 U. S. 665.
a 66 Pa. 21.
^ L. derelictio^ complete, neglect: derelinquere^ to
forsake. * Boss V. Jones, 22 Wall. 691 (1874).
= 2 Bl. Com. 262. » Tucker v. Ferguson, 28 Wall, 576 (1874).
< Jones V. Nunn, 13 Ga. 473 (185.3); 2 Bl. Com. 9; 10 « 1 Burr. 613; 4 Bl. Com. 280; 2 Kent, 73.
Johns. 356. ' L. de-scendere^ to pass down.
' Livermore v. White, 74 Me. 455 (1883). "Baker v. Baker, 8 Gray, 119, 180 (1857), Shaw, C. J.;
» Hawkins v. Barney, 5 Pet. »467 (1831). McDowell V. Addams, 45 Pa. 434 (1863).
'Epwe V. Brig and Cargo, 1 Mas. 373, 874 (1818), » [Dove V. Torr, 128 Mass. 40 (1879). Gray, C. J.
Story, J. ; Montgomery v. The Leathers, 1 Newb. 425 »» Halstead v. Hall, 60 Md. 213 (1888); Dennett v. Den-
(1862); Evans v. The Charles, ib. ,330 (1842); 2 Kent, 367. nett, 40 N. H. 498 (1860).
8 The Mand City, 1 Black, 128 (1801), Grier, J. ; The " Ballentine v. Wood, 42 N. J. E, 558 (1886).
Laura, 14 Wall. 336, 342 (1871); The Hyderabad, 11 F. R. ■2 Jewell V. Jewell, 28 Cal. 236 (1865): Bouvier.
754-55(1882), cases. " Huston V. Bead, 32 N. J. E. 699 (1880).
» Sturtevant v. The Nicholaus, 1 Newb. 452 (1858). »< Barstow v. Goodwin, 2 Bradf. 416 (1863).
 DESCEND 349 DESCRIPTIO

nor does it embrace " brothers and sisters; " ^ has not | descent, up to whose time they had continued the
the same signification that " heii's of the body " has, ; same some four hundred years, to this series of
and may be used by a testator as synonymous with "canons." Material alteration was not again made
"children."' in them till 1833,— by stat. 3 and 4 Will. IV, c. 106
Descent. Passing downward ; hereditary (amended in 1859 by 23 and 23 Vict., c. 35, ss. 19, 20).
succession. By that act, which went into effect January 1, 1834,
among other important alterations, the father is made
Hereditary succession to an estate in realty. heir to his son. the latter having no issue; all lineal
The title whereby a man on the death of his ancestors are rendered capable of being heirs; and
ancestor acquires his estate by right of rep- relatives of the half-blood are admitted to succeed
resentation ashis heir at law. 3 See Heir. on failure of relatives in the same degree of the whole
Lineal descent. Descent from father or
blood. 1
In England title by " descent " was favored by the
grandfather to son or grandson; or from courts, because land in the hands of the heirs at law
mother to daughter, etc. Collateral descent. by descent was chargeable with payment of the an-
From brother to brother, cousin to cousin, etc. cestor's debts, and because such title favored the right
Mediate, immediate descent. A descent of escheat upon failm-c of heirs. On the other hand,
land acquired by " purchase " was not liable for debts,
may be mediate or immediate in regard to and, upon the death of the owner, descended to the
the mediate or immediate descent of the heirs on the paternal side, and upon failure of such
heirs to the heirs on the side of the mother. Title by
estate of right, or the mediateness or imme- descent was considered the worthier, and where a will
diateness of the pedigrees or degrees of con-
gave the devisee the same estate he would have taken
sanguinity.* as heir-at-law he was adjudged to take not under the
A descent from a parent to a child cannot be con-
will, but by descent or operation of law.'
strued to mean a descent through and not from a par-
Snt. When an estate is said to have descended from The, common-law canons of descent tended to pre-
vent the diffusion of landed property, and to promote
A to B, the obvious meaning is that it is an immediate its accumulation in the oands of a few. The princi-
descent from A to B. " Come by descent " means by
immediate descent.^ ples sprang from the martial genius of the feudal sys-
tem. In the United States the English common law
Canons of descent. The rules which regu- of descents, in its essential features, has been rejected;
late the descent of real estates of inheritance ; each State has established a law for itself." So far as
the rules according to which estates are the British law was taken as the basis of this legisla-
transmitted from ancestor to heir. tion, it was the statutes of Charles II (1671, 1678), and
At common law these canons are: of James n (1686), respecting the distribution of per-
I. An inheritance lineally descends to the issue of sonalty. The two systems are radically different.*
See Blood, 1; Caput, Per capita; Distkibution, 2;
the pei-son who last died actually seised, in infinitum, Pdr-
and never lineally ascends. Feud; Inhekit; Pedigree; Pkimogenitube;
OHASE, 3.
n. The male issue are admitted before the female.
III. ^Vhere there are two or more males in equal DESCRIPTIO. L. Delineation: des-
degree the eldest only inherits; but females alto- ignation, description. Compare Demon-
gether. STRATIO.
IV. Lineal descendants, in infinitum, represent
their ancestor. Descriptio personae. Description of
V. On failure of the lineal descendants of the per- the person ; an addition to a name or signa-
son last seised the inheritance descends to his coUa^ ture: as, " chairman," " president," "agent,"
eral relations, being of the whole blood of the first "assignee," "executor."
purchaser: subject to the last three preceding rules. An appellation thus used may not so much serve to
VI. The collateral heir of the peraon last seised show the capacity in which a person acts as to inden-
must be his next collateral kinsman of the whole tify him as an individual; but circumstances may
blood.
iudicate an intention to qualify or limit liabiUty."
vn. In collateral inheritances male stocks (however The rule is that if a person merely adds to the sig-
un-
remote) are preferred to female (however near); nature of his name the word "agent," "trustee,"
female."
less the lands have, in fact, descended from asubject "treasurer," etc., without disclosing his principal, he
Lord Hale reduced the rules upon the of

1 Hamlin v. Osgood, 1 Eedf. 411 (1803); SON. Y. 393; 1 Williams, B. P. 93, 95, 96-106.
25 Ga. 420. 2 Donnelly v. Turner, 60 Md. 83 (1882), Eobinson, J.
' Schmaunz v. GBss, 182 Mass. 144 (1888). sSee4Kent, 412, 406, n.
l
3 3 Bl. Com. 301; 46 Miss. 395; 25 Tex. 241. • Bates V. Brown, ante; 3 Bl. Com. 515; McDowel
J.
4 [Levy V. M'Cartee, 6 Pet. •112 (1832), Story, J. V. Addams, 45 Pa. 431 (1863). Virginia law, 9 Va. Law
" Gardner v. Collins, 2 Pet.'OO, 91, 94 (1829), Story, J.; 199-203 (1885).
3 Ohio St. 396; 35 Ind. 451. » See Eeznor v. Webb, 36 How. Pr. 364 (1866) ; DeWitt
15
«2 Bl. Com. 208-35; Bates v. Brown, 5 Wall. 715-17 V. Walton, 9 N. Y. 572 (1854); Eathbon v. Budlong,
(1866). Johns. »3 (1818).
 DESCRIPTION 850 DESERTION

is personally bound. The appendix is regarded as » one day to become obligatory on another, either in-
mere deacriptio personal. It does not of itself make strument may be counted on as bearing the first datel'
third persona chargeable with notice of any repre- An allegation of a matter of substance may be sub-
sentative relation of the signer. But if he is in tact a stantially proved; an allegation of a matter of ertsen-
mere agent, trustee, or officer of some principal, and tial description must be proved, in cases, with literal
is in the habit of expressing in that way his repre- precision. . . Allegations of time, place, quantity,
sentative character in his dealings with a particular quality, and allegations in aggravation of damages, are
party who recognizes him in that character, it would not to be strictly proved, unless descriptive. In local
be contrary to justice and truth to construe docu- actions place Is material, and so of the kind and
ments thus made and used as his personal obligations, boundaries of land.''
contrary to the intent of the parties.' The strict rule of pleading which formerly required
exact accuracy in the description of premises sought
DESCRIPTION". See Desceiptio.
Enumeration of characteristic qualities; to be recovered, has. in modei'n practice, been re-
lated, and a general description held to be good. The
designation; recital. Whence descripti-ve. provisions of statutes as tO/descriptions by metes and
Opposed, misdescription: an erroneous bounds have been held to be directory only; a descrip-
description. tion by name, where the property is well known, is
1. A description of land is good if it identifies the often sufficient, as, to enable a sheriff to execute a
land." writ of possession, or a surveyor to ascertain the pre-
Where the description in a deed is true in part, that cise limits of the location of a mining claim. » See
which is false may be rejected. The instrument will Allegation; Indictment.
take effect if a sufficient description remains to ascer- DESERTION.^ A willful abandonment
tain its application.^ i of an employment or duty, in violation of a
Words clearly inconsistent with the rest of a descrip-
tion may be ignored.* ^ legal or moral obligation.^
Specification of quantity, after a particular descrip- A soldier deserts his post, a sailor his ship, an ap-
tion by courses, distances, boundaries, etc., will be prentice his master, when they depart from the seiT*-
ice to which they are bound .without permission or
held subject to the controlling part of the description.
If the purchaser gets the distinct thing contracted contrary to orders. The word implies a separation
which is not with the assent of the person deserted.*
for, he cannot complain' on account of a deficiency in See Abandon, 2.
quantity, unless deception has been practiced.*
A misdescription in a deed will not affect the con- 1. By a husband or wife — an intentional
veyance, ifthe property is otherwise so described and wrongful cessation of matrimonial co-
that it can be identified ; especially, where the mistake
habitation."
is in a statement regarding the title.'' See At, 3; Dem- An actual abandonment of matrimonial
ONSTRATio, Falsa, etc.; More or Less; On; Thence.
2. As to description of a patent, see Invention; cohabitation, with an intent to desert, w;ill-
Process, %. • fully and maliciously persisted in, without
3. Where there is a misdescription in a will, either cause. Mere separation is, then, not deser-
of a person or of the subject-matter, extraneous evi-
dence is always admissible to show who, or what
A breach of matrimonial duty, composed
tion.'
property, was meant. ^ See Ambiguity.
4. Where words in a declaration are descriptive of of the actual breaking off of matrimonial
the instrument sued on, the instrument, when offered cohabitation and of an intent to desert.^
in evidence, must conform strictly to that description. Not merely a refusal of matrimonial inter-
One bearing a different date will not be admitted. course, which would be a breach or Tiolation
But as the same contract may be made on one day
and take effect another, and as a bond may be dated
' United States v. Le Baron, 4 Wall. 642, 6
' 1 Greenl. Ev. §§ 56-66, cases; Whart. Ev. §§ 942, 945,
' Metoalf V. Williams, 104 U. S. 98 (1881), Bradley, J, ; 1004, 1040, cases.
Taylor u Davis, 110 id. 336 (1884); Wall v. Bissell, 135 ' Glacier Mountain Silver Mining Co. v. Willis, 127
id. 393(1888); 24LawEeg. 781-88 (1885), cases ; 103 Ind. U. S. 480 (1888), Lamar, J.
445. * L. de, apart; sefere, to join: to part from.
= Litchfield v. County of Webster, 101 U. S. 776 (1879). * Lea V. Lea, 8 Allen, 419 (1864), Bigelow, C. J.; Ford
3 White V. Luning, 93 V. S. 624 (1876); Coleman v. V. Ford, 143 Mass. 580 (1887).
Manhattan Beach Improv. Co., 94 N. Y. 239 (1883); « Benkert v. Benkert, 32 Cal. 470 (1867); Bennett v.
Brookman uKurzman, ib. 376 (1883); 10 Oreg. 88-89; 1 Bennett, 43 Conn. 318 (1876).
Greenl. Ev. § 301. ' IngersoU i;. IngersoU, 49 Pa. 251 (1865); Bishop v.
* Sampson v. Security Ins. Co., 133 Mass. 54-55 (1882). Bishop, 30 id. 412 (1868); Grove's Appeal, 37 id. 447
"See 4 Kent, 466; 1 Story, Eq. § 141; 3 Washb. E. P. (1860); McClurg's Appeal, 66 id. 356 (1870); Sower's Ap-
630; 102 U. S. 312. Compensation for misdescription, peal, 89 id. 173 (1879).
3 Law Quar. Rev. 54-63 (1887), Eng. cases. s Bailey n. Bailey, 21 Gratt. 47 (1871); Latham v.
" Sherwood v. Whiting, 54 Conn. 333-3T (1886), cases. Latham, 30 id. 333 (1878); Burk v. Burk, 21 W. Va. 450
' Hawkins v. Garland, 76 Va. 153 (1883).
 DEISERVING 351 DESIGN

of a single duty only, but a cessation of co- a patent is given, is that which gives a peculiar or dis-
tinctive appearance to the manufacture, or article to
habitation, arefusal to live together, which which it may be applied, or to which it gives form.
involves an abrogation of all the duties re- The law contemplates that giving new and original
sulting from the marriage contract. • See appearances to a manufactured article may enhance
Abandon, 3 (1) ; Necessaries. 1. its salable value, enlarge the demand for it, and be a
2. By a sailor or seaman — an unauthorized meritorious service to the public. It is the appear
ance itself, no matter by what agency caused, that
leaving or absence from the sliip with an in- constitutes mainly, it not entirely, the contribution
tention not to return to her service. 2 to the public which the law deems worthy of recom-
A quitting of the ship and her service, not
only without leave and against the duty of The test of identity of design plainly must be same-
nesspense,ofi appearance; and mere difference of lines in
the party, but with an intent not again to the drawing or sketch, a greater or smaller number of
return to the ship's duty.'' lines, or slight variances in configuration, if sutBcient
3. By a soldier — absence and an intention to change the effect upon the eye, will not destroy the
not to return to the service.* substantial identity It is not essential that
A minor, over eighteen and under twenty-one, who the appearance should be the same to the eye of an
enUsts in the army without the consent of his parent expert. If, in the eye of an ordinary observer, giving
or fioiardian can commit the offense, and the military such attention as a purchaser usually gives, two de-
tribimals may try him therefor."^ signs are substantially the same, it the resemblance is
4. Of property, see Abandon, 1 ; Derelic- such as to deceive such an observer, inducing him to
tion, 3. purchase one supposing it to be the other, the first
DESERVrNG. Denotes worth or merit, one patented is infringed by the other.*
The differences in designs necessary to take away
without regard to condition or circum- their identity are such appearances as would attract
stances.6 the attention of an ordinary observer, giving such at-
DESIGrN. 1. Aim, intent, purpose; ob- tention as a purchaser of the articles, for the pur-
poses for which they were intended and purchased,
ject, end in view. would usually give. There may be an infringement of
In an indictment for having in one^s possession ma- a patented design without taking the whole of it, but
terials for counterfeiting, may refer to the purpose
in such cases the part taken must be a part covered by
for which the materials were originally designed, and
not to criminal intent in the defendant to use them.'
See Intent; Malice; Will, 1. the Design
patent. patents2 stand on as high a plane as utility
patents, and require as high a degree of the inventive
2. Giving a visible form to a conception of or originative faculty. In patentable designs a person
the mind, — to an invention.' cannot be permitted to select an existing form, and
The acts of Congress which authorize patents for simply put it to a new use, any more than he can be
designs were intended to give encouragement to the permitted to take a patent tor a mere double use of a
decorative arts. They contemplate not so much util- machine; but the selection and adaptation of an ex-
ity as appearance. It is a new and original design for isting form may amount to a patentable design, as the
a manufacture, whether of metal or other material; a adaptation of an existing mechanical device may
new and original design tor a bust, statue, baa relief, amount to a patentable invention. ^ See Painting;
or composition in alto or basso relievo; a new or orig- Patent, 2.
inal impression or ornament to be placed on any arti- An act of Congress approved February 4, 1887 (24 St.
cle of manufacture; a new and original design for the L. 337), provides — That hereafter, during the term of
printing of woolen, silk, cotton, or other fabric ; a new letters patent for a design, it shall be unlawful for
and useful pattern, print, or picture, to be either any person other than the owner of said letters pat-
worked into, or on, any article of manufacture; or a ent, without the license of such owner, to apply the
new and original shai>e or conflgiu-ation of any article design secured by such letters patent, or any colorable
of manufacture,— one or all of these the law has in imitation thereof, to any article of manufacture for
view. And the thing invented or produced, for which the purpose of sale, or to sell or expose for sale any
article of manufacture to which such design or color-
' Southvrick V. Southwick, 97 Mass. 338 (1867), Bige- able imitation shall, without the license of the owner,
low, C. J. ; Magrath v. Magrath, 103 id. 679 (1870).
have been applied, knowing that the same has been so
"Coffin V. Jenkins, 3 Story, 113 (1841), Story, J.
>Cloutman v. Tunison, 1 Sumn. 375 (1883), Story, J.; 1 Gorham Company v. White, 14 Wall. 624-28 (1871),
The Mary Conery, 9 F. R. 223 (1881); 3 Kent, 155. cases, Strong J.: Act 29 Aug. 1842; 5 St. L. 643. See
« Hanson v. South Scituate, 118 Mass. 343 (1874).
Acts 8 July, 1870, and 18 June, 1874: K. S. §§ 4929-33.
» JJe Zimmerman, 30 F. E. 176 (1887). ! Dryfoosu Friedman, 18 F. R. 825 (I8S1), Wheeler, J.
« Nichols V. Allen, 130 Mass. 218 (1881), cases, Gray, » Western Electric Manut . Co. u. Odell, 18 F. E. 321
Chief Justice. in-
(1883), Elodgett, J. For the rule as to damages for 114
' Commonwealth v. Morse, 2 Mass. *131 (1806). fringement, see Dobson v. Hartford Carpet Co.,
« [Binns v. Woodruff, 4 Wash. 52 (1821), Washing- U. S. 439, 445 (1885), cases, Blatchford, J.; Dobson v.
ton, J. Dornan, 118 id. 10, 17 (1886).
 DESIGNATIO DETINUE
353

applied. Any person violating the proviajons, or The original entry may have been peaceable.'
either of them, of this section, shall be liable in the Where one, who has entered peaceably upon land,
amount of two hundred and fifty dollars; and in case afterward retains possession by force.''
the total profit made by him from the manufacture or
Forcible entry and detainer. See En-
sale, as aforesaid, of the article or articles to which
try, 1.
the design, or colorable imitation thereor, has been
DETECTIVE. See Decoy; Reward, 1.
applied, exceeds the sum of two hundred and fifty dol-
lars, he shall be further liable for the excess of such DETENTION. See Detainer; Impris-
profit over and above the sum of twohimdred and onment; Replevin.
fifty dollars; and the full amount of such liability DETERIORATION. See Perishable;
may be recovered by the owner of the letters patent, Sound, 3 (1).
to his own use, in any circuit court of the United
States having jurisdiction oi the parties, either by DETERMINE.^ To end, terminate; to
action at law or upon a bill in equity for an injunction close; to ascertain, settle.
to restrain such infringement. 1. To come to an end : as, for an estate for
Sec. 2. , Remedies by existing law shall not be im- life to detei-mine at death.*
paired; but the owner shall not twice recover the
profit made from the infringement. 2. To decide : as, to determine a question,
DESIGWATIO. L. Pointing out : des- a controversy. Compare Define.
Determinable. Liable to come to an
ignation.
Designatio personse. Designation of end : as, a determinable fee, q. v.
the person — to a contract. Compare De- Determination. The ending of a thing—
SCKIPTIO. an action or proceeding, some right or privi-
Designatio uniixs. See Bzpkbssio, lege ;also, the act of ascertaining a matter
Unius, etc. of fact or of law ; and, again, the act of de-
ciding, and the decision itself. Compare
DESIGNATION". The use of an expres- Premeditate.
sion, instead of the name, to indicate a per-
son or thing. Compare Demonstration, 3. "Determined " and " has become void " both imply
that the thing has in effect been brought to an end.
DESIRE. In a will, where the object is But while the former comprehends every mode of
specified, may raise a trust, i See Preca- terminating or of bringing to an end, the latter applies
tory; Want. to termination in one specific mode.^
DESPATCH. See Dispatch. To "finally determine " refers to a final determina-
tion in the absolute sense. When a special tribunal
DESPOIL. Imports the use of violence
has power to hear and determine a matter, its decision,
or of clandestine means to deprive a person within the scope of its authority, binds all parties. In
of something he possesses. ^ this category, for example, are the decisions of land
DESTINATION. See Arrival; Port, officers." Compare Sewbb; Tbibunai,.
Of destination. DETINERE. L. To hold, keep back,
detain.
DESTROY. To " destroy a vessel " is to
unfit her for service beyond the hope of re- Detinet. He withholds. Detinuit. He
. CO very by ordinary means. 3 withheld (has withheld). Non detinet. He
does not withhold.
Destroyed Instrument. See Evidence,
Secondary; Lost, 3. Technical words formerly used in actions of re-
plevin todescribe the claim, and the denial, that the
Destroyed property. See Mischief, property was illegally detained. See Detinue; Re-
Malicious; Perishable; Res, Perit, etc. plevin. Compare Debet, Et detinet; Capere, Cepit.
DETAINER. A withholding; deten- DETINUE. An action for depriving one
tion. See Detinere, of the possession of personalty acquired
1. Restraint of the person, unasseuted to. originally by lawful means.
See Imprisonment. Thus, if A lends B a horse, and B refuses to restore
3. Withholding possession of property it, the injury consists in the detaining, not in the orig-
from the rightful owner. See Conversion, 3. 1 See 3 Bl. Com. 179.
Forcible detainer. Keeping possession = Ladd V. Dubroca, 45 Ala. 427 (1871); 71 id. 571; 1
Euss. Cr. 310; 41 111. 285; 4 Bl. Com. 148.
of another's realty by force and without au- ' L. detemiinare, to end, bound: terminus, limit,
thority of law. boundary.

* See 2 Bl. Com. 121, 146; 1 Washb. E. P. 380. '

' Vandyck v. Van Beuren, 1 Caines, *84 (1803). ' [Sharp V. Curds, 4 Bibb, 548 (1817).
s [SuBol V. Hepburn, 1 Cal. 268 (1860). 'Eector v. Gibbon, 2 McCrary, 286 (1881), cases;
= United States v. Johns, 1 Wash. 372 (1806). Johnson v. Towsley, 13 Wall. 83 (1871).
DETINUIT 353 DEVISE

d taking: and possession may be recovered by an parture from or change in the risk insured
tion .of detinue. To successfully maintain the ac-
>u it is essential: that the defendant came lawfully against, without just cause.i
Unnecessary delay may be tantamount to a devia-
to possession of the goods; that the plaintiff has a tion. Itis understood as part of the contract that the
operty in them; that they be of some value; and voyage is to be prosecuted in the usual, ordinary route,
at they be identified. If the jury find for the plaint- and the business attended to with at least ordinary
they must assess the value of the several articles, diligence. The shortness of the time, when delay is
id damages for the detention. The judgment is
at the plaintiff recover the goods, or, if they cannot really intended, is immaterial.^
Turning aside to save the lives of persons upon a
) had, then their respective values, and the damages
distressed vessel is not a deviation."
carded for the detention.' Nor is it to touch and stay at a port out of the course
The plea of non detinet raises the general issue. of the voyage, it such departure is within the usage of
L some States this action has yielded to the less tech- the trade. When a bill of lading provides that the
cal actions of trover and replevin, gg. v,
goods are to be carried from one port to another,
DETENUIT. See Detineke. prima facie a direct voyage is intended; butthis may
DETBIMEIfT. See Consideration, 2; be controlled by usage. Established usages relating
>AMAaE; Damages. to a voyage are impliedly made part of the contract,
DETTS. See Actus; Denabius; Ex Visi- if nothing is expressed to the contrary.* See Touch.
atione. DEVICE. See Equivalent, 3 ; Patent, 3.
DEVAST ATIOIf. Wasteful use of trust DE VIS ABE. L. To separate, divide,
distribute: to dispose of property by will; to
roperty ; particularly, the property of a de- devise.
eased person. See Devastavit.
DEVASTAVIT.^ L. He has wasted. Devisavit vel non. Did he make a de-
vise or not ; did he make a will. An issue,
;he technical name for waste by an execu-
directed by a court of probate or other court
or or an administrator; occasionally, ex-
ravagance or misapplication of assets by of equity, to be tried by a jury in a court of
law, to test the validity of a writing pur-
ay trustee.' porting to be a will, when it is alleged, and
A wasting of assets ; any act or omission,
iuy mismanagement, by which the estate by prima facie proof established, that there
was fraud, undue influence, or incapacity
uflei-s loss.*
A waste of the estate; as, payment by an executor in the deceased, at the time of the making
if his private debt with assets, the payment not being of the instrument. See Influence; Insan-
Qtended to replace money advanced on account of ity, 3(5).
lebts of the testator.' The right of an executor to costs in an issue de-
One who has reasonable ground to believe that a pends upon the question whether the litigation is for
rustee is going to misapply assets can take no advan- the benefit of those entitled to the estate.'
age of his own act of connivance.' DEVISE. 1, V. Originally, to divide or
The assets or their proceeds, as far as they may be
raced into the hands of persons affected with notice distribute property; now, to give realty by
pf the misapplication, may be followed and recov- will. See Devisare.
ired.' See Bona, De bonis propriis. 3, n. A disposition of real property, con-
DEVELOP. See Mineral; Mine; Op- tained in a man's last will and testament. ^
5EATE.
A testamentary disposition of land.'
DEVEST. See Vest. In England, an appointment of particular lands to
a particular devisee,— in the nature of a conveyance
DEVIATIOM". In marine insurance, a
voluntary departure, without necessity or by way of appointment.'
reasonable cause, from the usual course of ' Wilkins v. Tobacco Ins. Co., 30 Ohio St. 341 (1876):
;he voyage.'
2 Pars. Mar. Ins. 1.
Originally, only a departure from the 2 Cofftn V. Ins. Co., ante; 7 Craneh, 26; 8 Wheat.
;ourse of the voyage ; now, a material de- 159; 8 id. 291; Pet.2 Wash. C. C. 98; 3 Kent, 31»-14.
8 1 Sumn. 400; 80; 1 Newb. 449; Sprague, 141.
■ 3 Bl. Com. 151-52; Story, Eq. 5 69^-711, 906. Am. Law Eev. 108-20 (1831), cases.
See generally 15
» DSv-as-ta'-vit. * Hostetter v. Gray, 11 F. E. 181 (1882), cases.
> See 2 Bl. Com. 508; 3 id. 292; 71 Ala. 240. 'Sheetz's Appeal, 100 Pa. 197 (1882). See generally
« [Ayers v. Lawrence, 69 N. Y. 197 (1874); Clift V. 18 Cent. Law J. 83.
Vbite, iJ id. 531 (1855): 2 Williams, Exec. 1629. » [2 Bl. Com. 372.
s smith V. Ayer, 101 U. S. 327-28 (18T9), cases. ' Fetrow's Estate, 58 Pa. 427 (1868).
' 1 Story, Eq. §§ 580-81. 8 Harwood v. Goodright, 1 Cowp. 90 (1774), Mans-
' [Coffin V. Newburyport Ins. Co., 9 Mass. *447 (1812). field, J.; 17E. L. & Eq. 198.
(38)
 DEVISE 354 DICTUM

Devisor.i He who gives realty by will. " If there be an absolute power of disposition given
Devisee. He to whom it is given. by the will to the first taker, as if an estate be devised
to A in fee and if he dies possessed of the property
But "devise "is often used in the sense of "be-
without lawful issue, the remainder over, or the re-
queath" and " bequest," 'as referring to a legacy of mainder over the property which he, dying without
personalty. In doubtful cases it is safest to adhere to
the technical meaning, on the presumption that the heirs, should leave, or without selling or devising the
testator used the word in that sense; but this rule will same, — in all such cases the remainder over is void as
give way when it clearly appears that he understood a remainder because of the preceding fee, and it is
void as an executory devise because the limitation is
and used the word in the popular sense.^
inconsistent with the absolute estate or power of dis-
Contingent devise. When the vesting position expressly given or necessarily implied by the
of the interest is made to depend upon the
happening of some future event; in which See Accumulation; Bequest; Die, Without chil-
dren; Lapse; Legacy; Eemaindeb; Eesiduaby^
case, if the event never occurs, or until it oc- Wiu.,
curs, no estate vests. Vested devise. A will." 2.'
DEVOLUTION. 1. Transfer to a suc-
devise which is not subject to a condition,
cessor in office,
precedent or unperformed. See Vest, 2,
Vested. S. A passing from a person dying to a per-
Executory devise. Such a disposition son living: as, the devolution of a title.2
"Devolution by law " occurs when the title is such
of lands by will that no estate vests at the
that an heir takes under it by descent from an " an-
death of the devisor, but on some future con- cestor "according to the rules of law applicable to the
descent of heritable estates; and in all cases of de-
tingency.' scent, the estate of the successor is imme4iately
A limitation by will of a future estate or
" derived " from the " ancestor " from whom the es-
interest in lands or chattels.*
tate descends.'
Such a limitation of a future estate or in- DI. See Dis.
terest in lands as the law admits in the case DIAGRAM. See Book, 1.
of ' a will, though contrary to the rules of DICE. See Game, 2.
limitation, in conveyances at common law.^ DICTA. See Dictum.
Not, a mere possibility, but a substantial interest, DICTATE. To pronounce orally what
and in respect to transmissibility stands on the same
is to be written down by another at the same
footing with a contingent remainder. «
By it a remainder may be created contrary to the time; as, to dictate a will.* See Holo-
general rule, on the supposition that the testator acted graph.
without advice. . . An executory de,yise differs from DICTION AET. See Definition ; Word.
A " remainder " in that it needs no particular estatp No meaning of a word, which has received a con-
to support it; by it a fee-simple or other less estate struction bylaw or uniform custom, can be adopted
may be limited after a fee-simple; and by means of it from the dictionaries in conflict with that construction.
a remainder may be limited of a chattel-interest, after And where a word, as used, is reconcilable with law
a particular estate for life.' or established custom, a different meaning cannot be
:A devise in future to an artificial being to be
given to it upon the authority of a lexicpgrapher.*
created is good as an executory devise.^ The dictionary clause of a statute is the section
Although an estate may be devised to one in fee- which defines what persons, places, things, etc., shall
simple or fee-tail, with a limitation over by way of an be included within the terms of the statute.^
executory devise, yet, when the will shows a clear
DICTUM. L. A saying, observation,,
purpose to give an absolute power of disposition to
remark. Plural, dicta.
the first taker, the limitation over is void.'
1. A voluntary statement ; a comment.
Gratis dictum. A gratuitous remark. A
1 DS-viz'-or; d5v-I-zee'.
"Ladd V. Harvey, 31 N. H. 528 (1850); Fetrow's Es- statement one is not required to make, and
tate, 58 Pa. 487 (1868); 21 Barb. 561; 13 id. 109. 1 4 Kent, 271.
» [2 Bl. Com. 173.
* Brown's Estate, 38 Pa. 294 (1861). = Parr v. Parr, 7 Eng. Ch. *64S (1833).
'Feame, Cont. Rem. 386; Jarman, Wills, 864. s Earl of Zetland v. Lord-Advocate, 3 Ap. Cas. 520
» Medley v. Medley, 81 Va. 268-78 (1886), cases. (1878). "Devolution of liability," 61 Wis. 380. In
' 2 Bl. Com. 173-75; Doe u Considine, 6 Wall. 474-75 Louisiana an appeal may be " devolutive " or suspen-
(1867); 60 Conn. 407; 2 Mich. 296; 52 N. H. 278; 11 Wend. sive, 21 La. An. 295; 30 F. E. 538.
878; 31 Barb. 568; 2 Washb. E. P, 679. ' [Prendergast v. Prendergast, 16 La. An. 220 (1861);
sQuld V. Washington Hospital, 93 V. S. 313 (1877), Hamilton v. Hamilton, 6 Mart. 143 (1827).
cases; 2 Story, Eq. §§ 1146, 1160. » State ex rel. Belf ord v. Hueston, 44 Ohio St. 6 (;
■Howard v. Carusi, 109 V. S. 730 (1883); Hoxsey u
Spear,
» See J.R. S. SS 1-5, 5013; 1 Shars. Bl. Com. 87.
Hoxsey, 37 N. J. E. 22 (1883); 16 S. 0. 385.
 DIE
DICTUS 355

for which he is not liable in damages for in- (2) that if the death is caused by the voluntary act of
the assured , he knowing and intending that death shall
jury traceable thereto.i
be the result of his act, but when his reasoning facul-
As, an assertion by a vendor that his land is fit for
ties are so far impaired that he is not able to under-
a, certain purpose, or is worth so much, cost so much,
stand the moral character, the general nature, oonse-
or that he has refused so much for it.' See Cavbat,
Emptor; Commehdatio. sequences, and effects of the act; or when he is
impelled thereto by an insane impulse, which he has
2. An opinion expressed by a judge on a no power to resist,— such death is not within the con-
point not necessarily arising in a case.2 templation ofthe parties, and the insurer is liable.'
Dicta are opinions of a judge which do not embody The proviso refers to an act of crtmma! self-de-
She resolution or determination of the court, and, struction; idoes
t not apply to an insane person who
being made without argument or full consideration, takes his own lite intending to take it, and knowing
Eire not the professed deliberate determinations of the that death would be the result.'
judge himself.' "Die by his own hand," "die by suicide," and
Obiter dicta. Such opinions, uttered " commit suicide," are synonymous with volimtary
suicide. 2 But the addition of the condition " sane or
" by the way," not upon the point or question insane " will relieve the insurer, whatever be the con-
pending, but as if turning aside for the time
dition of mind of the insured. 'i '
from the main topic to a collateral subject.3 In 1872, when Terry's Case was decided, there was a
Often, simply, obiter or an obiter. conflict of opinion as to the interpretation to be placed
An expression of opinion upon a point in a case, upon the words "die by his own hand" or "die by
argued by counsel and deliberately passed upon by the suicide." All authorities agreed that the phrases did
court, though not essential to the disposition of the not cover every possible case of self-destniction in a
case, if a dictum at all, is a " judicial " dictum as dis- blind frenzy or under an overwhelming insane im-
tinguished from a mere obiter dictum^ i. e., an expres- pulse. Some courts held that they included every
sion originating alone with the judge who writes the case in which a man, sane or insane, voluntarily took
Dpinion, as an argument or illustration.* his own life; others, that insane self-destruction was
To make an opinion a decision there must have not within the condition. . If a man's reason is so
been an application of the judicial mind to the precise clouded or disturbed by insanity as to prevent his un-
c[uestion necessary to be determined in order to fix the derstanding the real nature of his act, as regards
rights of the parties. Therefore the Supreme Court either its physical consequence or its moral aspect,
has never held itself bound by any part of an opinion the case appears to come within the forcible words
which was not needful to the ascertainment of the uttered by the late Mr. Justice Nelson, when Chief
question between the parties.' Justice of New York, in the earliest American case
"The case called for nothing more; if more was in- upon the subject: " Self-destructionby a fellow-being,
tended by the judge who delivered the opinion, it was bereft of reason, can with no more propriety be as-
cribed to his own hand than to the deadly instrument
purely otttcr."'
Dicta are not binding as precedents; at most they that he may have used for the purpose; "and, whether
receive the respect due to the private opinions of the it was by drowning, poisoning, hanging or other man-
judges by whom uttered.' See Dbcision; Opinion, 3. ner, "was no more his act, in the sense of the law,
DICTUS. See Alias. than if he had been impelled by irresistible physical
DIE; DYING; DEATH. In several
Die in consequence of a violation of
phrases, have a technicaJ meaning :
Die by his own hand or by suicide,
law.
power. "Expresses
* another condition under
[n policies of life insurance, used in a proviso which a policy of life insurance will be ren-
exempting the company from liability. dered void.
In a recent case It was held that so long as there
In such case the words mean: (1) That if the as- was a violation of law on the part of the assured, and
sured, being in the possession of his ordinary reason- death as its result, it was immaterial in what manner
ingfaculties, from any cause and by any means, inten- the death was produced, excepting that there must
tionally takes his own life, there can be no recovery;

'Medbury ti. Watson, 6 Mete. 259 (1843); Gordon v. 1 Mutual Life Ins. Co. v. Teny, 15 Wall. 583 (1872),
Parmelee, 2 Allen, 214 (1881). Hunt, J. ; 1 DUl. 403.
."State V. Clarke, 3 Nev. 572 (1867), Beatty, C. J. ' Bigelow 0. Berkshire Life Ins. Co., 93 U. S. 286
"Eohrback v. Germania Fire Ins. Co., 62 N. T. 68 (1876), cases; Connecticut Mut. Life Ins. Co. v. Groom,
,1875), rolger, J. 86 Pa. 96-98 (1878), cases; Cooper v. Massachusetts Life
»Buchner v. Chicago, &o. E. Co., 60 Wis. 267-69 Ins. Co., 102 Mass. 228 (1869), cases; Knights of the
1884), Cassoday, J.
Golden Rule v. Ainsworth, 71 Ala. 444-49 (1882), cases.
'Carroll v. Lessee of Carroll, 16 How. 287 (1853),
Jurtis, J.; 6 Wheat. 399. ' Charter Oak Life Ins. Co. v. Eodel, 96 U. S. aS'i
(1877), cases.
'United States v. County of Clark, 96 U. S. 218 ' Manhattan Life Ins. Co. v. Broughton, 109 U. S. 127,
1877), Strong, J. ; 107 id. 179. 131 (Nov. 6, 1883), cases, Gray, J., quoting Breasted v.
'SeelTF.K. 48.3, 425. Farmers' Loan & Trust Co., 4 Hill, 75 (1843).
 DIGEST
DIES
356

have been a direct connection between the criminal Solvit ad diem. He paid on the day. Sol-
act and tlie death, i vit post diem,. He paid after the day. Pleas
In such case " violation of law " means crime; and to actions on bonds for the payment of
" known violation of law " indicates a voluntary crim- money.
inal act. The burden of proof is upon the insurer.*
Death from suicide is not a death "In violation of Dies a quo. The day from which. Dies
the criminal laws " of New York.^ ad quern. The day to which. The day
Bie without children, heirs, or issue. from which, and the day to which, to com-
In a will, as applied to realty, prima facie
import an indeflnite failure of issue, — total pute time.
day.
Dies domlnieus. The Lord's day — Sun-
extinction of the testator's family, or the day. Dies juridieus. A judicial or court
death of all his descendants to the remotest
generation. Dies dominicus nan est Juridieus. Sunday
- This has uniformily been the construction, when
there were no expressions in the will controlling the is a non-judicial day — is not a day for court
legal meaning of the words, or pointing to a definite business, except as to the issue and return of
failure of issue.* criminal process. Whence dies nan. (jurid-
As applied to personalty, construed to ieus): a non-judicial day.
mean dying without heirs living at the death Dies non juridieus means only that process ordi-
of the devisee.5 narily cannot issue, be executed, or returned, and that
courts do not sit, on that day. It does not mean that
When^there is anything in a gift or limitation to no judicial action can then be had.' See Sunday.
show th^t the testator meant a failm-e of Issue in the
life-time of the first taker, instead of an indefmits A civil process awarded or a judgment entered on a
failure, a limitation over is construed as an executory holiday is not void.^* See Holiday.
devise in defeasance of a fee-simple, and not as a re- Quarto die post. On the fom-th day
mainer sustained by an estate-tail.' thereafter.
Whether a presumption that a person died without On every return-day in the term the person sum-
issue will be indulged depends upon the circumstances moned has three days of grace, beyond the day named
shown in each case. If, for instance, circumstances in the writ, in which to make his appearance, and if
are proven indicating non-marriage or childlessness, he appears on the fourth day inclusive, quarto die
then death without issue may be presumed.' See fur- post, it is sufBcient. . . The feudal law allowed
ther Definite; Issue, 5. three distinct days of citation, before the defendant
DIES. L. A day; the day. was adjudged contumacious for not appearing. . .
Ad diem. At the day ; on the very day : At the beginning of each term, the court does not usu-
as, the ad diem demand of a bill. 8 ally sit for the dispatch of business tUl the fourth or
Comperuit ad diem. He appeared at the appearance day."
DIITEBElSrCES. See Option, Contract.
day. A plea that the defendant in an action
DIFFICULTY. 1. As applicable to
upon a bail bond appeared on the day desig- what takes place between parties, when it
nated in the bond.
results in a breach of the peace or a flagrant
violation of law, is in general use, and well
'Murray u N. T. Life Ins. Co., 30 Hun, 439 (1883);
Bradley v. Mut. Benefit Co., 45 N. T. 422 (1871); ClufE understood.*
V. Mut. Benefit Life Ins. Co., 95 Mass. 316 (1866). It is of constant application in legal proceedings,
» Cluff V. Mut. Benefit Life Ins. Co., 99 Mass. 336 (1868). and in the reports of adjudicated cases. It is express-
» Darrow v. Family Fund Society, 43 Hun, 245 (1886). ive of a group or collection of ideas that cannot, per-
* See Williams v. Turner, 10 Yerg. 389 (1837); War- haps, be imparted so well by any other term.<
dell V. Allaire, 30 N. J. L. 9-16 (1843), cases; Davies 2. In the performance of a covenant, see
V. Steele, 38 N. J. E. 170-73 (1884); 37 id. 81; Grayw. Possible.
Bridgeforth, 33 Miss. 344 (1857); WUson v. Wilson, 32 DIGEST. A compilation presenting the
Barb. 333 (1860); Be Meroeron's Trusts, 4 Ch. Div, 182 substance of many books in one, under an
(1876): 20 Moak, 759; Snyder's Appeal, 95 Pa. 177-81
(1880), cases; Magrum v. Piester, 16 S. C. 333-24 (1881); arrangement (usually alphabetical) intended
Quigley v. Gridley, 132 Mass. 3" (1882), cases ; Schmavmz to facilitate reference.
V. G6ss, ib. 145 (1883). It reproduces the rules of the decisions by mere
» Wallis V. Woodland, 33 Md. 104 (1869); Moffat v. quotation and extract.*
Strong, 10 Johns. *I5 (1813).
"Williams, E. P., 4 Eawle's ed., 207, cases; 36 Am. ' State V. Eicketts, 74 N. C. 193 (1876).
Law Eev. 107-15 (1888), cases. '= Paine v. Fresco,
' Bank of Lomsville v. Trustees of Public Schools, 3 Bl. Com. 378. 1 Co. Ct. E. 563 (Pa., 1886), cases.
83 Ky. 231-33 (1885), cases. * Gainey v. People, 97 111. 279 (1881).
8 101 U. S. 565. ' [Abbott's Law Diet.
 357
DIGGING DIRECT

Simply a manual of reference to the original cases, the exercise of " diligence," " due diligence,"
vhioli are tlie authority.'
See Abridgment; Compilation, or " reasonable diligence " toward notifying
the indorser of the fact of non-payment, is
DIGGING. May mean excavating, and
required by the law-merchant.
lot be confined to removing earth as dis-
linguished from rock. 2 Due diligence. Some effort or attempt
to find the party, which the court or judge
DIGNITY. In old English law, a species
shall be satisfied is reasonable under the cir-
)f incorporeal hereditament.
cumstances.i See Pbotest, 3.
Dignities bear a near relation to oflSoes. They were
>riginally annexed to the possession of certam estates Diligently inquire. Said of a grand
n land, and created by a grant of those estates. Al- jury, see Inquiry, 3.
hough now little more than personal distinctions, they DIMINUTION. Omission; defect; in-
ire still classed under the head of realty.' completeness.
DILAPIDATION". See Perishable, Where the whole of a record is not properly or not
DILATORY. Said of a defense or a plea ti-uly certified by an interior court to the court of re-
;hat resists the plaintiff's present right of re- view the party injured thereby may allege or " sug-
;overy by interposing some temporary objec- gest" diminution of the record, and cause it to be
rectified " — by means of a writ of certiorari, q. v.
;ion, as that the court has no jurisdiction, DIPLOMATIC OFPICERS. Ambas-
;hat the plaintiff lacks capacity to sue.'' See sadors, envoys extraordinary, ministers
?LEA.
DILIGENCE. 1. In the law of bailment plenipotentiary, ministers resident, commis-
md of common cairiers of persons is opposed sioners, charges d'affaires, agents and secre-
taries oflegation. 3 See Consul ; Minister, 3.
0 " negligence," and synonymous with DIPSOMANIA. See Intemperate.
' care " in its three degrees of slight, ordi- DIRECT. 1, adj. Straight; not circuit-
lary, and extraordinary or great. *
ous ;immediate ; the first or original.
Due diligence. What constitutes " due
Opposed (1) to indirect: as, a direct or
liligence," in an action to recover damages indirect — confession, contempt, damage,
a,used by negligence, is for the jury; and
docket or index, examination, interest, in-
he burden of proof is with the plaintiff to
ter ogatory or question, tax, qq. v.
how the negligence. 6
Ordinary diligence. That degree of care, Opposed (2) to redirect, the direct over
again : as, an examination (g. v.) following a
ittention, or exertion which, under the cir- cross-examination.
iumstances, a man of ordinary prudence and
Opposed (3) to cross; as in direct examinar
liscretion would use in reference to the par-
tion ; to collateral : as, the direct line of de-
icular thing were it his own property, or in
scent; to circumstantial : as, direct evidence ;
bing the particular thing were it bis own
to contingent or remote: as, a direct interest ;
oncern.'
to consequential: as, direct damages. See
" Common " or " ordinary " diligence is that degree those substantives.
f diligence which men in general exert in respect to
leir own concerns, and not any one man in partio- The " most direct route of travel " between two
places, within the meaning of a statute giving a shei>
lar.9 iff mileage for carrying prisoners to a penitentiary, is
See further Bailment; Cake; Gabbier; Negli-
ENCE. the railroad, although it is sixty-four miles long while
2. To charge the indorser of a bill or note, the highway is but thirty-five.' See Distance.
To " proceed ■ direct " to a port is to take a direct
pon non-payment by the maker or acceptor, course, without deviation or unreasonable delay; not,
1 [Bouvier's Law Diet.; 1 Bl. Com. 81. to leave port immediately."
1 Sherman v. New York City, 1 N. Y. 320 (1848). What cannot be done directly cannot be done indi-
" 2 Bl. Com. 37; 1 Ld. Eaym. 13; 7 Eep. 1S2.
«See3Bl. Com. 301. rectly."
« See Brand v. Troy, &o. E. Co., 8 Barb. 378 (1850); 19 •Bixbyu Smith, 49 How. Pr. 63 (1874); Demond v.
ow. Pr. 219; 39 Ala. 305. Burnham, 132 Mass. 341 (1882); Bank of (Columbia v.
' Haff V. Minneapolis, &c. E. Co., 14 F. E. 558 (1882). Lawrence, 1 Am. L. C. 405; Byles, Bills, 275.
' Swigert v. Graham, 7 B. Mon. 663 (1817), MarshaU, a [4 Bl. Com. 390; Tidd, Pr. 1109.
lief Justice. "E. S. §1674.
" City of Eockford v. Hilderbrand, 61 Dl. 160 (1871), <Maynard v. Cedar County, 51 Iowa, 431 (1879).
leldon, J. ; 71 Ala. 121 ; 5 Kan. 180; 71 Me. 41 ; 6 Mete. "The Onrust, 6 Blatch. 536 (1869;.
; 25 Mich. 297; 3 Erewst. 14; 31 Pa. 572. » New York v. Louisiana, 108 U. S. 91 (1882).
 S58
DIRECTOEIES DIEECTORS

2, V. To guide, instruct, charge. Opposed, The directors of a corporation are its exclusive ex-
ecutive agents, tmA, as it can act only through them,
misdirect, to instruct- wrongly, to mislead: the powers vested in the corporation are deemed con-
as, to direct, and to misdirect, a jury in the ferred upon its representatives; but they are, neverthe-
law which is to regulate its deliberations and less, trustees for the stociiholders. The law recognizes
verdict. See further CHAnaB, 2 (3, c). the stockholders as the ultimately controlling power
Directory. 1, adj. Containing instruc- in the corporation, because they may at each author-
ized election entirely change the organization, and
tions as to what may be done : as, a direct- may at any time keep the trustees within the line of
ory — statute, Clause, trust. Opposed, man- faithful administration by an appeal to a court of
datory, q.V. equity. . . General power in a board of directors
" Directory," referring to a charter, means that it is "to perform all corporate acts"refers to the ordi-
to be considered as giving directions which ought to nary business transactions of the corporation. The
be followed, not as so limiting the power that it can- stockholders alone can make or authorize funda-
not be effectually exercised without observing them.' mental or organic changes.*
See Legai., Illegal; Prohibition, 1. As a rule, the directors of a corporation are only
3, n. A board of directors, q. v. required, in the management of its affairs, to keep
DIRECTORIES. See Copyright. within the limits of its powers and to exercise good
faith and honesty. They undertake, by virtue of the
Where the commercial value of two society direct '-
cries depends upon the judgment of the compilers in assumption of the duties incumbent on them, to per-
selecting names, each is original as far as the selection form those duties according to the best of their judg-
is original. One compiler may not merely copy names ment and with reasonable diligence, and a mere error
of judgment will not subject them to personal liability
from the other's book; but he may use it to verify the for its consequences. And unless there has been some
orthography of names or the correctness of addresses.
The existence of the same errors in the two books violation of the charter or the constating instruments,
raises a presumption of piracy that can be overcome or unless there is shown to be a want of good faith, or
a willful abuse of discretion, or negligence, there will
only by clear evidence to the contraiTr.'
be no personal liability. They are personally only
DIRECTORS. Persons legally chosen to
bound, in the management of the affairs of the corpo-
manage the afifairs of a corporation or com- ration, to use diligence and prudence, such as men
pany. usually exercise in the management of then* own af-
Directors, board of, or directory. The fairs of a similar nature.. But they are personally
liable if they suffer the corporate funds or property to
whole body of such managers, jointly con- be wasted by gross negligence and inattention to the
sidered.
duties of their trust.^
The directors of a corporation are subject to the That which directors, by proper diligence, ought to
obligations imposed upon trustees and agents.^ have known as to the general course of business in
They are officers and agents, and represent the in- their bank, they may be presumed to have laiown, in
terests of the abstract legal entity, and of those who
own the shares of its stock.* any contest between the corporation and' those who
are justified by the circumstances in dealing with its
To the stociiholders they are not as technical trust-
officers upon the. basis of that course of business.^
ees, but as mandataries, bound to exercise ordinary See Corporation; Dividend, 3; Meeting; MiKirrEB,
skill and diligence. They are not liable for a mistake
2; Trust, 1.
of judgment, within the scope of their powers; but
they are responsible for losses occasioned by embez-
zlement, willful misconduct, breach of trust, or gross Drury v. Cross, 7 Wall. 302 (1868); Jackson v. Ludeling,
inattention by which fraud has been perpetrated by 21 id. 616 (1874); Eichards v. New Hampshire Ins. Co.,
an agent, officer, or co-director.^ 43 N. H. 263 (1861).
They are at least quasi trustees for the creditors of 1 Cass V. Manchester Iron, &o. Co., 9 F. E. 640 (1881);
the corporation. When that is insolvent good faith s. 0. 13 Eep. 167.
forbids that they use their position to save themselves 2 Ackerman v. Halsey, 37 N. J. E. 363 (1883), cases,
or one of 'their number at the expense of other cred- Eimyon, Ch. See also Williams v. Hilliand, 38 id. 374
itors.* (18S4), cases; Chicago City E. Co. v. Allerton, 13 Wall.
233 (1873); Bradley v. FarweU, 1 Holmes, 440 (1874),
» Town of Panville v. Shelton, 76 Va. 311
= List Publishing Co. v. Keller, 30 F. E. 772 (1887), Directors as
cases. * fiduciaries, Bent v. Priest, 86 Mo. 476
Wallace, J. (1885), cases: 35 Am. Law Eeg. 125-33 (1886), cases.
3 Warden v. Union Pacific E. Co., 103 U. S. 658 (1880), Liability of, of national banks, and generally, Movius
cases. V. Lee, 30 F. E. -306-7(1887), eases; Witters v. Sowles, 81
■" Twin-Lick Oil Co. v. Marbury , 91 tJ. S. 589, 6S7 (1876). id. 1 (1887), cases; 23 Cent. Law J. 172 (1886), cases.
s Spering's Appeal, 71 Pa. 20 (1872), cases, Shars- Powers of, of banks, 22 Cent. Law J. 318 (1886), cases;
wood, J. ; United Society of Shakers v. Underwood, 9 of corporations generally, 19 id. 305-10, 327-30 (1884),
Bush, 609 (1873), cases; First Nat. Bank of Ft. Scott v. cases; 6 South. Law Eev. 366-413 (1880), cases. Dealing
Drake, 29 Kan. 326-37 (1883); Morse, Banks, 70. with the corporation, 1 Col. Law T. 1C3-95 (1888).
» Coons V. Toine, 9 F. E. 532 (1881); s. c. 13 Rep. 136; 3 Martm v. Webb, 110 U. S. 15 (1884), Hai-lan, J.
 DIS 359 DISCHARGE

DIS. A prefix or inseparable preposition, Also, an expenditure of money necessarily incurred

used in compounds. In the Latin, corre- in the regular course of proceedings in an action, and
sponds to asunder, apart, in two ; and denotes allowable
INSS. as costs.' Compare Reimbcrse. SeeEARN-
separation, parting from, and hence has the
DISCHABGrE. As a verb and noun, con-
force of a privative or negative.
veys the idea of relieving of a charge, bur-
Ina few words, becomes di- ; but di- may be a form
of de, as in divest. sibility.
den, weight, or of a duty, service, or respon-
DISABILITY. Incapacity for action
1, V. (1) To empty of cargo or freight: as,
under the law; incapacity to do a legal act.i
A personal incapacity ; and may relate to power to to discharge a vessel; also, to remove that
contract or to sue, and arise from want of sufficient with which a thing is laden : as, to discharge
understanding, as in cases of lunacy and infancy; or a cargo. See Dispatch ; Poet, Of discharge.
from want of freedom of will, as in cases of coverture
and duress; or from the policy of the law, as in cases (3) To extinguish, satisfy : as, to discharge
of alienage, outlawry, and the like.' a demand, debt, legacy, lien, judgment, in-
Any incapacity of acquiring or transmitting a right, cumbrance, obligation, qq. v.
or of resisting a wrong; and arises from the act of the (3) To free from the payment of indebted-
party, of his ancestor, of the law, <fr of God.^ ness already incurred: as, to discharge a
CJivil disability. Disqualification cre- bankrupt, an insolvent, qq. v.
ated by the law. Physical disability.
(4) To absolve' from contingent pecuniary
An infirmity inherent in the constitution of hability: as, to discharge an indorser, a
the body or mind. surety, a guarantor, qq. v.
In a statute providing what shall he done in the
event of the death or disability of a public officer, (5) To relieve from the performance of
the duties of a trust: as, to discharge an
" disability " will cover any cause which prevents the
officer from acting, as, his resignation.* assignee, administrator, executor, guardian,
Where there are two or more co-existing disabilities receiver, qq. v.
in the same person he is not obliged to act until the (6) To relieve from further service in the
last disability is removed.' Thus, coverture enables a consideration of a cause ; to dismiss : as, to
wife to postpone avoidance of a deed made in infancy discharge a jury.
to a reasonable time after the coverture is ended,
without regard to the statute of limitations. One (7) To set at liberty; to free from imprison-
under a disability to make a contract cannot confirm ment :as, to discharge a prisoner, a convict.
or disaffirm a voidable contract.'
Compare Capacity; Qdalift. See Abate, B; Ab^ (8) To decline further to entertain a pro-
FraH, 2; Ratification. ; vacate : as, to discharge a rule.
ce ding to
3, n. (1) Relief from some burden or duty :
Disabling. Disqualifying ; incapacitat-
ing ;restricting ; restrain ing : as, a disablin g extinguishment or satisfaction of an obUga-
statute, q. v. tion; exoneration from responsibility, ac-
DISAFFIKM. See Affirm, 2. countability, liability ; exemption from serv-
DISAGREE. See JURY; Verdict. ice or action; liberation; annulment. See
See Allow. Charge, 3.
DISALLOW.
DISAPPROVE. See Estoppel; Pro- (2) Any such action in itself considered.
test, 1. (3) The certificate or document in evidence
DISBAR. See Bar, 1. thereof.
DISBURSEMENT.' Paying out money ; The discharge of a guardian is any mode by which
the relation of guardianship is effectually determmed
also, the money itself.
and brought to a close: as, by his removal, resignar
By an administrator— money or currency paid in tion, or death, by the marriage of a female ward, by
extinguishment of the liabilities of the decedent or of
the arrival of a minor ward at the age of twenty-one,
the expenses of administration.' or otherwise.'
To be construed a discharge for money, » paper
1 [Wiesner v. Zaun, 39 Wis. 206 (1875): BurrUl. every re-
» Meeks V. Vassault, S Saw. 213 (1874), Sawyer, Cii-. J. need not contain the word "discharge;"le receipt,
ceipt for money, which is not an accountab
a See 33 Barb. 480; IDS Ind. 195; 16 Alb. L. J. 292; 3 Bl.
Com. 301; Coke, Inst. 1. 5, p. 21; 1. 8, p. 69. is a discharge for money.'
4 State V. City of Newark, 27 N. J. L. 197 (1858).
' Mercer's Lessee v. Selden, 1 How. 37 (1843). 1 Case V Price, 9 Abb. Pr. 114 (1859). And see Han-
• Sims V. Everhardt, 102 U. S. 310 (1880),cases ; 77 Va.72. over V. Reynolds, 4 Dem. 885 (1886): N. Y. Code, § 3256.
I F. desbouraer, to take out of a purse. ' Loring V. Alline, 9 Cush. 70 (1851), Shaw, 0. J.
« Wright V. Wilkerson, 41 Ala. 272 (1867). 3 [Commonwealth v. Talbot, 2 AUen, 162 (1861), oases.
 DISCLAIMER 360 DISCONTINUANCE

DISCLAIMER. The act, declaration, or Drawings cannot be used, even on an application

for a reissue; * much less, on a disclaimer, to change
document by which a person denies, dis- the patent, and make it embrace a different invention
avows, or renounces some interest or right
from that described in the specification." See Issue, 1.
which he formerly claimed, or which has 4. When a defendant denies that he has or
been imputed or offered to him.i claims any right to the thing in demand by
1. In feudal law, when a tenant neglected
the plaintiflE's bill, and disclaims, that is, re-
to render services, and, upon an action
nounces, all claim tliereto.'
brought to recover them, disclaimed to hold Where the defendant renounces all claim
of the lord.
to the subject of the demand, made by the
In a court of record, a forfeiture of the lands to the
lord.2 plaintiff's
Distinct inbill.*
substance from an answer, although
When the tenant, upon a writ of assize of rent, or
sometimes confounded with it; and it can seldom be
on a replevin, disavowed his tenure, whereby the lord
lost the verdict, the lord could thereupon have a writ put in without an answer.*
of right, sur discUwner; and, upon proof of the tenure, DISCLOSE. 1. "Disclosing a defense
recover the land as a punishment to the tenant for his upon the merits" means opening out and
false disclaimer. = letting the judge see whether there really is
A disclaimer must be a renunciation by the party
of his character of tenant, by setting up a title in an- a defense. 5
other or by claiming title in himself.* 3. An agent is said to " disclose his princi-
3. A formal mode of expressing a grantee's pal " when he makes known who his prin-
dissent to a conveyance before the title has cipal is ; and principals are said to be " dis-
become vested in him. 5 closed" or "undisclosed." See Agent;
Prevents the estate from passing from the grantor.^ Auctioneer.
It is essential that the estate disclaimed would vest DISCONTINUANCE. The cessation
but for the disclaimer, unless there be an express of an action or an estate.
condition that the grantee shall elect."
Filed in an action to try title to land, admits thg 1. (1) A chasm or gap left by neglecting to
plaintiff's title; and entitles the defendant to his costs, enter a continuance in an action.^
unless he was in pdssessipn when the suit was brought. ^ When a plaintiff fails to follow up his case
3. Renunciation of what is or seems to be and leaves a chasm in the proceedings by his
part of a patentee's claim for invention, and laches.'
as to which he has no valid claim. When the plaintiff leaves a chasm in the proceed-
Wherever, through inadvertence, accident, or mis- ings, as by not continuing the process, regularly from
take, and without any willful default or intent to de- time to time, the suit is discontinued, and the defend-
fraud or mislead the public, a patentee in his specifi- ant need not attend. ^ See Continuance: Dismiss.
cation has claimed more than that of which he was
(2) At common law, the act of the plaint-
the original and first inventor or discoverer, his patent iff in demurring or replying to a plea which
is valid for all that part which is truly and justly his
answered a part of his declaration.
own, provided the same is a material and substantial
By not taking judgment for the part unanswered,
part of the thing patented, and definitely distinguish-
able from the parts claimed without right; and the he was held not to have followed up his whole de-
patentee, upon seasonably recording in the patent
ofdce a disclaimer iu writing of the parts which he mand.*
2. When, at common law, a tenant in tail
did not invent, or to which he has no valid claim, may granted a larger estate than he could right-
maintain a suit upon that part which he is entitled to fully transfer.
hold, although in a suit brought before the disclaimer Abolished in England in 1834; but prior thereto had
he cannot recover costs. A reissued patent is within ■ already become obsolete.!"
the letter and spirit of these provisions.^
' Parker & Whipple Co. v. Tale Lock Co., 123 U. S. 87
' [Abbott, Law Diet.] (1887), cases.
! [2 Bl. Com. 275. ^ Hailes v. Albany Stove Co., 133 U. S. 682 (1887).
a 3 Bl. Com. 233. » 1 Daniel, Ch. Pr. 706.
< Williams v. Cooper, 39 E. C. L. 384 (1840), Tindal, < Story, Eq. PI. § 383.
Chief Justice. « Whiley v. Whiley, 93 E. C. L. •663 (1858).
5 n^atson V. Watson, 13 Conn. 85 (1839). »Taft V. Northern Transportation Co., 56 N. H. 418
« Jackson v. Richards, 6 Cow. 630 (1827). (1876), Gushing, C. J.
' Wootters v. Hall, 67 Tex. 513 (1887); Presoott v.
ib.' 307.
Roundtree v. Key, 71 Ala.' 215 (1883), Jackson, C. J.;
Hutchinson, 13 Mass. *442 (1816).
8 Gage V. Herring, 107 U. S. 646 (1883), cases. Gray, J. ; « [3 Bl. Com. 296.
United States Cartridge Qo. v. Union Cartridge Co., » See Steph. Plead. 241; Gould, PI. 336.
113 id. 642 (1884); R. S. §§ 4917, 4983; 17 Blafch. 67-^9. " See 3 Bl. Com. 172; 1 Steph. Com. 510, n.
 DISCOUNT 361 DISCOVERY

DISCOUNT. 1. A counting ofE; an al- bills of exchange, and other evidences of debt." So
lowance ordeduction from a gross sum on that the discount of negotiable paper is the form ac-
cording to which they are authorized to make their
any account.^ loans, and the terms loans and discounts are syn-
A right -which a debtor has to an abate- onymous. Itwas so held in Talmage v. Pell, 3 Sold.
ment of the demand against him in conse- 328, 339 (1852); and in Niagara County Banlc v. Baker,
quence of a partial failure of the considera- 15 Ohio St. 68, 87 (1864), the point decided was that " to
discount paper, as understood in the business of bank-
tion, or on account of some equity arising ing, is only a mode of lending money with the right to
out of the transaction on which the demand
take the interest allowed by law in advance." . . A
is founded. 2 national bank is restricted to taking no more than
3. The difference between what is paid for seven per centum for the discount of negotiable paper
a claim evidenced by negotiable paper and when the person discounting is an indorser thereon, i
See Usury.
the face amount thereof.
DISCOVERT. See Covert.
A bank of discount furnishes loans upon drafts,
promissory notes, bonds, and other securities. . . DISCOVERY .2 A bringing to light;
" Discounting " and " buying " a note are not identi- making known for the first time ; disclosure ;
cal. The latter denotes the transaction "when the also, that which is found out, revealed, dis-
seller does not indorse the note and is not accountable closed.
for it." . , Power to carry on the business of bank-
ing, by discounting evidences of debt, is merely an 1. Finding a previously unknown country
authority to lend money thereon, with the right to or land. Spoken of as the " right of discov-
deduct the legal rate of interest in advance.' ery " or of " original discovery."
In Atlantic State Bank v. Savery, 88 N. T. 291, 302 The English possessions in America were not
(1880), it was decided that the purchase of a promis- claimed by right of conquest, but by right of discov-
sory note for a less sum than its face is a discoimt ery. According to the principles of international law,
thereof within the meaning of the provision of the as then understood, the Indian tribes were regarded as
Banking Act of that State (Laws of 1836, o. 260, § 18), the temporary occupants of the soil, and the absolute
which authorizes associations organized imder it to rights of property and dominion were held to belong
discount bills and notes. And in support of that to the European nations by which any portiqn of the
definition of the terms the court cites the authority
coimtry was first discovered.'
of McLeod on Banking, p. 43, where the author says, The Europeans respected the right of the natives as
" The difference between the price of the debt and the occupants, but asserted the ultimate dominion to be
amount of the debt is called discount," and " to buy in themselves; and exercised, as a consequence, a
or purchase a debt is always in commerce termed to power to grant the soil while it was yet in the posses-
discount it." In Fledkner v, Banlc of United States, 8 sion of the natives.* See Occupancy.
■Wheat. 850 (1823), Mr. Justice Story said, "Nothing 3. In the law of patent rights, refers to
can be clearer than that, by the language of the com- something that had existed unknown, until
mercial world and the settled practice of banks, a dis-
count by a bank means a deduction or drawback brought to light and utilized.
made upon its advances or loans of money, upon The Congress shall have power to secure for lim-
ited times to inventors tne exclusive right to their dis-
negotiable paper or other evidences of debt, payable
at a future day, which are transferred to the bank," coveries.*
and added that if the transaction could properly be This does not apply to the discovery of a funda-
mental truth or abstract principle, in which no one
called a sale " it is a purchase by way of discount."
Discount, then, is the difference between the price and can have an exclusive right; nor to a power of nat-
ure, in which the invention is in the application to
the amount of the debt, the evidence of which is trans- >.. useful object. The discovery must be reduced to
ferred, and that difference represents interest charged,
bemg at some rate, according to which the price paid, practice,— be embodied in some practical method for
if invested untU the maturity of the debt, wUl just rendering it useful."
produceits amount. And the advance, therefore, upon In its naked, ordinary sense, a discovery is not pat-
to its char- entable. A discovery of a new principle, force, or
every note discounted, without reference
acter as busmess or accommodation paper, is properly ' Nat. Bank of Gloversville v. Johnson, 104 U. S. 276-
denominated a " loan," for interest is predicable only 78 (1881). Matthews, J. See also 14 Ala. 667; 13 Conn.
of loans, being the price paid for the use of money. 259; 20 Kan. 450; 42 Md. 592; 48 Mo. 191; 7 N. Y. 343;
St.
The specific power given to national banks (Rev. 18 Barb. 462; 13 Bankr. Reg. 268.
2 F. decouvrir, to uncover.
§ 6136) is " to carry on the business of banking by dis-
counting and negotiating promissory notes, drafts, » Martin v. Waddell, 10 Pet. 409 (1842), Taney, C. J.
« Johnson v. Mcintosh, 8 Wheat. 572 (1823), Marshall,
1 [Dunkle v. Eenick, 6 Ohio St. 53.5 (1856). C. J. ; ButtE V. Northern Pacific R. Co., 119 U. S. 67
= Trabue v. Harris, 1 Mete. 599 (Ky., 1838), Simpson, (1886); 3 Kent, 379.
Chief Justice. 6 [Constitution, Art. I, sec. 8, cl. 8.
' ' Fanners', &c. Bank v. Baldwin, 23 Minn. 205-6 « Burr V. Duryee, 1 Wall. 570 (1663); Le Roy v. Tat-
(1876), cases. ham, 14 How. 174 (1833).
 DISCOVERY 362 BISCRETION

law, operating, or which can be made to operate, on

matter, will not entitle the discoverer to a patent. He simply the discovery of facts resting in the '
knowledge of the defendant, or the discovery
controls his discovery through thp means by which he
of deeds, writings, or other things in his pos-
has brought it into practical action, or their equiva-
Tent. It is then an " invention," although it embraces
session or power, in order to maintain a right
a discovery. JEvery invention may, in a certain sense, or title of the party asking it in some suit or
embrace more or less of discovery, for it must always
include something that is new; but it by no means proceeding in another court. '
Not entertainable: where the subject is not.oogni-
follows that every discovery is an invention.^ zable in any court; where the court cannot, in this
See further Invention; Patent, 2; Principle, 2; manner, aid the other court; where the plaintiff is
Pbooess, 3; Seouke, 1; Telephone. under disability, or has no title to the character in
3. In the law regulating the /granting of which he sues ; where the value in suit is trivial ; where
new trials and rehearings, refers to evidence the plaintiff has no interest in the subject-matter or
brought to light or obtainable after trial or no title to the discovery required, or where an action
will not lie; where some other person than the plaint-
hearing, and which, could it have been pre- iff has a right to call for the discovery; where the
sented upon that occasion, would likely have policy of the law exempts the defendant from discov-
changed the result. Whence "after-discov- ery;where the defendant is not bound to discover his
own title; where the discovery is not material to the
ered "and " newly-discovered " evidence. suit; where the defendant is a mere witness; or where
The unconsidered evidence must be such as rea-
sonable diligence, on the part of the party aslzing for a discovery would criminate him.*
the rehearing, could not have secured at the former At common law, .discovery could not be had before
trial; it must be material to its object,. not merely trial; hence the resort to chancery. At present it ia
eumulative, corroborative, or collateral; and be such had, in effect, by bills of particulars, by attachments
as ought to produce important results on its merits. ^ in execution, by affidavits of defense, by inspection of
■See Audita Querela; Review, 2, Bill of. books and documents, by examination of one's adver-
4. In the law of limitation of actions, refers sary before trial, and by other means specially pro-
vided by statute.
to information had of the fact that a mistake
For want of the power of discovery at law, courts
was made or fraud perpetrated. of equity acquired a concurrent jurisdiction with other
In cases of fraud and mistalie a court of equity does courts in all matters of account.' See Creditor's
not allow the statute of limitations to run until the Bill; Fishing, 2.
discovery thereof. This rule has been incorporated DISCBEDI'T. See Credit.
into the statute law of many of the States.' See fur-
ther Fraud; Limitation, 3; Mistake; Rescission. DISCREPANCY. See Ambiguity; De-
scription.
5. In the law of bankruptcy, refers to the
. DISCRETION.* Discernment of what
•disclosure made, or tO be made, by the debtor
of the nature, kind, amount, situs, etc., of is right or proper; sound sense; deliberate
his assets.* See Bankkdptcy. ' judgment.
6. In equity practice, the disclosure by the 1. Capacity or understanding to discern
defendant of matters important to enable the what is right or lawful, so as to be answer-
plaintiff to maintain his rights. Procured able for one's actions.
Presumed to be enjoyed at fourteen — the " age of
a —
byBill discretion;" but, really, the law has fixed no arbi-
of discovery. Every bill in equity trary period when the immunity of childhood .ceases.^
may be deemed such, since it seeks a disclos- See Age; Cap ax; Negligence.
ure from the defendant, on oath, of the 2. Foresight, wisdom, sagacity ; judgment,
truth of the circumstances constituting the action. Sometimes terraed personal discre-
plaintiff's case as propounded in his bill. But tion: limited to a particular individual.
that which is emphatically called a bill of Where there is a trustee in existence, capable of •
acting in the exercise of a discretion vested in him by
discovery is a bill which asks no relief but
I [2 Story, Eq. § I486; 1 id. § 689; 1 Pomeroy, Bq.
' Morton v New York Eye Infirmary, 5 Bratoh. 121
(1862), Shipman, J. §§ 144, 191.
'2 Story, Eq. § 1489; 1 Pomeroy, Eq. §§ 195-215. As
= Dower v. Church, 21 W. Ta. 57 (1882); Codman v. against a corporation, see Post i. Toledo, &C.E. Co.,
Vermont, &c. R. do., 17 Blatch. 3 (1879); Whalen v. 144 Mass. 347 (1887), cases; McComb v. Chicago, &c. E.
Mayor o£ NewTorlj, 17 F. E. 72 (1882). Co., 19 Blatch. 69 (1881); Colgate v. Compagnie Fran-
3 West Portland Homestead Association v. Lowns- caise, 23 F. R. 82 (1885), cases.
dale, 17 F. E. 207, 205 (1883); Fritschler v. Koehler, 83 3 3 Bl. Com. 437, 382. See 1 Bouv. 636.
Ky. 82 (1885); Parlser v. Kuhn, Neb., March, 1887, cases: ^ L. dis-cernere, to separ£|,te, distinguish, perceive.
33 N. W. Rep. 74; 2 Story, Eq. § 1521 o. I I Bl. Com. 463; Nagle v. AUegheny R. Co., 88 Pa. 39
* See 2 Bl. Com. 483. (1879).
 DISCRETION 363 DISCRETION

tlie instrument under which he is appointed, equity (or according to) the law, what would be
■will not interfere to control that discretion.'
A devisee charged with making such provision for
designated beneficiaries '* as in his judgment will be ■
Arises only in the exercise of judicial au-
best," must exercise a proper and honest judgment in thority, which presupposes the existence of
determining the nature and amount of the provision, some cause
just.i or controversy submitted for de-
having due regard to the amount of the estate, and cision in the customary form of judicial pro-
the condition and circumstances of the beneficiaries.^
See Benevolent; Executor; Power, 2; Trust, 1. ceedings.2
Judicial power, as contradistinguished from the
3. Applied to public fuactionaries — a power of the laws, has no existence. Courts are the
power or right, conferred upon them by law, mere instruments of the law and can will nothing.
of acting officially in certain ch'cumstances, When they are said to exercise a " discretion," it is a
mere legal discretion, a discretion in discerning the
according to their own judgment and con- course prescribed by law ; and when that is discerned
science, uncontrolled by the judgment or it is the duty of the court to follow it. Judicial power
conscience of others. is never exercised for the purpose of giving effect to
This discretion, to some extent, is regulated by the will of the judge; always for giving effect to the
usage, or by fixed principles. Which means merely will of the legislature, iu other words to the will of
that the same court cannot, consistently with its dig-
nity, and with its character and duty of administering the Were
law." the judges to set the law to rights as often as
impartial justice, decide in different ways two like it differs from their ideal of excellence, their correc-
cases. "Whether cases are alike is, of necessity, a tions would not suit those who came after them, and
question for the judgment of some tribunal.^ we should have nothing but corrections; there would
An offlcer in whom public duties are confided by be no guide in the decision of causes but the discretion
law is not subject to control by a court in the exercise of fallible judges in the court of last resort, and no
of a discretion reposed in him as a part of his official rule by which the citizen might beforehand shape his
functions.' See Department; Grant, 3; Sewer. actions. " The [private] discretion of a judge," said
4. In legislation, the deliberate, cautious Lord Camden, " is the law of tyrants: it is always un-
known; it is different in different men; it is casual,
judgment of the law-making body. al exercise and depends upon constitution, temper and passion.
The courts will not presume a detriment
In the best it is oftentimes caprice; in the worst it is
of judgment in the legislature. Security against
abusive exercise resides in the responsibUity of the every vice, folly, and passion to which human nature
law-makers to the public.' See Policy, 1; Public. canThe
be liable." * on or disposition of many matters
determinati
5. Equitable determination by a court as is committed to the sound discretion of the court; as,
to what is just, in a given case. amendments to pleadings, and petitions ; contmuances,
Judicial discretion. A discretion to the order of introducing evidence, the amount of
cumulative testimony admissible, the examination of
be exercised in discerning the course pre-
witnesses, the granting or refusing of new trials and
scribed bythe law; never, the arbitrary will
of the extraordinary writs, sales and resales of prop-
of the judge.6
erty; custody of children; allowances for mainte-
According to Coke, discernere per legem, nance and remuneration.
quid sit justum: perceiving by or through The universal rule of practice is that orders or de-
crees involving an exercise of judicial discretion
■ Nichols V. Eaton, 91 U. S. 784 (1875), cases; Cooper purely are not re-examinable in a coul-t of errors;
V. Cooper, 77 Va. 203 (1883); Lovett v. Thomas,
81 td. only a plain abuse of discretion in such cases will be
255 (1885); 78 id. 114; 79 id. MO. interfered with.'
m
■' Colton V. Colton, 127 U. S. 300 (1888). As to cases Abuse of discretion, especiaUya " gross " and "
pal-
discreti on was conferre d upon exec- pable" abuse (the terms orduiarily employed), to jus-
which personal
utors and held not transmissible to the administ
rator tify an interference with the exercise of discretionary
wills as thmk
de bonis «o«, by such expressions in
"fit," "prudent 1 See Faber v. Bruner, 13 Mo. 543 (1860).
see, or deem "advisable," "best," n v. G.berson, 43 a States v. Judges, 31 La. An. 1116 (1883).
"judicious," "wise," see Giberso
note, cases: 37 Alb. Law J. 7-» ' Osborn u United States Bank, 9 Wheat. 866 (1884),
N. J. E.ca
<1888), 116-21 (1887),
ses. .„ , ... Marshall. C. J.
"Judges of Oneida Commo n Pleas v. People , 18 .Commonwealth v. Lesher. 17 S. & B. *164 (1827),
36 Mo. 278
Gibson C J. See also State v. Cummings,
4
of (1805)- Kooke's Case, 3 Coke, 100 (1698); Rex v. Wilkes,
(1868); Coun^
""fGalnlT^son, 7 Wall.208348(1886); 45 ^d. 639; 52 Burr. '2639 (1770); 1 id. 560, 671; 34 Ala. 235; 46 id. 310;
San Mateo v. Maloney, 71 Oal.
Heisk. 774.
4 Iowa, 283; 25 Miss. 226;o. 1Bank
• Pomeroy's Lessee of Indiana, 1 Wall. 698
'".Mtimore, &c. R. Co. .. Maryland, 21 WaU. 471
(1879); Wills v.
(1868), cases; Exp. Reed, 100 U. S. 23 , 102 id.
Russell, ib. 626 (1879); United States u. Atherton
^^T'topp
34 Barb. 293 (1861). 26 Wend. 152 (1841); Piatt v. Munroe,
u Cook, (1876).
375 (1880); Tilton v. Cofleld, 93 id. 166
 DISCRIMINATION 364 DISORDER

power, implies not merely error of judgment, tat been given is discharged from liability.' See Pro-
perversity of will, passion, prejudice, partiality, or test, 21
moral delinquency.' DISINHERIT. See Inherit.
DISCRIMINATION. See Citizen; DISINTEREST. See Interest, 3 (1).
COMMBRCK. DISJOINDER. See Joinder.
DISCUSSION. 1. By the Roman law, a DISJUNCTIVE. Describes a term or
surety was liable for the debt only after the an allegation which expresses or charges a
creditor had unsuccessfully sought payment thing in the alternative. Opposed, conjunc-
from the principal debtor. This was called tive. See Or, 3.
the "benefit" or "right of discussion." A DISMISS. To send away; to refuse to
like rule obtains in Louisiana. ^ entertain further ; to send out of court : as,
3. In the sense of debate, see Libeett, Of to dismiss a bill in equity for defects in its
press, Of speech ; Pkivilege, 4. structure or for insuf&cienoy in law —
DISEASE. Within the meaning of a Borrowed from proceedings in a court of chancery,
warranty in a policy of life insurance, not a where the term is applied to the removal of a cause
temporary ailment, unless it be such as indi- out of court without further hearing. ^
" Dismissed '' refers to the final hearing of a suit ^—
cates a vise in the constitution, or so serious
the end of the proceeding.^
as to have a bearing upon the general health A bill in equity will be dismissed Where (1) there
and the continuance of life, or such as in is a want of certainty in the allegations to show that
common understanding would be called a the plaintiff is entitled to the relief demanded; (2)
where the right to relief has been barred by the stat-
disease.' ute of limitations ; (3) where there has been negligence
See Accident, Insurance; Disorder, 1; Epidemic; in seeking relief, unexplained by sufficient equitable
Heauth; Insanity; Inspection, 1 ; Nuisance; Police, 2;
Quarantine, 2; Sound, 2(2); Suicide. reasons and circumstances.*
After a decree, whether final or interlocutory, has
DISENFRANCHISE ; DISFRAN- been made, by which the rights of a defendant have
CHISE. See I^ANCHlSE, 2. been adjudicated, or such proceedings have been taken
DISENTAIL. See Tail. as entitle him to a decree, the complainant cannot
DISFIGURE. See Maim, 3. dismiss his bill without the consent of the defendant.*
Whenever it becomes apparent to the court that it
DISGRACE. See Criminate.
has no authority to adjudicate the issue presented, its
DISGUISE. A man hiding behind duty is to dismiss the cause. ^
bushes is not "in disguise," within the A dismissal for want of jurisdiction does not con-
meaning of a statute which makes the county clude the plaintiff's right of action.^ See Discohtinu-
ANCB, 1 ; Prejudice, 2.
liable in damages to the next of kin of one
DISORDER. 1. Disease; physical malady.
murdered by persons in disguise.* See Am-
bush. A person suffering from a " contagious disorder '*
may be indicted for exposing himself in a place en-
DISHERISON. See Inherit. dangering the public health.^ See Disease; Health;
Slander, 1.
DISHONOR. To refuse or neglect to
accept or to pay negotiable paper at its ma- 3. Conduct which disturbs the community.
turity ;also, the failure itself in this respect. See Peace, 1.
Opposed, honor, q. v. Disorderly conduct. Any conduct
The law presumes that if the drawer of a bill of which is contrary to law.s
exchange has not had due notice of dishonor he is in-
• jured, because otherwise he might have immediately
withdrawn effects from the hands of the drawee; and ' Byles, Bills, 297; Eiggs v. Hatch, Ig F. B. 838,842-50
that if the indoraer has not had timely notice the (1883), cases.
remedy against the parties liable to him is rendered
451,= Boscley v. Bruner, 24 Miss. 462 (18B2); 3 Bl. Com.
more j)recarious. The consequence, therefore, of neg-
lect of notice is that the party to whom it should have ' Taft V. North. Transportation Co.,B6 N. H. 417(1876).
* Taylor v. Holmes, 14 F. E. 499 (1882).
' Chicago, &o. E. Co. v. Union Rolling Mill Co., 109
> People V. N. Y. Central R. Co., 29 N. Y. 431 (1864); U. S. 713 (1883); 69 Ga. 100.
White V. Leeds, 51 Pa. 189 (1865); 21 id. 406; 53 id. 158; "Watson V. Baker, 67 Tex. 60 (1886), cases.
67 id. .34; 14 Hun, 3; 78 N. Y. 56; 15 Pla. 317; 53 Ala. 87. ' Smith V. McNeal, 109 U. S. 429 (1883), cases.
' La. Civ. Code, arts. 3014-20. 'King V. Vantandillo, 4 Maule & S. 73 (1815); King v.
' Cushman v. United States Life Ins. Co., 70 N. Y. 77 Burnett, ib. 272 (1815); Boom v. City of Utica, 2 Barb.
104 (1848).
(1877), cases.
* Dale County v. Gunter, 46 Ala. 143 (1871). » State V. Jersey City, 25 N. J. L. 541 (1856).
 DISPARAGEMENT 365 DISPUTE

Disorderly house. A house the inmates charging with speed, haste, expedition, due diligence,
af which behave so badly as to become a according to the lawful, reasonable, well known cus-
toms of the port of discharge; the same as "usual dis-
Quisanceto the neighborliood.i patch," but not the same as " qmok dispatch,"
Includes any gambling house, dance house, which excludes certain usages and customs.'
bawdy house, prohibited liquor saloon, or When there is no undertaking to imload the vessel
within a specified time, but she is to be discharged
other habitation made obnoxious by the ha-
" with all possible dispatch," or " with usual dispatch,"
bitual recurrence of fighting, noise, or vio-
or "with the customary dispatch of the port," or
lence. ^ " within reasonable time," the freighter must use rear
Tke keeping may consist in allowing sucli disorder sonable diligence to do his part toward unloading
as disturbs the neighborliood, or in drawing together according to the terms and meaning o£ the charter-
idle, vicious, dissolute or disorderly persons engaged
in unlawful or immoral practices, thereby endanger- DISPAUPER. See Pauper, 3.
ing the public peace and promoting immorality.'
A complaint will be supported by proof that one DISPLACE.
party.'* In shipping articles, to dis-
person was disturbed, if the acts are such as tend to rate; not, to discharge.'
annoy all good citizens.* DISPOSE. 1. To alienate, direct the
Disorderly person. A person amenable ownership of : as, to dispose of property.
Includes to barter, exchange, or partition; is
to police regulation, for misconduct affecting
the public. 5 See Behavior. broader than sell.*
DISPAKAGEMENT. 1. Inequality in Under the power " to dispose of the property of the
United States," Congress may lease the public lands.
rank.
The nature of the disposal is discretionary.'
In old law, while a female infant was in ward, the "Dispose," said of an insolvent, in an attachment
guardian could tender a match " without disparage- law, Includes any intentional putting of property be-
ment" or inequality: lest she might marry the lord's yond reach of creditors.'
enemy. The Great Charter provided that the next of To convey by advancement is to dispose;' but to
kin should be notified of the proposed contract.' mortgage may not be, within the meaning of a statute.'
3. Derogation, belittlement ; impeachment. Disposing mind. Testamentary capac-
A tenant may not disparage the title in his landlord ;
ity, q. V. Compare Jus, Disponendi.
nor may the former owner of property disparage the
title he has conveyed. 3. To place a dead infant upon a wall in a
Declarations by the vendor of realty in disparage- field is to "secretly dispose" of it.' See
Abandon, 2 (3).
ment of the grant are never admissible, nor, geirerally,
are the assertions of the seller of a chattel.' 3. To decide, determine : as, to dispose of
See AssiGNMEKT, 2; Declaration, 1; Estoppel;
Landlord. a controversy.'"
DISPOSSESS. See Possession, Dispos-
DISPATCH. As used in charter-parties,
session.
relative to the dischar ge of vessels, has fre-
DISPROVE. See Proof; Bebut.
quently been the subject of definition. DISPUTE. A fact alleged by one party
Customary or usual dispatch. In ac-
and denied by the other, with some show of
cordance or consistently with all well-estab-
reason ; not, a naked allegation without or
lished usages of the port of discharge.8
The usual dispatch of persons who are against evidence." "Whence disputable,— see
Presumption.
ready to receive a cargo. '
Excludes a custom by which a charterer may to
de- Matter in dispute. In a statute predi-
cline to receive a cargo, because it is advantageous cating appellate jurisdiction on the value of
postpone."
dis- « Lindsay v. Cusimano, 12 F. R. B07 (1882).
"Customary dispatch in discharging "means
» Nelson v. Dahl, 12 L. E., Ch. D. 668, 582-84 (1879);
> State V. Maxwell, 33 Conn. 259 (1866), Hinman, C.
J. Williams V. Theobald, IB F. E. 468, 473 (1883); Sleeper
790.
' See 1 Bish. Cr. L. § 1106; 4 Bl. Com. 167. V. Puig, 17 Blatch. 88-39 (1879), cases; 22 F. E.
'Thatcher v. State, 48 Ark. 63-64 (1886); 120
Mass. 3 Potter V. Smith, 103 Mass. 69 (1869).
356- 30 N. J. L. 104. * Phelps V. Harris, 101 U. S. 380 (1879).
» United States v. Gratiot, 14 Pet. 538 (1840). ! Tex.
• Commonwealth v. Hopkins, 133 Mass. 381 (1883),
cases. h v. Hitchco ck, 28 Minn. 74 (1881); i
• Auerbac
3 See 4 Bl. Com. 169. 430-57.
'2B1. Com. 70. , ^_„^ ' Elston V. Schilling, 42 N. T. 79 (1870).
cases; 'Bullene v. Smith, 73 Mo. 16 (1880).
' See Roberts v. Medbery, 132 Mass. 101 (1882),
Robertson v. Pickrell, 109 U. S. 616 (1883). » Queen v. Brown, 1 Cr. Cas. Reg. *246 (1870).
Blatch. 13.
8 [Smith V. Yellow Pine Lumber, 2 F. E. 399
(1880). loSee Exp. Eussell, 13 WaU. 669 (1871); 14
C. J.
• Lindsay v. Cusimano, 10 F. R. 303 (1882). " [Knight's Appeal, 19 Pa. 494 (1853), Black,
 366 DISTRESS
DISQUALIFY

the "matter in dispute" — the subject of 3. To discharge or relieve from a pro-

litigation, the matter for which suit is ceeding which involves a lien or seizure; to
brought, on which issue is joined, and in re- open, annul: as, to dissolve an attachment,
lation to which jurors are called and wit- an injunction, qq. v.
nesses examined. ' 8. As to dissolving parliament, see Pro-
Until shown by the record that the sum demanded ROGUE.
is not the matter in dispute, that sum will govern in DISSUADE. See Justice, Offenses
all questions of jurisdiction. . . The amount stated
in the body of the declaration is considered — the act- against.
ual matter in dispute as shown by the record, and not DISTAWCE. Is measured in a straight
the ad danvmim alone. "
line, " as the crow flies," or on the hori-
For the purpose of review the amount is,fixed by
the amount of the judgment below, not by the amount zontal plane.!
May refer to the usually traveled road, = See Aloks ;
of the verdict.' Course, 1; Dibrot, 1; Near.
The act of March 3, 1887, excludes from the compu-
DISTILLER. Any person, firm, or cor-
tation interest accrued up to the date of the suit.'
When the record is silent as to the value, it is good poration who distills or manufactures spirits,
practice for the court below to allow affidavits and or who brews or makes mash, wort, or wash
counter-affidavits of value to be filed under direction for distillation, or the production of spirits.'
from the court.^
One who produces alcoholic spirits by dis-
Where the value of land in controversy was neces-
sarily involved in the determination of a case, and tillation.* Compare Rectifier.
found by the court to be §6,000, to effect an appeal the Distilled spirits. The products of dis-
defendant was not allowed to present affidavits show- tillation, whether rectified or not.5
ing the value to be 87,000." See Conteovbbst; Ee- Unlawful distUling of spirits is sometimes termed
AtANn, 2. "illicit."
DISQUALIFY. See Qualipt. The business of distilling having been made a, quasi
DISRATE. See Displace. public employment, a distiller's books are quoM rec-
ords.' See Cbimujate.
DISSEISIH". See Seisin. Distillery. A place where alcoholic liq-
DISSENT. See Assent ; Consent ; Opin-
uors are distilled or manufactured ; not, then,
ion, 3.
DISSIMILAR. See Similar. every structure where the process of distilla-
tion, as of paraffine, is used.' See Condition,
DISSOLVE. 1. To put an end to, ter-
minate: as, to dissolve a relation; e. g., the Repugnant.
DISTRACTED. In Illinois and New
marriage relation, v- see Divorce.
The dissolution of a partnership (g. v.) does not Hampshire, expresses a degree of insanity.
affect contracts made between the partners and DISTRAIN. See Distress.
DISTRESS.8 Taking a personal chattel
others.''
"Dissolving a corporation" is sometimes synony- out of the possession of the wrong-doer into
mous with annulling its chapter or terminating its ex-
istence, and sometimes refers merely to the judicial the custody of the party injured, to procure
act which alienates the property and suspends the satisf actiop for a wrong committed."
business of the corporation, without terminating its A taking of beeists or other personal prop-
existence. 8 See Stock, 3 (2).
Harr., Del., 12-16; 2 Kent, 307. As to notice, see 24
iLee V. Watson, 1 Wall. 339 (1863), Field, J. See 10 Cent. Law J. 588,(1887), cases.
La. An. 170; 12 id. 87; 3 Cranch, 159; 3 DaU. 405; 13 » Leigh V. Hmd, 17 E, C. L. 774 (1829) ; 78 id. • 688; 85
Cal. 30; 25'Gratt. 177. id. *92; 88 id. *350.
"HQton V. Dickinson, 108 U. S. 174-76 (1883), cases; = Smith V. Ingraham, 7 Cow. 419 (1827).
The Jesse Williamson, ib. 309-10 (1883); Bruce v. Man- sRevenue Act 13 July, 1866. § 9: 14 St. L. 117.
chester, &c. E. Co., 117 id. 515 (1886); Gibson v. Shu-
391«R.(1879).
S. § 3247; United States u House No. 3, 8 Eep.
I feldt, 122 id. 28-40 (1887); 106 id. 578-80; 110 id. 223; 112
id. 227. «E. S. §§ 3248, 3289, 3299; United States v. Anthony,
' N. Y. Elevated E. Co. -a. Fifth Nat. Bank, 118 tr. S. 14 Blatch. 92 (1877); Boyd v. United States, ib. 317
(1877).
* Moore v. Town of Edgefield, 32 F. E. 498 (1887). « United States v. Myers, 1 Hughes, 534 (1876); E. S.
- Wilson V. Blair, 119 U. S. 387 (1886).
« Talkington v. Dumbleton, 123 tJ. S. 745 (1887), Waite, § 3303.
' Atlantic Dock Qo. v. Libby, 45 N. Y. 502 (1871).
Chief Justice^ ^ F. destraindre, to strain, press, vex extremely:
' See 3 Kent. 27. L. distringere, to pull asunder.
« Be Independent Ins, do., 1 Holmes, 109 (1872) ; 2 « a Bl. Com. 6; 44 Barb. 488.
 367
DISTRESS BISTRIBUTION

irty by way of pledge to enforce the per- By 52 Hen, III (1870), c. 4, taking an unreasonable
distress for rent is amercible. The remedy for an ex-
'ormance of something due from the party cessive distress is by a special action under that stat-
iistrained upon.' ute— there being, at common law, no trespass.^
Distrain. To take by distress. The things distrained should be impounded. On the
Distrainor; distrainer. He who levies way they may be rescued, if the taking was unlawful.
a, distress. Once in the pound, they are in the custody of the law,
Distraint. The act or proceeding by and may be replevined.'*
In Pennsylvania, prior to the act of March 21, 1772,
which a distress is made. a distress could be held only for enforcing payment
The more usual injury for which a distress may be of rent. That act provides for a sale of the goods,
taken is non-payment of rent; but it is also a remedy which' makes the distress like an execution. The act
where another's animals are found damage-feasant is similar to that of William and Mary, ante — under
Cg. v.), and for the enforcement of some duties im- which it was decided that a tender after an impoimd-
posed by statute." ing availed nothing; but the later decisions are that a
At common law all personal chattels are distrain- sale, after tender of rent and costs within five days, is
able, unless expressly exempted. Not distrainable
are: (1) Things in which no one can have an absolute In some States a lessor has no power of distress, but,
illegal.'
property; as, a wild animal. (2) Whatever is in per- instead, attachment on mesne process, an action of
sonal use; as, a horse while a man is riding him. covenant or debt, or assumpsit for use and occupation.
(3) Valuable things in the way of trade; as, ahorse In other States the common-law right, greatly modi-
standing in a shop to be shod, or at an inn, cloth left fied, is preserved.
with a tailor, grain sent to a mill or a market. These What the power of distress was in feudal times may
are privileged for the benefit of trade. But all chat- be inferred from the fact that the word came to sig-
tels foimd upon the premises are distrainable for rent: nify extreme " sufl!eriug." * See District, 1.
if not, fraud could be readily practiced. A stranger Distress infinite. A distress unlimited
to the lease may recover from the tenant. (4) The
tools and utensils of one's trade or profession: taking as to quantity, and repeatable till the deUn-
these would prevent the owner from serving society. quent does his duty.
Beasts of the plow and sheep are privileged, dead In cases of distress for fealty or suit of court no
goods and other beasts not. To deprive the debtor of distress could be considered unreasonable. This sort
the means of earning money would defeat the end for of distress was used in summoning jurors. The prop-
which distress is intended. (5) A thing which catanot erty was to be restored after the duty was.perf ormed.'
be returned In its former good plight: a distress being Now resorted to to compel the doing of a thing re-
only a pledge, to be restored after the debt is paid. quired by a court, as, to appear, wnen process cannot
By 2 William and Mary (1691), o. 5, grain and hay may be personally served. See Attachment, Of person;
be taken. (6) A thing fixed to the freehold. By 11 Distringas; Sequestration.
Geo. n (1729), c. 19, the landlord may distrain natural See also Eloion; Landlord; Pound, 2; Eeplevin;
Rescue, 1.
products, and harvest them when matured.' See
Crop.
DISTRIBUTIOIS". 1. Allotment; ap-
All distresses must be by day, except of animals
portionment; division.
doing damage. The distrainor must enter upon the
premises; within six months after the lease ends, Specifi cally, division of an intestate's es-
where the tenant continues in possession. By 8 Anne tate according to law.*
(1710), c. 14, and 11 Geo. H (1729), c. 19, the landlord A decree distributing a fund in court will not pre-
clude an omitted claimant from asserting, by bill or
may distrain goods carried off the premises clandes-
tinely, wherever found within thirty days, unless sold petition, his right to share in the fund.'
to an innocent purchaser. Once inside the house, the Distributee. One who receives a share
distrainor may break open an inner door; by 11 Geo. H,
he may, in the day-time, break open any place to which or portion of the assets of an intestate's
goods have been fraudulently removed, oath being first
Distributive. Due or received upon a
estate.^
made, in the case of a dwelling-house, of a reasonable
ground to suspect that such goods are concealed legal division : as, a distributive share.
therein.* ) How.
A distress should be for the whole duty at once ; but 1 3 Bl. Com. 12. See 100 Pa. 397, 401, infra;
or if
if mistake is made in the value of the articles, Pr. 167; 8 Kern. 299.
dis- = 3 Bl. Com. 12-15.
there is not sufficient upon the premises, a second L.
tress may be taken.' 3 Richards V. MoGrath, 100 Pa. 400 (1882); 105 E. C.
3 Bl. Com. 14. See also Patty v. Bogle, 59 Miss.
> 3 Bl. Com. 231. 262; (1882).
493-94
2 3 Bl. Com. 6-7. Contr. 517; Taylor, Landl. & T. §| 558-59.
=4 31 Pars.
Bl. Com. 281.
s 3 Bl. Com. 7-10. Articles exempt, 26 Am. Law Reg.
153-58 (1887), cases. 412.
6 Rogers V. GUlett, 56 Iowa, 268 (1881); 102 Ind.
*3B1. Com. 11. ■•Be Howard, 9 Wall. 184 (1869), cases.
»3B1. Com. 11-12. B See Henry v. Henry, 9 Ired. L. 279 (1848).
 368
DISTRICT DISTRINGAS

Statutes of distribution. Statutes District clerk, court, judge. See

which regulate the division of an intestate's Courts, United States.
estate among his widow and heirs or next of District of Columbia. Is neither a State
kin, after the debts of the estate are paid. nor a Tei-ritory. Congress is authorized " to
Title to realty vests in the heirs by the death of the exercise exclusive Legislation in all Cases
ancestor; the legal title to personalty is vested in the whatsoever over such District (not exceeding
executor or administrator, and is transferred to the
distributees upon confirmation of the proceedings in ten Miles square) as may, by Cession of par-
distribution.! ticular States, and the Acceptance of Con-
In thirty or more of the States and Territories the gress, become the Seat of the Government of
rules for the distribution of personalty are essentially
the same as the rules for the descent of realty, where the United States." i
Maryland and Virginia ceded territory on the Poto-
no distinction is made between realty ancestral and mac, which Congress, by act of July 16, 1790, accepted.
non-ancestral, and, where such distinction is made, In December, 1800, the seat of government was re-
for the descent of realty non-ancestral.'' moved from Philadelphia. By the act of July 11, 1846,
See Audit; Descent, Canons of; Equal, Equally; Congress retroceded the county of Alexandria to Vir-
Property.
ginia. The District constitutes the county of Wash-
3. As applied to a publication like a news- ington.
paper or a periodical, imports a delivery to A citizen of the District of Columbia Is not a citizen'
persons who have bought or otherwise be- of The
a State.
laws2 in force December 1, 1873, were revised
come entitled to the same.'
and republished, by direction of Congrecs, in a separate
DISTRICT. A division of territory. volume known as the Bevised Statutes relating to the
1. Originally, the space within which a District of Columbia.' See Courts, page 384; Lew, 3.
lord could coerce and punish — distrain. * DISTRINGAS. L. That you distrain.
The circuit within which a man might be compelled
The emphatic word in the writ of " distress
to appear, or the place in which one hath the power
of distraining.* infinite" (q. v.), when expressed in Latin.
2. A division of a State or Territory for The writ enforced compliance with some- ,
thing required of the person (natural or arti-
: any purpose whatever : as, coZZech'Jwjdistrict, ficial) named in the writ.
for the collection of revenue duties}^on-
Eef erring to a defendant who neglected to appear,
gressional district, for the election of repre- a process issued from the court of common pleas com-
sentatives inCongress ; election district, for manding the sheriff to distrain the defendant from
purposes of elections, municipal, State, or time to time, by taklug his goods and the profits of his
United States ; judicial district, for judicial
The process against a body corporate, which, hav-
lands.*
purposes — with its district court, district ing been served with a subpoena issued out of chaa-
judge, district attorney, and district clerk; cery, fails to appear in court, is hy distringas, to
land district, for regulating sales of public distrain them by their goods and chattels, rents and
lands ; school district, for purposes connected profits, till they obey the summons.' ^,
with the public schools ; tax district, for the In detinue, after judgment, the plaintiff had a dis-
tringas, tocompel the defendant to deliver the goods,
levying and collection of taxes. by repeated distresses of his chattels.'
May designate an area larger or smaller than a
Distringas juratores. That you distrain the
county ; as, the district from which the jury in a crim- jurors. A writ commanding the sheriff to distrain
inal case may be drawn."
jurors by their lands and goods, so that they be con-
A " taxing " district is not necessarily a large divis- strained toappear in court.'
ion of a State's territory, like a county or parish, as, Distringas nuper vice oomitem. That you
in the act of Congress of June 7, 1862, § 6; it may be distrain the late sheriff. A writ to compel a sheriff
any portion of territory solely for the assessment of
who had gone out of office to bring in a defendant, or
taxes.' See D, 3; Precinct, to sell goods under a fieri facias which he failed to do
District attorney. See Attoenet-Gen- while in office. ^
ERAIi.
' Constitution, Art. I, sec. 8, par. 17.
' Eoorbach v. Lord, 4 Conn. 3 2 Cissel V. McDonald, 16 Blatch. 15a-54 (1879), cases.
'See 1 Bouvier's Law Diet. 544; 2 Kent, 420, 426. = See generally Fort Leavenworth B. Co. v. Lowe, 114
s Dawley v. Alsdorf , 25 Hun, 227 (1881). U. S. B28-29 (1885).
* 3 Bl. Com. 280.
* [Webster's Diet.
5 [Jacob's Law Diet. ^ 3 Bl. Com. 445. See 37 Hun, 546 ; 89 N. C. 585.
»3B1. Com, 413.
8 State V. Kemp, 34 Minn. 62 (1886).''
'Keely v. Sanders, 99 U. S. 448-49 (1878); De Treville ' 3 Bl. Com. 354; 1 Arch. Praot. 365.
V. SmaUs, 98 id. 517 (1878). 8 See 1 Tldd, Pract. 313.
 369
DISTURBANCE DIVIDEND

DISTURBANCE. 1. Interruption of a from its profits to bo divided among its mem-

;ate of peace; disquiet; disorder: as, tlie
isturbance of a lawful public meeting.i The dividends declared by a corporation in business
bers.!
ee Assembly; Peace, 1. are, and, except under special circumstances, always
tehould be, from profits. Hence, the word frequently
2. A wrong to an incorporeal heredita- carries with it the idea of a division of profits; but
lent, by hindering or disquieting the owner that is not necessarily its only meaning. Its special
1 his lawful enjoyment of it.2 See Enjoy- signification, in a particular case, Is dependent upon
ENT, Quiet. the character of the thing divided."
It may be of a franchise, a common, a way, or a Does not necessarily imply aproraiadistribution.a
inure.^ Preferred dividend. A dividend paid
DITCH. See Drain. to one class of shareholders in priority to
DISUSE. See Use, 2. that to be paid to another class.*
DrVERS.s Several; sundry; more than Preferential dividend. A preference to a
ne, yet not rnany. limited extent in the division of the sum to
In an indictment for the larceny of a numher of be divided.5
rticles all of one kind, the allegation may be "di- Dividends on preferred stock are payable only out
srs," " divers and sundry," or " a quantity," without of net earnings applicable thereto: they are not pay-
ating a specific number, along with an averment of able absolutely and unconditionally, as is interest.
le aggregate value of the whole number.* Until declared, the right to a dividend is not a debt;
and the obligation to declare it does not arise until
DIVERSION". Turning a stream, or a there is a fund from which it can properly be made.
art of it, from its accustomed direction or
atural course. ' When to declare a dividrind, and the amount thereof,
is, ordinarily, a matter of internal management. Un-
DIVEST. See Vest.
less it appears that somebody in particular will be
DIVIDE. See Division ; Partition. injured, a court of equity will not interfere.'
DIVIDEND. A portion of the princi- A dividend declared out of earnings is not an asset
of the company, but belongs to the shareholder. The
al or the profits of a thing divided among
corporation holds it as his trustee. Before the divi-
s several owners.* dend is declared, each share of stock represents the
1. In bankruptcy and insolvency law, as- owner's whole interest; when he transfers the share,
its apportioned among creditors. he transfers his entire right; hence, a dividend subse-
2. In the administration of the estates of quently declared belongs to the new holder."
A stock dividend does not diminish or interfere with
ecedents, a distributive share.' See Equal. the property of a corporation. It simply dilutes the
3. A distribution of the funds of a corpo- shares as they existed before. The corporation is
ition among its members, pursuant to a just as capable of meeting demands upon it; the ag-
ote of the directors or managers.i^ gregate of the stockholders own the same interest
they had previously. When stock has been lawfully
Corporate funds derived from the business
created, a dividend may be made, provided the stock
lid earnings of a corporation, appropriated represents property. There is no statute in New York
y a corporate act to the use of, and to be which requires dividends to be made in cash; and
ivided among, the stockholders.' there is no rule or policy of law which condenms a
property dividend. The stockholders can take the
Referring to a corporation engaged in busi-
property divided to them and sell it for cash. But a
Bss, and not being closed up and dissolved, — dividend payable in cash, or payable generally, makes
fund which the corporation sets apart
the corporation a debtor. ^
See Ex, 3; Stock, 3 (3), Preferred.
> See 4 Bl. Com. .54; State v. Oskins, 38 Ind. 364 (1867),
,ses; Wall v. Lee, 34 N. Y. 141 C1865), cases. 1 Lockhart v. Van Alstyne, 31 Mich. 79 (1875), Cooley,
' [3 Bl. Com. 236. J.; 108 U.S. 899.
' L. diversus, different. 'Eyster v. Centennial Board, 94 U. S. 504 (1876),
' Commonwealth v. Butts, 134 Mass. 453 (1878), cases. Waite, C. J. See Gary v. Savings Union, 23 Wall. 41
» [Parker v. Griswold, 17 Conn. *399 (1845). (1874); 18 Barb. 667; 8 R. I. 333; 1 De G. & J. •630-37.
■ [Commonwealth v. Erie, &c. R. Co., 10 Phila. 466 s Hall«. Kellogg, 13 N. Y. 335 (1855).
173).
« Tatt V. Hartford, &c. B. Co., 8 R. 1. 333 (1866), Brad-
'177).
University v. North Carolina R. Co., 76 N. C. 105 ley, C. J. See55Vt. 129, m/ra.
» See Henry t>. Great Northern Ey. Co., 1 De Gex &
'Williston V. Michigan, &c. E. Co., 13 Allen, 404 J. *mn (1857).
i66).
« Chaffee v. Rutland R. Co., 55 Vt. 126, 137, 133 (1883),
' [Hyatt V. Allen, 56 N. Y. 556 (1874), Andrews, J. ; cases,
laffee v. Rutland R. Co., 55 Vt. 139 (1883); Pierce, ' Jermain v. Lake Shore, &c. R. Co., 91 N. Y. 493 (1883).
lilr. 130. s Williams v. Western Union Tel. Co., 93 N. Y. 189
(34)
 DO
DIVINE S70

The inhibition upon the legislative department

DIVINE. See God; Law; Oath; Re-
ligion; Sunday; Woeship. against exercising judicial functions, implied from the
division of government into three departments, has
DIVISION. 1. A setting apaxt : separa- never been understood to exclude control by the legis-
tion, apportionment, partition, sharing out; lature of a State over the marriage relation, notwith-
also, a separate part or portion, a share, an standing that the exercise of sucb power may involve
allotment. See Equal ; Fence ; Wall. investigation of a, judicial nature. Hence, unless for-
bidden by the constitution, a legislature may grant a
Divisible. Admitting of separation into
distinct parts ; separable. IndiTisible. En- divorce.*
Congress is not empowered to legislate upon the
tire; inseparable. subject; and the legislation of the States and Territo-
Agreements, covenants, and considerations may or ries is far from uniform. ,In South Carolina divorce
may not be divisible into parts performed or capable Is not allowed for any cause; in New York for adul-
of being performed or enforced, or into pai-ts which tery only. Elsewhere it is allowed for adultery,
are lawful and parts which are unlawful.^ See Con- cruelty, indignity, willful desertion, or sentence to a
TBACT, Divisible; Utbre, Utile, etc. State's prison for two years or longer period, habitual
Undivided. That a tract of land, held drunkenness, pre-contract, fraud (incontinency, or
in common, shall remain undivided, implies pregnancy), coercion, imbecility pr impotency un-
known to the other party, consanguinity, and affin-
that the land is not subject to partition, is
ity, qg. V.
not to be divided, set off^ allotted to individ- Common defenses are: connivance, collusion, con-
uals in severalty.2 donation, recrimination, denial of allegation of deser-
tion or infidelity.
3. Difference of opinion; non-concurrence
in a decision. See Opinion, 3. Some of the consequences of a divorce follow di-
rectly from the law, others may depend upon the spe-
3. Separation of the members of a legisla- cial order of court: the law ends all rights, based upon
tive body, to ascertain the vote cast. the marriage, not actually vested; as, dower and cxu't-
DIVISUM. See Imperium. esy,' and the husband's power over the wife's choses
in action. The court may allow alimony, and direct
DIVORCE.^ The dissolution or partial the custody of children.
suspension, by law, of the marital relation. A decree made in one State, being a judgment of
A dissolution is termed a divorce from the record, will be given its original force in every other
bond of matrimony — a vinculo matrimonii; State. Eor this purpose, courts of equity, Federal,
a suspension, divorce from bed and board — and State, have jurisdiction.' But, otherwise, if the
a mensa et thoroA record shows on its face that a party was a non-resi-
" Divorced " imports a dissolution, in the largest A marriage forbidden by a decree of divorce in one
sense, of the marriage relation.^ dent.*
State may be contracted in another State not also
In England, prior to 1857, the subject of divorce be-
longed to the ecclesiastical courts and to parliament. prohibiting
The decreeit.'in nature is in rem. It determines the
Statutes of 20 and 81 Vict. (1857) c. 86, created the
question of the marriage relation, or of the personal
Court of Divorce and Matrimonial Causes, with exclu-
sive jurisdiction in all matrimonial matters. Divorce status, as against the world, and is therefore conclu-
causes are now heard in the Probate and Divorce Di- sive upon parties and strangers.*
See, further, the related topics mentioned.
vision of the High Court of Justice, appeal lying to the
Court of Appeal. DO; DONE. See Act, 1; Make; Fa-
In this country, formerly, it was common for the
legislatures to grant divorces by special acts, but the 1 Maynard v. Hill, 136 U. S. 203-9 (1888), cases, Field,
practice fell into disuse, and is now forbidden in some
J., deciding that the act of Dee. 33, 1852, of the Terri-
States, by the constitution. The necessary jurisdic- tory of Oregon, divorcing one Maynard and wife, was
tion is generally conferred upon courts possessing constitutional.
equity powers.* 2 See Barrett v. Failing, 111 U. S. 625 (1884), cases.
190, 192 (1883). See also Bailey u N. Y. Central E. Co., » Barber v. Barber, 21 How. 591, 584 (1868); CJieever
^ Wall. 605, 633 (1874); generally, 19 Am. LawEev. V. Wilson, 9 Wall. 124 (1869).
571-88, 737-83 (1886), cases. < Hood V. State, 56 Ind. 263 (1877); People v. Baker,
1 See Oregon Navigation Co. v. Winsor, SO Wall. 70 76 N. Y. 78 (1879); BlaoMnton v. Blackinton, 141 Mass.
(1873), cases. 485 (1886), cases; 30 Kan. 717; 34 Iowa, 204.
' Wellington v. Petitioners, 16 Pick. 98 (1834). *Van Voorhls v. BrintnaU, 86 N. lY. 18, 24 (1881),
* F. : L. divortium, separation,— 4 Mo. 14a. Divorce- cases; 16 Am. Law Eeg. 65-78, 193-304 (1877), cases;
ment is obsolete. Whart. Confl. Laws, | 135. Marrying again, as big-
' 2 Bishop, Mar. & D. § 226; 1 Bl. Com. 440. amy, 17 Cent. Law J. 83-86 (1883), cases; 20 Am. Law
6 Miller v. Miller, 33 Cal. 355 (1867). Eev. 718-26 (1886), cases. National legislation, 21 Am.
8 See Bishop, Mar. & D. §§ 664, 78, 85; 17Nev. 231. In Law Eev. 676-78 (1887), cases. The new French act, 1
Delaware, during the session of the legislature for Law Quar. Eev. 358 3885).
1886-87, forty-four special acts were passed. » McGill V. Deming, 44 Ohio St. 657 (1887), cases.
 DOCK 371 DOCUMENT

DOCK.i 1, V. To clip, cut off a part: to ment of a judgment made from the record or roll,
iminish. kept with the clerk, in a book alphabetically ar-
Dock an account. To deduct something ranged.'
Such docket affords purchasers and incumbrancers
rom a particular account. information as to the liens of judgments."
Dock an entail. To curtail, destroy, de- Entries in dockets mayor may not be "records."
eat an estate tail. They are admissible in evidence when a formal record
2, n. (1) The space between wharves. is not required.
Notice, 1. ' See Index; Judgment; Minutes, 1;
Vhence dockage: a charge for the use of a
DOCTOR. One qualified to teach: a
ock;2 dock-master; dock-warrant. See learned man ; a person versed in one or more
Vharf. sciences or arts.
The occupant of a dock is liable in damages to a
erson who, while using it, is injured in consequence Doctor of laws. A title conferred by a
C a defect permitted to exist, provided the injured college or university upon a person distin-
erson exercised due care.^ guished for his attainments in one or several
A dry-dock is not a subject of salvage service. The departments of learning. Whence LL. D.,
let that it floats does not make it a " vessel," which from the Latin legum or legibus doctor.
nly Is a subject of salvage.*
(2) A space inclosed within a court room, Doctor of the civil law. A degree con-
or occupancy by an accused person while in ferred upon a person who has pursued a pre-
ourt awaiting trial or sentence: the pris- scribed course of study in general jurispru-
ner's dock. dence in a law school or university. Abbre-
DOCKET. 1, V. To abstract — and enter viated D. C. L. See Degree, 3.
Doctor of medicine or physic. As
i a book.5 See Dock, 1.
To enter in a book called a docket. popularly used, a practitioner of physic, irre-
2, n. A brief writing ; an abstract, an epit- spective of the system, or school.* See
Physician.
me.
Originally, a memorandum of the substance of a DOCTRINE. The principle involved,
xjument written upon the back or outside of it. In applied, or propounded: as, the doctrine of
me, these memoranda, particularly those of judg- escheat, estoppel, relation; the cy pres doc-
ments, were transcribed into books, and the name trine.
docket " thereafter designated the books.
A brief statement in a book of the things DOCUMENT. That which conveys in-
formationthat
; which furnishes evidence or
one in court in the progress of a cause; also,
proof; a written or printed instrument.
le book which contains such history ; and,
An instrument on which is recorded, by
jain, a volume for the entry of all abstracts
means of letters, figures, or marks, matter
: a particular sort.
Whence docket costs, docket entry, docket receipt, which may be evidentially used.5
icket record, docket /ee — see Fee, 2. Documentary. Pertaining to what is
Numerous terms are in use descriptive of the nature written; consisting of one or more docu-
the entries in dockets or of the persons by whom ments :as, documentary evidence.
ey are made. Thus, there may be a, prothonotary^s Ancient document. Any private writ-
a clerk's docket, a sheriff's or a marshal's docket,
e docket of a magistrate, of an alderman or of a ing thirty or more years old. See Weiting,
Ancient.
slice of the peace, an attorney's private docket; a
nl, an equity, or a criminal docket, an appearance Foreign document. Such writing as
d an issue docket, a recognizance docket; a trial
originates in or comes from another juris-
cket — of ten referred to as "the docket;" a judg- diction.
ynt and an execution docket; an ejectment, a me-
Judicial document. Any instrument
anic's lien, a, partition docket; an auditor's report
cket. emanating from a court of justice. Iiegisla-
The docket of judgments is a brief writing or state- tive, and executive, document. Any
1, V. Welsh toe-, doc-, to cut short, curtail. 2, n.
itch dokke, a harbor: Gk. doche, receptacle. 1 Stevenson v. Weisser, 1 Bradf. 344 (N. T., 1860).
City of Boston v. Leorow, 17 How. 434 (1854); The ' Appeal of First Nat. Bank of Northumberland, 100
okeye State, 1 Newb. 71 (1856). Pa. 437 (1882).
Nickerson v. Tirrell, 187 Mass. 239 (1879), cases. s Philadelphia, &c. R. Co. v. Howard, 18 How. 331
Cope V. Vallette Dry-Dock Co., 119 U. S. 627 (1887). (1851), cases; Be Coleman, 16 Blatch. 486-27 (1879), cases.
[8 Bl. Com. 897; 2 id. 511. Informer times spelled * [Corsi V. Maretzek, 4 E. D. Sm. 5 (N. T., 1865).
» 1 Whart. Ev. § 614.
ocquet."
 DOE DOLLAE
372

instrument or record made or kept in the pearance of parties at a time when furnish-
legislative or executive departments of gov- ing security for the prosecution of a suit by
ernment, and evidence of public business the plaintiff, and for attendance by the de-
therein. fendant, had become matters of form.l
Private dbeument. An instrument af- The names may have been first used for the ficti-
tious plaintiff and defendant in the old action of eject-
fecting the concerns of one or more individ-
uals. Public document. An instrument Wherement.' defeiidants,
See Straw. ■" whose real names were not
or record concerning the business of the known to the plaintiff, were described as " John Doe
people at large, preserved in or emanating and Richard Roe, owners " of a particular vessel,
and the true owners voluntarily appeared and filed
from any department of government; also,
answers, it was held that the plaintiff need not prove
a publication printed or issued by order of
the ownership of the vessel. ^
one or both houses of Congress or of a State DOGr. See Animal ; Game, 3 ; Keeper, 3 ;
legislature. Worry.
Public documents include state papers, maps, The almost unbroken current of authority is that,
charts, and like formal instruments, made under pub- although dogs are property, their running at large in
' lie auspices. A copy of such document, issued by- cities may be regulated or entirely prohibited; the r&-
public authority, is as valid as the original; as, an
quirement may be that they be classified, be regis-
officially published statute. The term also embraces tered, wear collars, and be destroyed if found running
official records recjuired to be kept by statute. ^
A public statute proves its own recitals; not so, a at large in violation of a statute or ordinance.'*
A dog is a "thing of value," and may be stolen,
private statute. Journals of legislatures and execu- and burglary may be committed in attempting to
tive documents are 23Wma/acie evidence of the facts
they recite. ^ steal it. 6
DOLI. See Dolus.
Official Registers, kept as required by law, are evi-
dence of the facts they record. They must be iden- DOXjLAK. The unit of our currency; —
tified, be complete, indicate accuracy, and not be
money, or its equivalent.^
secondary.^ A silver coin weighing four hundred and
Parish records of births, baptisms, marriages, and
deaths are receivable as evidence when made by the twelve and one-half grains, or a gold coin
persons whose duty it was to note such facts.* weighing twenty-five and four-fifths grains,
Family records prove family events. of nine-tenths pure to one-tenth alloy of
A relative instrument is inadmissible without its
each metal.'
correlative. Admission of a part involves the whole The coined dollar of the United States ; a
document. All the usual iacidents accompany the
document. 5 certain quantity and fineness of gold or sil-
A document is to be proved by him who offers it; ver, authenticated as such by the stamp of
otherwise, when produced in pursuance of notice, or the governments See fui'ther Coin.
by an adverse party who relies on the writing as part
A contract to pay in '■ dollars " means in lawful
of his title. A document sued upon must be proved money of the United States, and cannot be explained
when its execution has been denied.^ by parol; otherwise, of a contract made in another
In matters of execution the law of the place where country, or in the late Confederate States, in which
the instrument is to have effect governs. A writing last case the reference may be to " Confederate dol-
void as a contract may be valid as an admission. The
identity of a signer is to be proved. An agent's power "Dollars " will be supplied where the context shows
to execute must first be shown.' lars." " omitted.'"
that word
See Alteeation, 2; Book; Copt; Evidence; Hakd-
wbitikg; Inspection, 2; Instrument, 2, 3; Lost, 2; > 3 Bl. Com. 274, 287, 295.
Newspaper; Record; Seal, 1; Stamp; Wbiting. = 3 Steph. Com. 618.
s Baxter v. Doe, 142 Mass. B62 (1886) ; Pub. St. c. 161, § 80.
DOE ; ROE. ' ' John Doe " and ' ' Richard
* State V. City of Topeka, 36 Kan. 84 (1886), oases.
Eoe" were fictitious persons used as stand- See generally 20 Alb. Law J. 6-10 (1879), cases.
ing-pledges (common bail, q. v.) for the ap- = StSjte V. Yates, 0. P. of Fayette Co., Ohio: 37 Alb.
Law J. 232 (1888); ib. 348-50, cases.
1 See McCall v. United States, 1 Dak. 321-28 (1876;, « United States v. Auken, 96 U. S. 368' (1878).
cases; 1 Sup. E. S. pp. 154, 288. ' Borie v. Trott, 5 Phila. 366, 404 (1864), Hare, J.
» 1 Whart. Ev. §§ 635-38; Whiton v. Albany, &o. Ins. 9 Bank of New York v. Supervisors, 7 WaU. 30 (1868),
Co., 109 Mass. 30 (ISTl), cases. Chase, C. J.
3 1 Whart. Ev. §§ 639-48; 1 Greenl. Ev. §§493, 484, 496. » Thornlngton v. Smith, 8 Wall. 12 (1868), Chase, 0. J. ;
' 1 Whart. Ev. §§ 649-59; 1 Greenl. Ev. § 493. Cooku. Lillo, 103 U. S. 792 (1880); 35 lU. 396, 440; 39
■ 0 1 Whart. Ev. §§ 618-20, 648. N. Y. 98; 1 W. N. C. 223; 33 Tex. 351.
« 1 Whart. Ev. §§ 689-91, 736. '"Hmes V. Chambers, 29 Minn. 11 (1884); Hunt v.
' 1 Whart. Ev. §§ 700-2, 739 a. Smith, 9 Kan. 153 (1878).
DOLUS 373 DOMAIN

An instrument in the form of a promissory note for " Eminent " imports having preference, bein^ para-
e payment of " 23.00 as per deed, 10 per cent, till mount, prerogative, sovereign.
,id," is a note for twenty-flve dollars.' All separate interests of individuals in property are
Where a jury found " for the plaintiff in the sum of held of the government under the implied reservation
irteen hundred and ninety-nine and 48-100," it was that the property may be taken for the public use,
ild that the omission of the word " dollars " was not upon paying a fair compensation, whenever the public
.oh a defect as prevented rendering judgment ac- interest requires it. The possession is to be resumed
irding to the intent of the jmy, altlaough it would in the manner directed by the constitution and laws.'
ive heen more regidar to have amended the verdict The ultimate right of the sovereign, power
if ore judgment." to appropriate, not only the public property,
Any mark commonly employed in business trans-
itions to denote the division of figures, obviously rep- but the private pi-operty of all citizens within
isenting money, into dollars and cents, is sufficient the territorial sovereignty, to public purposes.
ir that purpose." Vattel says that the right in society pr the
"One dollar" — see Consideration, 2, Nominal. sovereign to dispose, in case of necessity, and
See generally Coehenct; Money; Tender, Legal;
rAR. for the public safety, of all the wealth (prop-
DOLUS. L. Device, artifice, guile, craft, erty) in the state, is " eminent domain," and
itention to deceive, — especially when used a pi-erogative of majesty.-
In every political sovereign community there in-
,'itli mahis: actual fraud. Evil purpose; heres, necessarily, the right and the duty of guarding
nlawful intention, illegal ill-will; legal its own existence, and of protecting and promoting
lalice. Compare Culpa. the interests and welfare of the community at large.

Doli capax. Able to distinguish between This power, denominated the " eminent domain " of
the state, is, as its name imports, paramount to all
ight and wrong ; having capacity to intend private rights vested under the government, and these
iTong, to cotumit crime. Doli incapax. last are, by necessary hnplication; held in subordina-
ncapable of meditating wrong. tion to this power, and must yield in every instance to
Capacity for guUt is measured by the strength of its proper exercise. The whole policy of the countiy
relative to roads, mills, bridges, and canals rests upon
lie understanding. Under seven years of age, an in-
ant cannot be guilty of felony; under fourteen, this single power, under which lands have always been
bough he be prima facie adjudged doU incapax, yet condemned; without the exertion of the power no one
E it appears that he was doli capax, and could discern of these improvements could be constructed. The ex-
ercise of a franchise is subject to the power.'
letween good and evil, he may be convicted.* The propriety of exercismg the right is a political
Dolus bonus. Craftiness which falls short
question — exclusively for the legislature to deter-
>f fraud; as, adroitness in effecting a sale,
lot amounting to false representation. The mode of e?:ercising the right, in the absence of
mine.*
Dolus malus. Actual false representa- provision in the organic law prescribing a contrary
ion, intended to injure. course, is within the discretion of the legislature. If
Ex dolo malo. See AcTiq. the purpose be a public one, and just compensation be
See Deceit; Fraud. paid or tendered the owner of the property taken,
there is no hmitation upon the power of the legisla-
DOM. As a termination — jurisdiction,
property, as in kingdom; or — state, condi- The right of eminent domain exists in the govern-
tm'e.5 ment of the United States, and may be exercised by
;ion, quality, as in freedom, serfdom. Orig-
it withm the States, so far as is necessary to the en-
nally, doom— judicial sentence.
Dom-bee or -boc. See Dome. joyment of the powers conferred by the Constitution.
Such authority is essential to its independent existence
DOMAIN.^ 1. Dominion, ownership, and peipetuity. These cannot be preserved if the
Droperty ; absolute proprietorship or right of obstinacy of a private person, or if any other author-
xjntrol.s
1 Beekman v. Saratoga, &c. E. Co., 3 Paige, T2-13
Domain, eminent. The power to take (1831), Walworth, Ch.: Bloodgood v. Mohawk, &o. E.
private property for public uses is termed Co., 18 Wend. 13-18 (IH:)'!), cases.
s Charles Eiver Bridge v. Warren Bridge, 11 Pet. *641
''the right of eminent domain."' 619,
(1837), Story, J. Vattel is also quoted in 109 U. S.
1 State V. Schwartz, 64 Wis. 433 (1885>
1" Hopkins v. Orr, 184 U. S. 513 (1888), cases. Gray, J. > West Eiver Bridge Co. v. Dix, 6 How. 631-33 (1848),
3 Delashmutt v. Sellwood, 10 Oreg. 325 (1883). Daniel, J.
« 4 Bl. Com. 23. post.
* Hyde Park v. Cemetery Association, 119 111. 149
»F. domaine, a, lordship: L. dominium, right of (1886) ; ;il Mass. VS.
)wnersliip. Compare Demesne; Domain. , ■ 'Secombe v. Milwaukee, &c. E. Co., 23 Wall. 118
• See -2 Bl. Com. 1. (isr4)- People V. Smith, 21 N. Y. 697-98 ^800); Holt v.
' United States v. Jones, 109 U. S. 518 (1883), Field, J. Council of Somerville, 127 Mass. 410, 413 (1879).
 DOME
DOMAIN 874

ity, can prevent the acquisition of the means or instru- poration, to be exercised in the execution of a workin
ments by which alone governmental functions can be which the public is interested. Whether attached con-
pel-formed. No one doubts the existence in the State ditions have been observed is a matter for judidal
governments of the right of eminent domain, — a right
cognizance. ^
Ascertainment of the amount of compensation to
■distinct from and paramount to the right of ultimate
ownership. It grows out of the necessities of their be made is not an essential element of the power
being, not out of the tenure by which lands are held. of appropriation. The constitutional provision for
It may be exercised, though the lands are not held by " just compensation " is merely a limitation upon the
grant from the government, either mediately or im- use of the power. It is no part of the power itself, but
mediately, and independent of the consideration a condition upon which the power may be exercised.
whether they would escheat to the government in case The proceeding for the ascertainment of the value of
of a failure of heirs. The right is the offspring of po- the property and the compensation to be made is
litical necessity; and it is inseparable from sover- merely an inquisition to establish a particular fact as
eignty, unless denied to it by its fundamental law. But a preliminary to the actual taking; and it may be
it is no more necessary for the exercise of the powers prosecuted before commissioners, special boards, or
of a State government than for the exercise of the the courts, with or without the intervention of a jury,
conceded powers of the Federal government. That as the legislative power may designate. All that is
government is sovereign within its sphere, as the States required is that it shall be conducted in some fair and
are within theirs. When the power to establish just manner, with opportimity to the owners of the
post-offtees and to create courts within the States was property to present evidence as to its value, and to be
conferred upon the Federal government, included in heard thereon. Whether the tribunal shall be created
it was authority to obtain sites for such offices and for directly by an act of Congress, or one already estab- -
court-houses, by such means as were known and ap- lished by the States shall be adopted for theoccasion»
propriate. The right of eminent domain was one of is a matter of legisiittive discretion. ^
those means well known when the Constitution was The right over the shores and the land under the
adopted, and employed to obtain lands for public uses. water of navigable streams resides in the State for
Its existence, therefore, in the grantee of that power municipal purposes, within legitimate limitations. ^
ought not to be questioned. The Constitution Itself Land taken for one purpose cannot, without special
contains an implied recognition of it beyond what may authority from the legislature, b^ appropriated, by
justly be implied from the express grants. The Fifth proceedings in invitum, to a different use.*
Amendment contains a provision that "private prop- The power of eminent domain .expropriates, upon
erty "shall not " be taken for public use without just indemnity for public utility; the "police power" is
compensation." What is that but an implied asser- exercised without making compensation — any loss
tion that, on making just compensation, it may be occasioned is damnmn absque injuria.^ See further
taken. . This power of the Federal government Police, S; Use, 2, Public.
has not heretofore been exercised adversely; but the See also Compensation, 3; Land, Public; Pake, S;
Take, 8.
non-user of a power does not disprove its existence.
In some instances the States, by virtue of their own 3. Territory owned and governed ; lands.
right of eminent domain, have condemned lands for
Domain, public. Public lands, with any
the use of the general government, and such condem-
nations have been sustained by their courts, without, buildings thereon,, held in trust by the gov-
ernment.
however, denying the right of the United States to act
independently of the States. . . The proper view of Congress has exclusive power to dispose of the
the right of eminent domain seems to be that it is a public domain of the United States, and the exercise
right belonging to a sovereignty to take private prop- of the power is limited only by the discretion in that
erty for its own public uses, and not for those of an- body.^ See Lands, Public.
other. Beyond that there exists no necessity; which DOM£. A judgment, decree, sentence.
alone is the foundation of the right. If the United Dome-book. Any book of judgments.
States have the power, it must be complete in itself. Alfred collected the customs of the kingdom and
It can neither be enlarged nor diminished by a State.
Nor can any State prescribe the manner in which it reduced them to a system or code in his " Dom-bec,'"
must be exercised. The consent of a State can never
be a condition precedent to its enjoyment. Such con- 1 Mississippi, &c. Boom Co. v. Patterson, 98 U. S. 406
sent is needed only, if at all, for the transfer of juris- (1878).
diction and of the right of exclusive legislation after a United States v. Jones, 109 U. S. 518-19 (1883), Field,
the lands shall have been acquired. ^ J. See Wagner v. Railway Co., 38 Ohio St. 35 (1883).
The right requires no constitutional recognition. » Omerod v. New York, &c. R. Co., 13 F. R. 370 (1883).
When the use is public, the necessity or expediency of 4 Prospect Park, &c. R. Co. v. Williamson, 91 N. T.
the appropriation is not a subject of judicial cogni- £53, 561 (1883) ; Anniston, &c. R. Co. v. Jacksonville, &c.
zance. The power may be delegated to a private cor- R. Co., 82 Ala. 300 (188B), cases.
"Bass V. State, 34 La. An. 496(1882); Davenport u.
iKohl V. United States, 91 U. S. 371-74 C1875)„ cases, Richmond City, .81 Va, 639 (1886); 17 F. R. 114^ 81 Pa.
Strcing, J. Approved, Fort Leavenworth R. Co. v. 85. See generally 3 Law Q. Rev. 314-25 (1887), c^ses; 2
Lowe, 114 id. 531 (1885); Eoanoke City v. Berkowitz, 80 Kent, 33!}; 19 Bost. Law Rep. 241, 301. '
Va. 619, 623 (1885). 8 West River Bridge Co. v. Dix, 6 How. 54CI (1848);
 375
DOMESTIC DOMICIL

for the use of Ms tribunals. The volume also con- 3. Relating to the law, property, trade, or
tained the maxims of the common law, forms for ju- inhabitants of some particular State.
dicial proceedings, and certain penalties.'
The book may be seen, in both Saxon and English, For the benefit of creditors within the
in "The Ancient Laws and Institutes of England," debtor's own State: as, a domestic assign-
published by the Record Commissioners, Vol. 1, ment, q. v.; whence, also, domestic cred-
pp. 45-101. At the head of the book stand the Ten itors.
Commandments, followed by many Mosaic precepts.
After quoting the canons of the apostolic council at Maintainable against a resident debtor: as,
Jerusalem, Alfred refers to the commandment "As a domestic attachment, q. v.
ye would that men should do to you, do ye also to Created under the laws of the State in
them," adding, " from this one doom a man may re- which it transacts business: as, a domestic
member that he j udge every one righteously : he need corporation, q. v. i
heed no other doom-book.""
The Commandments and such portions of the Law Rendered by a court of the State where it
of Moses as were prefixed to the code became a part was first entered or enrolled : as, a domestic
of the law of the land. Labor oh Sunday was made decree, or judgment, q. v.
criminal, and heavy pimishments were exacted for Arising or committed within the borders of
perjury. 3 a State or among the inhabitants thereof: as,
Domesday-book. A survey of all the domestic violence, q. v.
lands in England, with the names of their
4. Relating to the territorial Hmits or to
owners, their value, etc., compiled, by direc-:
the jurisprudence of two or more States, or
tion of the Conqueror, 1081-86. of the whole United States.
The completeness of the survey made it " a day of Confined within the United States, or, pos-
judgment " as to the extent, value, and other qualities
of every piece of land. It was practically a careful sibly, one State: as, domestic commerce,
census, and became a final authority on tenures and manufactures, qq. v.
titles. The two original volumes are preserved in the Acquired within a subdivision of a coun-
Exchequer.^ try : as, a domestic domicil, q. v.
DOMESTICS Belonging or pertaining
Resident within the State or country in
to one's own home. State, or country. question : as, a domestic factor, q. v.
1. Residing in the same house with the
master he serves: as, a domestic servant; or, DOMICIIi.' The place where a person
lives or has his home ; that is, where one has
simply, a domestic : a house servant ; not, an
his true, fixed, permanent home and princi-
outdoor workman, nor a pei-son hired for a pal establishment, and to which, whenever
day.6 he is absent, he has the intention of return-
Living about the habitations of men; tame,
domesticated : as, a domestic animal, q. v.
The habitation fixed in any place, without
3. Relating to the law of the place of a per-
son's domicil. any present intention of removing there-
ing.^
Having jurisdiction at one's domicU: as, Domiciliate, or domicile. To establish
the domestic court, forum, tribunal. from.'
one, or oneself, in a fixed residence.
Appointed at the place of residence — of
the person lately deceased, or of a ward : as, Domiciliary. Pertaining to one's perma-
nent residence: as, a domiciliary court, the
a domestic administrator, guardian, q. v.
domiciliary administrator or guardian, domi-
ciliary inspection or visitation.
United States v. Gratiot, 14 Pet. 536 (1840); 1 Kent, 168, There is a wide difference between domicil and
857; 37 Am. Jur. 131. mere residence. While they are usually at the same
' 4 Bl. Com. 411 ; 3 id. 65. place, they may be at different places. Domicil is the
' See 1 Bl. Com. 65, note by Warren. established, fixed, permanent, ordinary dwelling place
« Green, Short Hist. Eng. People, 81.
' See 2 Bl. Com. 49, 99; 3 id. 331; Green, Short Hist. ' Spelled also domicile. F. domicile, a dwelling: L.
Eng. People, 114. doinicilium, habitation: domus, a house; and -ciliutn,
' L. domesticua, belonging to a household: domus, a allied to celare, to hide.
house. " Story, Conf . Laws, § 41 ; Hannon v. Grizzard, 89 N.
*Bxp. Meason, 5 Binn. 174-^ (1812); Wakefield v. C. 120 (1883), Smith, C. J. ; 75 Pa. 205.
State, 41 Tex. 558 (1874); Eichardson v. State, 43 id. 456 s Putnam v. Johnson, 10 Mass. *601 (1813), Parker, J. ;
(1875); Ullraan v. State, 1 Tex. Ap. 221 (1876); Water- State V. Moore, 14 N. H. 454 (1843); Crawford v. Wilson,
house V. State, 21 id. 666 (1886). See B. S. § 4063. 4 Barb. 520 (1848).
 DOMICIL DOMINION
376

or residence of a party, as distinguished from his sable: residence in the new locality, and the intention
temporary and transient though actual place of resi- to remain there, facto ef animo. Mere absence from
dence. One is his legal residence as distinguished a fixed home, however long continued, cannot, work
from his temporary place of abode; in other words, the change. Among the circumstances usually relied
one is his home, as distinguished from the place or upon to establish the animus manendi are: declara-
places to which business or pleasure may temporarily tions, exercise of political rights, payment of personal
call him.' taxes, a house of residence, a place of business.'
Primarily a person's domicil is his legal home; but A change does not depend so much upon the inten-
domicil Implies more than mere residence in a coun- tion to remain in the new place for a definite or an in-
definite period, as upon its being without an intention
try.2
The domicil of a person may be in one place and to return to the former place of actual residence. An
his residence in another. ^ intention to return, however, at a remote or indefinite
Residence, with no present intention of removal, period, will not control, if the other facts which con-
constitutes domicil.* stitute domicil all give the new residence the charac-
"Domicil" has a fixed and definite signification. ter of a permanent home and place of abode. The
For the ordinary purposes of citizenship there are intention and actual fact of residence must concur,
rules of general, if not of universal, acceptation appli- when such residence is not in its nature temporary.
cable to it. "Citizenship," "habitancy" and "resi- There is a right of election by expressed intention,
dence" are severally words which may in the particu- only when the facts are to some extent ambiguous. ^
lar case mean precisely the same as "domicil," but- A domicil of origin is presumed to be retained until
frequently they may have other and inconsistent residence elsewhere has been shown.^ A domicil of
meanings, and while in one use of language the ex- origin, or an acquired domicil, remains until a new
pressiohs a change of domicil, of citizenship, of hab- one is acquired. A native domicil is not so easUy
itancy, of residence, are necessarily identical or syn- changed as an acquired domicil, and is more easily
onymous, in a different use of language they import lost. A man can have but one domicil at the same
different ideas. ^ time for the same purpose.^
In international law, domicil means a re,sidence at Domicil is acquired by residence and the animus
a particular place, accompanied with positive or pre- manendi, the intent to remain.
sumptive proof of intending to continue there for an A wife's domicil is that of the husband; but she
unlimited time.^ may acquire a separate one, whenever necessary or
To ascertain this domicil, it is proper to take into proper, as, for a suit in divorce,^ q. v. See also Citi-
consideration the situation, the employment, and the zen; Lex, Domicilii; Reside.
character of the individual; the trade in which he is DOMINANT. See Easement, Dominant.
engaged, the family he possesses, and the transitory
or fixed character of his business are ingredients DOMIWIOK'. Complete ownership; ab-
which may properly be weighed. ^ solute property."
Domicil is spoken of : as national, or that The right in a corporeal thing, from which
of a person's country, and opposed to domes- arises the power of disposition and of claim-
tic, or that of a subdivision of a country; as ing it from others.'
foreign, established in another state; as Proximate dominion. Obtaining pos-
session by delivery of a thing sold, which,
commercial, the place of one's trade or busi-
ness; of birth, that of one's parents; ac- 1 Mitchell V. United States, 21 Wall. 353, 3.53 (1874),
quired, vested by the law ; by choice, selected cases, Swayne, J. ; Desmare v. United States, 93 V. S.
of free will ; &?/ law, by operation of law. 609 (1876); Doyle v. Clark, 1 Flip. 637-38 (1876), cases;
Once existing, a domicil continues until another is Lindsay v. Mm-phy, 76 Va. 430 (1882); 21 Cent. Law J.
acquired; when a, change is alleged the btirden of 435-33 (18S5), cases — Solicitors Journal (London).
proof rests upon the party making the allegation. = Hallet V. Bassett, 100 Mass. 170-71 (1868), cases, Colt,
To constitute a new domicil, two things are indispen- J. ; Guier v. O'Daniel, 1 Am. Lead. Cas. 747-50, cases.
' Ennis v. Smith (Kosciusko's Case), 14 How. 483 (1853).
> Town of Salem v. Town of Lyme, 29 Conn. 79 (1860), •■Newton v. Commissioners, 100 U. S. 563 (1879),
Hinman, J. Swayne, J.
2 McDonald v. Salem Capital Flour-Mills Co., 31 F. 'Cheever v. Wilson, 9 Wall. 124 (1869); Cheely v.
R. 577 (1887). Clayton, 110 U. S. 705 (1884), cases; 8 Bishop, Mar. & D.
SLyon v. Lyon, 30 Hun, 456 (1883); Foss v. Foss, 58 475; 33 Alb. Law J. 86 (1881), cases.
N. H. 884 (1878), cases. See generally 13 Am. Law Rev. 281-79 (1879), cases;
> Lindsay v. Murphy, 76 Va. 430 (1883). 11 Cent. Law J. 421-25 (1880), cases; 1 Wall. Jr. 262; 7
s Borland «. City of Boston, 1.33 Mass. 93 (1888), Fla. 81, 152; 46 Ga. 277; 74 111. 314; 89 Ind. 177; 51 Iowa,
Loi'd, J. 79; 80 La. 314; 26 id. 338; 53 Me. 165; 87 Miss. 718; 64
' Guier v. O'Daniel, 1 Binn. *350 (1806), Rush, P. J. ; id. 310; 77 Mo. 678; 37 N. J. L. 495; 8 Wend. 148; 8
State V. Collector, 33 N. J. L. 194 (1867); Mitchell v. Paige, 534 ; 31 Barb. 476 ; 67 N. Y. 379 ; 71 Pa. 309 ; 48 Vt.
United States, 21 Wall. 353 (1874). 338.
' Livingstone ■«. Maryland Ins. Co., 7 Cranch, 548 6 See 3 Bl. Com. Ch. L
(1813), Story, J.; The "Venus, 8 Cranch, 878 (1814). ' Coles V. Perry, 7 Tex. 136 (1851), Hughes, S. J.
 377
DOMINIUM DONATION

(rithout anything else, being preceded by There must have been a transfer of property in ex-
pectation ofdeath from an existing illness.'
he title, vests the right in the thing — which
A gift of personal property, by a party who is in
s the dominion. Kemote dominion. The
peril of death, upon condition that it shall presently
itle which vests a right to a thing sold, and belong to the donee, in ease the donor shall die, but
fives a cause of action against the vendor not otherwise. There must be a delivery by the donor.
vho has not delivered the thing, i The gift will be defeated by revocation, or by recov-
Compare Demeske; Domain; Dominium. ery or escape from the impending peril. It is in no
sense a testamentary act. There may be a good do-
DOMnSTUM. L. Complete ownership nation of anything which has a physical existence and
)f property. admits of corporal or symbolical delivery. Negotiable
Dominium directum. Immediate own- instruments, and even bonds and mortgages, may he
jrship, — possession. thus transferred. 2
A donatio mortis causa must be completely exe-
Dominium utile. Beneficial owner-
cuted, precisely as is required in the case o^ a gift
ship,— enjoyment. inter vivos, subject to be devested by the happening
Dominium directum et utile. Direct and of any of the conditions subsequent, that is, upon
beneficial ownership: complete ownership actual revocation by the donor, by his surviving the
ind possession in one person. Compare apprehended peril, by his outliving the donee, or by the
occurrence of a deficiency of the assets necessary to
Droit-droit.
pay the debts of the donor. If the gift does not talce
DOMINUS. L. Lord or master ; owner. effect as a complete transfer of possession and title,
Dominus litis. The actor in a cause; legal or equitable, during the life of the donor, it is a
testamentary disposition, and good only if made and
the principal in a suit ; the client, as distin- proved as a will. . The instrument transferring a
guished from his agent or attorney.^ chose in action must be the evidence of a subsisting
Domino perit res. The thing has per- obligation and be delivered to the donee, so as to vest
ished for its owner. See further Res, Perit. him with an equitable title to the fund it represents,
Domino volente. The owner willing. and to devest the owner of all present control over it,
absolutely and irrevocably, but upon the recognized
DOMIT^. See An'bial.
conditions subsequent. A delivery which empowers,
DOMUS. L. A house ; the house. the donee to control the timd only after the death o£
Domus procerum. The house of lords. the donor, when by the instrument itself it is pi-eseutly
Abbreviated dom. proc, and D. P. payable, is testamentary in character, and not good
Domus sua euique est tutissimum as a gift. 3
Eeoent statutes malce valid a wife's death-bed do-
refugium. His own dwelling is for every
nations of personalty without her husband's assent.*
one the safest refuge : every man's house is Donatio propter nuptias. A gift in
his castle. See further House, 1. consideration of marriage. In the civil law,
DONA. See Donum.
the provision made by the husband as the
DONATE. See Donation.
counterpart of the dos or marriage portion
DONATIO. L. A giving; a gift. See
brought by the wife.
Dare; Gift. DONATION. See Donatio. A contract
Donatio inter vivos. A gift between
by which a person gratuitously dispossesses
living persons: when the maker of a gift is himself of something by transferring it to an-
not apprehending death. See further GIFT.
other to become the latter's property upon
Donatio mortis causa, or causa mortis. acceptance.^
A gift in view of death ; a death-bed disposi- > Grattan u. Appleton, 3 Story, 755, 763 (1843).
tion of personalty.
» 1 Story, Eq. §§ 606-7; 3 Pomeroy, Eq. §§ 1146-51; 2
A donation causa mortis takes place when Kent, S44.
a person in his last sickness, apprehending 3 Baslcet v. Hassel!, 107 U. S. 609-10, 614 (18S2), oases,
dissolution near, delivers or causes to be de- Matthews, J.; Same v. Same, 108 id. 267 (ISSS), 8 Biss-
306-9 (1878), cases. See also 16 Ala. 221 ; 511 Cal. 665;
Uvered to another the possession of any per- 38 Ind. 454; 54 N. H. 37; 31 Me. 439; 77 Mo. 173; 30 Hun,
sonal goods to keep in case of his decease. 6.53,635; 20 Johns. 514; 33 N. Y. 581; 23 Pa. 63; 51 id.
Such a gift is to revert to the donor, if he 340-50; 39 Vt. 634; 4 Gratt. 479; 1 Am. Law Reg. I-ll
suEvives and is not valid as against cred-
, (18.53), 'cases; 19 Cent. Law J. 233-30 (1834), cases; 3
itors.' Law Q. Rev. 4+i-.'i3 (1886); 31 Am. Law Rev. 733-63
(1887), cases; Ward v. Tiu-ner, W. & T. L. C. Eq. Vol.
1 Coles V. Perry. 7 Tex. 136 (1851), aiUe. cases.
' See 4 Hughes, 341. 1, <pt. 2, 1205-51,
Schouler, Wills, § 63, cases.
» 2 Bl. Com. 514. 6 See Fisli v. Flores, 43 Tex. 343 (1875).
 DONIS 378 DOUBLE

Donate. To' give gratuitously or without regarded with distrust.! See Conveyance,
consideration.! Fraudulent.
In the aotof Indiana o£ May 9, 1869, enabling a city DOOM. See Dome.
to aid the construction of a railroad, etc., " donation " DOOR. See House, 1. ,
means an absolute gift or grant of a thing without any
DORMANT. Sleeping : silent, unavowed,
condition or consideration.^ See Aid, 1, Municipal.
Letting the labor of convicts in consideration of undisclosed: as, a dormant partner; secret,
their being fed, clothed, etc., by the hirer, is not a not of public record: as, a dormant judg-
" donation " or gratuity.^ ment; in abeyance, suspended: as, a dor-
DONIS. See Donum. mant execution. See those substantives.
' DONOR; DONEE. 1. The giver, and DOS. L. A marriage portion; dowry.
the recipient, respectively, of personalty. French dot.
See Donatio ; Donation. In Roman law, property given a husband
3. He -who confers, and he who is invested to aid him in sustaining the burdens of the
with, a power. See.PowEK, 2. marriage relation.
3. He who gives, and he who receives, In English law, the portion bestowed upon
lands in tail, g. v. a wife at marriage ; also, the portion a widow
DONTTM. L. A gift. See Daeb; Do- is entitled to out of the estate of her de-
natio. ceased husband.
De donis. Respecting gifts — estates-tail. Dos rationalitaus. A reasonable mar-
The first chapter of the statute of Westmin-
riage portion ; common-law dower,2 q. v.
ster 3 (13 Edw. I, 1385) is called the Statute DOTAGE. See Dementia, Senile.
de donis or de donis eonditionalibns. It took DOTAL. Pertaining to dowry. Opposed,
from donees the power of alienating their extra-dotal: not part of dowry. See Dos.
estates-tail, thus introducing perpetuities.
At common law an estate-tail was known as a con- DOUBLE. 1. By two married persons:-
as, double adultery, q. v.
<iitional fee — limited to particular heirs; the condition
being that if the donee died, without leaving an heir, 3. On behalf of each of two parties : as, a
the estate reverted. Upon the birth of issue the estate double agency. See Broker.
became absolute for three purposes: the donee could 3. For the same cause of action: as, a
alien it, and thus bar his issue and the reversioner; he
could forfeit it by an act of treason; he could encum-
double arrest, q. v.; double punishment, or
satisfaction, q. v.
ber it. As soon as issue was bom the donee aliened
and immediately repurchased, thereby obtaining a 4. Twofold: as, a contingency with a
fee-simple absolute for all purposes. To keep estates double aspect, q. v.
in the hands of the great families, the statute de donis
was passed. It directed that the will of the donor 5. Upon the same subjdct-matter, twice
should be observed, and forbade alienation. It abol- over: as, a double assessment or taxation.
ished the conditional fee and made the estate descend
See Tax, 3.
per formam doni, or passed in reversion. The statute 6. Twice the original : as, double costs, q. v.
continued in force two centuries. In the reign of 7. Increased by the court, over the actual
Edw. IV, it was held * that the entail might be de- amount : as, double damages.
stroyed by a common recovery, and the issue, the
donee, and the donee's expectant, be barred, on the
8. For, by, or from two persons ; opposed
death of the tenant in tail "without issue." Fines to single : as, a double deed.
and special laws subsequently effected the same end.^ 9. Additional; upon the same property,
See fm-ther Fee, 1.
against the same risks, and for the same per-
Dona alandestina sunt semper suspi- son ; as, double insurance, q. v.
ciosa. Secret gifts are always viewed with
10. Second, duplicated : as, a double pay-
suspicion : secret transfers of property are ment.

1 Goodhue v. City of Beloit, 21 Wis. *642 (1867). 11. Twice the original or true amount: as,
' Indiana North & South E. Co. v. City of Attica, 56
a double penalty, q. v.
Irid. 486, 476 (1877); Wilkinson v. City of Peru, 61 id. 13. Containing two or more distinct causes
9 (1878). of action or defense: as, double pleading.
s Georgia Penitentiary Co. i/. Nelms, 65 Ga. 503-5 See Duplicity.
(1880).
* Taltarum's Case, YearBook, 12 Edw. IV (1473), c. 19. 'Broom, Max. 289, 890; 4 B. & C. 652; 1 M. & S. 853.
s 2 Bl. Com. 112, 360; Croxall v. Shererd, 5 Wall. ,883 2 See 2 Bl. Com. 129, 492, 616; 1 Washb. B. P. 147, 309;
(1866). 133 Mass. 375; 6 Mart., La., 460.
 DOUBT 379 DOUBT

13. Permissive and commissive : as, double " Proof beyond a reasonable doubt " is not
waste, q. v. beyond all possible or imaginary doubt, but
DOUBT.i Fluctuation of mind arising such proof as precludes every reasonable hy-
from want of evidence or knowledge ; uncer- pothesis except that which tends to support.
tainty of mind ; unsettled opinion.2 It is proof "to a moral certainty," as dis-
Equipoise of mind arising from an equality tinguished from an absolute certainty. As
of contrary reasons.' applied to a judicial trial for crime, the two
In civil cases, a doubt is to be resolved against tbe phrases are synonymous and equivalent;
party who might have furnished facts to remove it,
each has been used by eminent judges to ex-
but has neglected so to do. In charges of fraud, the
presumption of innocence will remove a doubt. In plain the other; and each signifies: Such
■criminal cases, whenever a reasonable doubt exists as proof as satisfies the judgment and con-
to the guilt of the accused he is to receive the benefit sciences of the jury as reasonable men, and
of the doubt.
applying their reason to the evidence before
Where, in a civil proceeding, proving the cause of
.action or the defense will also prove a crime com- them, that the crime charged has been com-
mitted by the adverse party, it is not necessary that mitted by the defendant, and so satisfies
the proof be of the degree required in a criminal pro- them as to leave no other reasonable conclu-
ceeding for the offense, that is, beyond a reasonable sion possible.i See Certainty, 1, Moral.
doubt. The issue should be determined in accordance Such doubt must be founded on something growing
with the preponderance of the proof.* out of the state of the testimony, which leaves a ra-
Reasonable doubt. "That state of the tional uncertainty as to guilt, and which nothing else
case, which, after the entire comparison and in the case removes. The degree of conviction of
consideration of all evidence, leaves the guilt gbould be something more than a bai'e prepon-
derance of belief ; something more than the probabil-
minds of jurors in that condition that they ity of guilt merely outweighing the probability of
cannot say they feel an abiding conviction, innocence. The mind should be able to rest reason-
to a moral certainty, of the truth of the ably satisfied of the guilt of the accused before a ver-
dict of that character is given.''
charge." 5
The expression is not easily defined. It does not A doubt founded upon a consideration of aU the
circumstances and evidence, and not a doubt resting
mean mere possible doubt; because everything relat-
ing to human affairs and depending on moral evidence upon conjecture or speculation.^
is open to some possible or imaginary doubt. . . All The jury must find the facts established to such a
the presumptions of law independent of evidence are degree of certainty as they would regard sufBcient in
in favor of innocence; and every person is presumed the important aflau-s of life. The proof need not nec-
to be innocent until proved guilty. If upon such proof essarily exclude all doubt.*
there is reasonable doubt remaining, the accused is " A doubt which a reasonable man of sound judg-
ment, without bias, prejudice, or interest, after
entitled to the benefit of it by an acquittal."
calmly, conscientiously, and deliberately weighing all
It is not sufficient to establish a probability, the testimony, would entertain as to the guilt of the
though a strong one, arising from the doc- prisoner." The guilt must be established to a reason-
trine of . chances, that the fact charged is able, not an absolute, demonstrative or mathematical,
more likely to be true than the contrary ; but certainty.*
An indefinable doubt which cannot be stated, with
the evidence must establish the truth of the
the reason upon which it rests, is not a reasonable
fact to a reasonable and moral certainty ; a doubt, within the rule that an accused is to be given
certainty that convinces and directs the un- the benefit of such doubt.'
derstanding, and satisfies the reason and Not any fanciful conjecture which an imaginative
man may conjure up, but a doubt which reasonably
judgment of those who are biund to act
conscientiously upon it. 5 108; 3 Monta.l3r, 162; 6 Nev. 340; 26 N. J. L. 615; 103
If the law, which mostly depends upon considera- U. S. 312; 120 id. 440, ^ost,— commented on.
tions of a moral nature, should require absolute 1 Commonwealth v. Costley, 118 Mass. 24 (1875), cases,
certainty, it would exclude circumstantial evidence Gray, C. J. ; cited, 120 0. S. 440, post.
altogether.' "United States v. Gleason, 1 Woolv. 137 (1867),
MiUer, J.
> F. douter: L. dubitare (q. v.), to waiver in mind. 3 United States v. Knowles, 4 Saw. 621 (1864), Field, J.
" [ Webster's Diet. ' United States v. Wright, 16 F. B. 114 (1883), Bil-
' [Bouvier's Law Diet. lings, J.
• Thoreson v. Northwestern Nat. Ins. Co., 29 Minn. s state V. Bounds, 76 Me. 125 (1884), Peters, C. J.,
107 (1882), eases.
quoting State v. Reed, 62 id. 144, 142-45 (1874). 3 Greenl.
« Commonwealth v. Webster, 5 Cush. 320 (1850), 'People V. Guidici, 100 N. Y. 510 (1685);
Shaw, C. J. Frequently cited, as in 59 Cal. 395; 60 id. Ev. § 29.
 DOUBT 380 DO WEE

flows from the evidence or the want of, evidence; ably doubtful, that is, have a reasonable doubt, of a
a doubt for which a sensible man could give a good fact. All that a jury can be expected to do is to b©
reason, based upon the evidence; such a doubt as h^ reasonably or morally certain of the fact which they
would act upon in his own concerns. 1 declare by their verdict' See also Evidence; Pbb-
It is difficult to conceive what amount of conviction pondbrancb; Proof.
would leave the mind of a juror free from a reason- Doutatftil. Where, ^t the date of an assignment,
able doubt, if it be not one which is so settled and certain choses were reported as "doubtful," it was
fixed as to control his action in the more weighty and held that the assignee could not be charged with
important matters relating to his own affairs. Out of them unless the creditors proved that they might have
the domain of the exact sciences and actual observa- been collected by due diligence."
tion there is no absolute certainty. The guilt of the
DOWER.s The interest which the law-
accused, in the majority of cases, niust necessarily
gives a widow in the realty of her deceased
be deduced from a variety of circumstances leading
to proof of the fact. Persons of speculative minds husband. Compare Dowry.
may in almost every case suggest possibilities of the The life estate, created by law, where a
truth being different from that established by the man is seised of an estate of inheritance, and
most convincing proof. Jurors are not to be led dies in the life-time of his wife.*
away by speculative notions as to such possibilities.'' In the common law, that portion of lands
" The jiu-y are not to go beyond the evidence to or tenements which the wife has for the term
hunt up doubts, nor must they entertain such doubts
of her life of the lands or tenements of her
as are merely chimerical or conjectural." To justify
acquittal, a doubt must arise from an impartial inves- husband after his decease, for the sustenance
tigation of all the evidence, and be such that, " were of himself and the nurture and education of
the same kind of doubt interposed in the graver
transactions of life, it would cause a reasonable and her ohildren.5
Tenant in dower is where the husband of a woman
prudent man to hesitate and pause." " If , afteV con- is seised of an estate of inheritance and dies; the wife
sidering all the evidence, you can say you have an
abiding conviction of the truth of the charge, you are shall then have the third part of all the lands and
satisfied beyond a reasonable doubt; . . you are tenements whereof he was seised at any time during
the coverture, to hold to herself for the term of her
not at liberty to disbelieve as jurors, if, from the evi-
dence, you believe as men." ^ natural life.^
An instruction which says that the doubt must be Dowable. Entitled to dower, subject to
"real," substantial, well-founded, arising out of the dower ; endowable : as, a dowable interest in
evidence, is not reversible.' lands, dowable lands.
As to questions relating to human affairs, a knowl-
edge of which is derived from testin^ony, it is impos- Dowager. A widow endowed; particu-
sible to have the kind of certainty created by scientific larly, the widow of a person of rank. Dow-
demonstration. The only certainty we can have is a ress. A widow entitled to dower; a tenant
moral certainty, which depends upon the confidence in dower.
placed in the integrity of witnesses, and their capac-
ity to know the truth. If, for example, facts not im- Endo-w. To assign dower to ; to become
probable are attested by numerous witnesses who are invested with rights of dower. Whence
credible, consistent, uncontradicted, and had every endowable. See Ekdow.
opportunity of knowing the truth^ a reasonable or The widow must have been the actual wife of the
moral certainty would be inspired by their testimony. party at the time of his decease. She is endowable of
In such case a doiibt would be unreasonable, imag- all lands and tenements of which her husband was
inary, or speculative, which it ought not to be. It is seised in fee-simple or fee-tail, at any time during the
not a doubt whether the party may not possibly be covertiu-e, and of which any issue she might have had
innocent in the face of strong proof of his guilt, but might by possibility have been heu". . . There was
a sincere doubt whether he has been proved ginlty, also dower by custom; as, that the wife should have
that is called "reasonable." And even where the a quarter, a half, or all of the land; dower ad ostium
testimony is contradictory, so much more credit may
be due to one side than the other, that the same result J United States v. Ouiteau, 10 F. E. 164 (Jan. 25, 1882),
will be produced. On the other hand, the opposing Cox, J. See Miles v. United States, 103 U. S. 313 (1880),
proofs may be so nearly balanced that the jury may cases; 9 Pet. *601; 18 Wall. 545; 70 Ala. 45; 37 Conn.
justly doubt on which side lies the truth. In such case 360; 67 Ga. 163; 39 111. 457; 100 id. 242; 104 id. 364; 23
the accused is entitled to the benefit of the doubt. As Ind. 170; 64 Iowa, 90; 29 Kan. 141; 1 Duv. (Ky.) 228; 9
certainty advances, doubt recedes. If one is reason- Bush, 593; 38 Mich. 482; 44 id. 230; 14 Neb. 540; 42 N.
ably certain, he cannot, at the same time, be reason- Y. 6; 4 Pa. 374; 83 id. 141^42; 3 Heisk. 28.
2 Wimbish v. Blanks, 76 Va. 365, 369 (1882).
I [United States v. Jones, .31 F. E. ?84 (188T), Speer, J. ; 2F. dpuaire; L. dotare^ to endow: doi-, to give.
ib. 718, note. 14 Kent, 35; 71 Ala. 81.
' Hopt V. Utah, ISO U. S. 439^^1 (1887), cases, Field, J. 1 Coke, Litt. 30 6, 31 a; Sutherland v. Sutherland, 69
s apies et al. v. People, 122 111. 251-52 (1887), cases. 111.485(1873); 4 Kent, 33.
4 State V. Blunt, 91 Mo. 506 (1887), cases. ' 2 Bl. Com. 129-30.
 381
DOWER DRAFT

3cclesice; when a tenant in fee-simple, at the church same realty. The estate is a continuation of the hus-
Joor (where marriages were celebrated), after affiance band's. The widow may convey it away; and it may
Dttade, endowed the wife with a certain part ot his be levied upon.
lands; dovfevexassensupatris: when a son, by e: press The right, being no part of his estate, is not affected
igreement of his father, endowed his wife with a part by proceedings in bankruptcy against him.'
of the father's possessions.' A woman who is sui juris may, by ante-nuptial
Dower ad ostium eccUsim and ex assensu patris contract, relinquish the right,"
were abolished by 3 and 4 Will. IV (1833), c. 105. Dower Writ of dower. Process to secure an
given by the law is the only kind which has e^^r ob-
" assignment" of dower.
tained in this country. . . During the life of the
husband the right is a mere expectancy or possibility.
Writ of dower unde nihil Jiabet — whereof
Not being a natural right, but being conferred by law she has nothing : complains that assignment
alone, the power that gives may increase, diminish, has nqt been made within time.s
or otherwise alter it, or even wholly take it away. See further subjects mentioned, and Husband;
Upon the death of the husband, the right of the widow Parapheonalia; Quakaktine, 1 ; Settle, 4; Table, 4.
becomes vested.' DOWRY. That which the wife gives
The law of the situs determines rights of dower.
At common law the widow has dower: in an estate in the husband on account of marriage, — a
common; in incorporeal hereditaments; in mines donation toward his maintenance and the
opened by the husband. She now has dower in wild
support of the relation.*
lands; in an equity of redemption; in some States In Louisiana, " theefCects which the wife brings the
only in what her husband dies seised of. * husband to support the expenses of marriage." Being
At common law she has no dower: in an inherit- given to him to be enjoyed during the marriage, the
ance of which her husband had no right of immediate income is his absolutely. He is to administer the
seizin; in a term of years (personalty); in an estate property. She cannot deprive him of it. Realty is
in joint- tenancy, except as widow of the survivor; inalienable during marriage, unless the contract stip-
in an estate held for another's life; in a vested re- ulates otherwise.^
mainder. Nor, generally, has she dower now: in a pre- " Dowry," " dowery," and " dower " are etymolog-
emption claim; in shares of a corporation; in an ically different forms of the same word. " Dowery "
estate held in trust by him, but otherwise as to his is obsolete. In Massachusetts, neither " dowery " nor
equitable estates; in a mortgagee's estate, till irre- " dowry " has ever meant " dower," " q. v.
deemable; in partnership lands, before the debts are DRAFT. 7 1, n. (1) A drawing, delinea-
paid ; ' in a contract to purchase which he cpnld not tion, sketch. See CoPYRiaHf.
enforce.
The right may be defeated by any claim which (2) In common speech, a bill of exchange.*
would have defeated the husband'sseisin: at common See Exchange, 2.
law, by alienage,— a rule now generally changed; by Any order for the payment of money
foreclosure of a mortgage made by him before mar-
drawn by one person upon another."
riage, or made for purchase-money after marriage: Also, money checked out of a bank by this
in some States, by sale on an execution for a debt; by
sale for taxes; by an exercise of the right of eminent
means.
domain; by dedication to a public use; not, by an as- The drawer is he who prepares the order;
signment ininsolvency or bankruptcy — as see below. the drawee, he to whom it is addressed.
The right may be baiTed: by divorce a vinculo, she Drafts, as used in the collection of debts, are not
being the delinquent; by elopement and adultery; by usually negotiable. The oflce of a draft is to collect
a jointure; by a joint conveyance duly acknowl- for the drawer, from the drawee, residing in another
edged,—the common method; by equitable estoppel;
1 Porter v. Lazeffr, 109 U. S. 86 (1883); Lazear v.
by taking what he wills her.
Dower was to be assigned or set out, by right, imme- Porter, 87 Pa. 313 (1878).
' Earth v. Lines, 118 111. 382 (1886), cases; Forwood v.
diately upon his death. Magna Charta allowed her to
Forwood, Sup. Ct. Ky. (1887), cases.
occupy his principal " mansion-house " forty days, if
on dowable lands. One mode of assigning was by 3 See generally 2 Bl. Com. 130-37; 3 id. 183, 194; 4
"common right "—by legal process; another mode, Kent, 35-72; Williams, R. P. 223-28; 1 Washb. R. P.
" against common right," rested upon her agreement. •146-262; 1 Story, Eq. §§ 024-32; 3 Pomeroy, Eq., In-
The former was by metes and bounds; the latter by dex; 1 Bouv. 504-67, cases; Mayburry v. Brien, 15 Pet.
indenture. Procedure for assignment has been called 21 (1841), cases.
" admeasurement." As against the heir the value at 4 [Cutter V. Waddingham, 22 Mo. 254 (1855): 1 Parti-
assignment is regarded; as agamst an alienee the das, 607.
value at transfer, and, according to numerous decis- 6 De Young v. Tie Young, 6 La. An. 787 (1851) ; Buard
ions, the increase from general improvement. V. De Eussy, 6 Rob. 113 (1843); Gates v. Legendre, 10 id.
Two or more widows may be endowable out of the 78 (1846).
• Johnson v. Goss, 132 Mass. 275-76 (1882).
' 2 Bl. Com. 130, 131, 133.
' Originally draught,— Webster.
SEandall v. Kreiger, 23 Wall. 147 (1874); 25 Minn. 404. 6 2 Bl. Com. 467; 39 N. Y. 100.
3 Lenow v. Fones, 4S Ark. 560-67 (1886), esses. ■ » [Wildes V. Savage, 1 Story, 30 (1839).
 DRAIN DRAW
382

place, money to which the former may be entitled, DBAM. In common parlance, implies
either on account of balances due or advances upon
that the drink has alcohol in it — something
consignments; and although they may sometimes be
used for raising money that is not the necessary -or that intoxicates.!
ordinary purpose for which they are employed.* See DRAMA. A public representation of an
Assignment, Equitable; Duplicate. uncopyrighted play by the author, for his
Overdraft. The demand against a de- own advantage, is not a dedication of the
positor in a bank after he has drawn out play to the public.
more money than his balance; also, the act A spectator may take notes for any fair purpose,
of drawing too much, and the state of the as, for comparison with other works, or for comment
as a critic. A ticket of admission is a license to wit-
account thereafter. 2 ness the play, not to reproduce it, if the spectator can
As between a banking firm and a depositor not a recollect it or stenograph it. In whatever mode a
member of the firm, an overdraft is a loan. The pay-
copy is obtained, a subsequent unauthorized repre-
ment of the latter's check when no funds stand to his
credit is an advance by the firm of its own money, for sentation, operating to deprive the author of his ex-
cliisive rights, will be enjoined." See Copyeight;
the repayment of which, with la^vf ul interest, the cus- Eevibw, 3; Theater.
tomer is liable. It is payable absolutely and in full,
without abatement or contingency, and so constitutes DRAW. 1. To take from a place of de-
a loan in ^1 its characteristics. If more than legal in- posit to
; call for and receive from a fund :
terest ispaid, the borrower loses the excess above the as, to draw money from a bank or a trust,
legal rate, and if the contract stands and is carried to draw a dividend or share.
out, the loss is absolute and certain. But the situation
changes when the person making the overdraft is a
3. To take names from the authorized re-
member of the firm which advances it.' ceptacle :as, to draw a jury.
(3) An allowance to an importer, when a 3. To write in form, prepare ; to draw up :
duty is ascertained by weight, to insure good as, to draw, or draw up, a document or writ-
weight. ing— deed, bill in equity, will, etc.
" Tare "lis allowed for the covering on the article.* 4. To produce, gain : as, for money to draw
2, V. To prepare in writing. See Draw, 3. interest.
Braftsman. In ^equity practice, a person 5. To drag (on a hurdle) to the place of ex-
who prepares pleadings; also, one who man- ecution: as, to draw a traitor, and to be
ually writes a will. drawn.3 See Treason.
DEAIN. 1, n. Any hollow space in the Draivback. A remission of money paid
ground, natural or artificial, where water is as freight, taxes, or other charges. Compare
collected and passes off; a ditch. 5 Compare Rebate. See Commerce, page 201, Act of
GUTTEB, 1887, sec. 2.
3, V. To rid land of its superfluous moist- A refunding of duties paid upon imported
ure, by deepening, straightening, or embank- merchandise which becomes an export.*
ing the natural water-courses, and supple- Dra'wbridge; draw. A contrivance by
menting them, when necessary, by artificial which a section of a bridge across a navi-
ditches." gable water is turned upward or at right
An easement to drain water through another's land angles to itself, and parallel with the direc-
may be acquired by grant or prescription.^ tion of the stream, so as to admit of the pas-
Drainage. As a matter of legal definition it can-
not be said that sewerage may not, in cases, be in- sage of vessels through the open space.' See
Bridge.
cluded in drainage; yet when the simple word "drain-
age " is used, as appurtenant to lands, the most obvious Drawee; Drawer. See Draft, 1 (3).
suggestion is drainage of water. ^ Drawing. See Copyright.
See Aqua, Currit, etc.; Meadow; Sewer.

lEvansville Nat. Bank v. Kaufmann, 93 N. T. 280 1 Lacy V. State, 83 Tpx. 228 (1869). As to dram-shop
(1888), Euger, C. J. keeper, see State v. Owen, 16 Mo. *607 (1852).
' [Abbott's Law pict.; M N. J. L. 484. ' « Tompkins v. Halleck, 133 Mass. 32, 45 (1882), cases;
s Payne v. Freer, 91 N. T. 48 (1883), Fmch, J. ; 2 Utah, Keene v. Wheatley, 9 Am. Law Reg. 33-103 (C. C, B. D.
411. Pa., 1860).
« Napier v. Barney, 6 Blatch. 192 (1863), Nelson, J. > See 4 Bl, Com. 92, 377.
6 Goldthwait v. East Bridgewater, 5 Gray, 64 (1855).] * See R. S. tit. XXXIV, Ch. 9.
'People V. Parks, 68 Cal. 639 (1881); ib. 648. 0 Hughes V. Northern Pacific B. Co., 18 F. R. 114 (1888).
'See 3 Kent, 436. , Law as to. Gates v. Northern Pacific R. Co., 64 Wis. 64
e Wetmore v. Kske, 15 E. I. 859 (1886). (1886).
 DRAYMEN DRUMMER

Droitural. Used of an action upon a

DRATME3S". See Police, 3.
Srayage. Where, to keep a wharf in repair, a toll writ of right, as distinguished from a pos-
was charged on coal taken from the wharf in vessels
sessory action, upon the fact of, or right to,
or warehoused "without drayage," it was held that possession merely.
the reference was to loaded conveyances, and included
a tramway supported by pillars resting upon the DRUGGIST. In popular acceptation,
wharf.' one who deals in medicines, or in the materi-
DRED SCOTT CASE. See Citizen; als used in the preparation of medicines — in
Slavery.
its largest signification.!
DREDGE. Originally, a net or drag for Properly, one whose occupation is to buy
taking oysters ; now, a machine for cleansing and sell drugs, without compounding or prep-
canals and rivers, — a dredger. To dredge is aration. More restricted, therefore, than
to gather or take with a dredge ; to remove " apothecary," 2 q, v.
sand, mud, etc., with a dredging machine, Drugs. Substances used in compounding
A dredge is not a " vessel." 2 medicines, in dyeing, and in chemical opera-
DRrPT-STUPF. Matters floating at tions.
random, without any discoverable owner, " Drugs and medicines," in an insurance policy, in-
and which, if cast ashore, will probably never cludes saltpeter.* Whether benzine is a drug is a
question of fact.* See Liquor; Medicine; Oil.
be reclaimed, but belong to the riparian pro- Adulteratihg drugs is a misdemeanor, in most of
the States. In some States, competency to compound
prietor.'
A right to " sea manure " is a right to appropriate drugs must be evidenced by a certificate from a board
the random drift and refuse of the ocean, but not of examiners, or from a reputable school of pharmacy.
goods washed afihore from a wrecked vessel.' The care required of a druggist is proportioned to
DRIP. See Easement. the danger involved. Actual negligence must be
DRIVER. See Livebt, Keeper ; Nijgli- shown before he can be made Uable for the conse-
GENCE. quences of a mistake.^
Where a druggist informs a customer that a prepa-
DROIT. F. A right; law abstractly ration ispoisonous, and correctly instructs him as to
considered. the quantity he may take, and the purchaser dies from
Opposed to Idi: law in the concrete sense. Equiva- an overdose taken in disregard of the du-ections, the
lent to jtis in the Roman law. See Monstbans. druggist is not liable for a failure to label the parcel
Autre droit. Another's right. En autre " poison," as required by a statute."
Nor is he liable when he has carefully compounded
droit. In another's right. Applied to an ad-
ministrator, executor, guardian, prochein a physician's prescription.'
Criminal negligence, followed by fatal results, may
ami, or other representative of another's convict him of involuntary manslaughter, g. u." See
Police, 2.
rights or interest.*
Droit civil. A private right independent DRUMMER. A commercial agent who
of citizenship. travels for a wholesale pierchant taking or-
Droit-droit. A right upon a right; a ders for goods to be shipped to retail dealers.'
double right: rights of possession and of An agent, such as is usually denominated a " drum-
mer " or " commercial traveler," who simply exhibits
property joined — necessary to a complete samples of goods kept for sale by his principal, and
title to land. A jus duplicatum."
Droit international. International law. > [Mills V. Perkins, 120 Mass. 43 6876), Ames, J.
'State V. Holmes, 28 La. An. 767 (1876): Webster.
Droit maritime. Maritime law.
Hainline ti. Commonwealth, 13 Bush, 352 (1877); 77 Mo.
Droit of admiralty. In English law, 128.
applied to a ship of the enemy taken by an » CoUms V. Farmville Ins. Co., 79 N. C. 281 (1878):
uncommissioned subject; and to a vessel Webster.
seized in a port, on the breaking out of war. <Carrigan v. Lycoming Fire Ins. Co., 53 Vt. 426
(1881).
Also spoken of as an admiralty droit.^ 'Brown v. Marshall, 47 Mich. 583 (1882), cases; 16
»Soule V. San Francisco Gas Light Co., 64 Cal. 241 Ark. 308; 33 Conn. 75; 61Ga.505; 13B.Mon.319; 15 La.
(1880). An. 448; 64 Me. 120; 20 Md. 297; 106 Mass. 143; 6 N. Y.
= The Nithsdale, 15 XTp. Can. Law J. 269 (1879). 397; 51 id. 746; L. E., 6 Exch. 1.
'Watson V. Knowles, 13 E. I. 641 (1882). « Wohlfahrt v. Beckert, 92 N. Y. 490, 494 (1883).
• See 1 Greenl. Ev. § 179. ' Bay V. Burbank, 61 Ga. 505 (1878).
» See 2 Bl. Com. 199. e Tessymond's Case, ) Lewin, 169 U828).
•See 13 Ves. 71; 3 Bos. & P. 191; 6 Wheat. 264; 8 « [Singleton v. Fritsch, 4 Lea, 96 (1879); Montana v.
Cranch, 110. Farnsworth, 5 Monta, 303 (1885); 34 Ark. 557.
 DRUNKENNESS 384 DRUNKENNESS

tates orders for suuh goods afterward to be delivered quent repetition has acquired an involuntary tendency
by the principal to the purchasers, payment therefor to become intoxicated.^
to be made to the principal, is neither a peddler nor a The proceeding to determine whether a person is an
merchant; nor will a single sale and delivery of goods habitual drunkard, and the legal consequences, are
by such agent out of his samples or other lot of goods substantially the same as in a case of lunacy, q. v.
constitute him a peddler or merchant. ' See fm-ther 1. In civil law. A contract made by one too drunk
Commerce, page 199, col. 2; Peddlek. to understand the consequence of his act is voidable,
In common language a drummer sells goods, — by except when for necessaries or for goods kept after he
sample, by procuring orders; and the dealer sells by becomes sober. "
him as his agent. While in such cases the sale is If, without fault -of his, he is unable to restore the
usually consummated by a delivery at the vendor's consideration, provision for its repayment may be
place of business to a common carrier, and, perhaps, made in the finaLdecree.^
in another State, a legislature may say that the acts Before a court of equity will grant relief the drunk-
done by the drummer shall of themselves constitute a enness must have been so excessive as to utterly de-
sale; as, in a statute forbidding sales of liquors by prive the complainant of the use of his reason. In
samples or by soliciting orders without first taking out that condition there can be no serious, deliberate con-
a license.'^
Article 4665, of the Revised Statutes of Texas, is Total drunkenness in the maker of a note, known to
unconstitutional as to a citizen of another State sell- sent.*
the payee, avoids it as to him. But this defense can-
ing goods by sample, and having no goods in the not be set up against the claim of an innocent holder
State. 3 for value. . A drunken man is responsible to an
DRUNKENNESS. The result of ex- innocent person for an act done while drunk: he
cessive drinking of intoxicating liquors; voluntarily produces his disability.^
ebriety, inebriation, intoxication; the state 2. > In criminal law. " A drunkard," says Lord
Coke, " who is voluntarius doEmon, hath no privilege
■which follows from taking into the body, by thereby; but what hurt or ill soever he doeth, his
swallowing or drinking, excessive quantities drunkenness doth aggravate it." ^
of such liquors.* No other rule would be safe for society.'
Dmnk. So far under the influence of At common law, as a rule, voluntary intoxication
affords no excuse, justification, or extenuation of a
intoxicating liquor that the passions are crime committed under its influence. .But when a
visibly affected or the judgment impaired. ^ statute establishing different degrees of murder re-
Drunkard. One whose habit is to get quires deliberate premeditation in order to constitute
drunk, whose ebriety has become habitual. murder in the first degree, the question whether the
accused is in such a state of mind, by reason of drunk-
"Drunkard," "common drunkard" and enness or otherwise, as to be capable of deliberate
" habitual drunkard," mean the same.^ premeditation, necessarily becomes a material subject
While " common " imports frequency, the law does for consideration by the jury.**
not specify the number of instances in a given time.'' See Intemperate; Intoxication; Insanity; Liquor;
It is impossible to lay down a v\jle as to when a man Option, Local; Prohibition, 2.
shall be deemed an " habitual drtmkard." Occasional
acts of drunkenness do not make him such: it is not ' Murphy v. People, 90 111. 60 (1878), Per Curiam. See
necessary that he be continually intoxicated. He may also Mahone v. Mahone, 19 Cal. 629 (1873); Wheeler v.
become intoxicated and yet remain sober for weeks Wheeler, 53 Iowa, 512 (1880) ; Walton v. Walton, 34 Kan.
together. The test is. Has he a fixed habit of drunken- 198 (1885), cases; Richards v. Richards, 19 Bradw. 468
ness? Is he habituated to intemperance when oppor- (1886), cases.
tunity offers? ' 2 Johnson v. Harmon, 94 U. S. 379-82 (1876), cases; 60
" Habitual " imports formed or acquired by habit; Iowa, 82; g Kent, 452; 1 Pars. Contr. 383.
customary; usual; accustomed to intemperance when- s Thackrah v. Haas, 119 U. S. 499, 502 (1886) : 1 Wash.,
ever opportunity offers.^ Va., 164; 04 N. T. 200.
An " habitual drunkard " is a person who by fre- * 1 Story, Eq. §§ 230-31; 2 Pomeroy, Eq. § 949.
« State Bank v. McCoy, 69 Pa. 807-9 (1871); McSparran
1 City of Kansas v. Collins, 34 Ean. 436-37 (1885), cit- V. Neeley, 91 id. 84 (1879); Gore v. Gibson, 13 M. & W.
ing twenty-five cases. *626 (1845); Bush v. Breinig, 113 Pa. 316 (1S86): 26 Am.
2 State V. Ascher, 54 Conn. 306 (1886). Law Reg. 40-41 (1687), cases; 1 Ames, Cas. Bills &N.
s Exp. Stockton, 33 F. E. 96 (1887). 558; 18 Cent. Law J. 65-68 (1884), cases; 2 Kent, 451.
< [Commonwealth v. Whitney, 11 Cush. 479 (1853), = 1 Coke, Inst. 247; 4 Bl. Com. 26; 2 Steph. Hist. Cr.
Merrick, J. Law Eng. 165.
' State V. Pierce, 65 Iowa, 85 (1886) ; 64 id. 88 (1884). 'United States v. Cornell, 3 Mas. Ill (1820); United
' Commonwealth v. Whitney, 5 Gray, 86 (1855), States V. MoGlue, 1 Curtis, IS (1831).
Thomis, J. e Hopt V. People, 104 U. S. 6.S4-35 (1881), cases. Gray, J.
' Commonwealth v. McNamee, 113 Mass. 286 (1873). See also Jones v. Commonwealth, 75 Pa. 406 (1874);
sLudwick V. Commonwealth, 18 Pa. 174 (1851), Tidwell V. State, 70 Ala. 46 (1881); Honesty u Common-
Eogers, J. wealth, 81Ta. 301 (1886); 24 Am. Law Reg. 507-11 (1876),
» Trigg V. State, 49 Tex. 676 (1878), Roberts, C. J. cases; 27 id. 159-61 (1879), cases; 23 Am. Jur. 290; Bish.
DRY 385 DUE

DRY. See Exchange, 3; Rent; Trust, 1. time or place for payment is mentioned, before a suit
DRY-DOCK. to recover the amount can be maintained, a demand is
See Dock, 2 (1).
necessary. 1
DRY GOODS. See Perishable; Sam-
JE.
In Colorado an ordhiary due-bill has the character
of a promissory note, whether it contains a promise
DUBITARE.i L. To doubt. to pay, or words of negotiability, or notj" See I 0 U.
Dubitante. Doubting. Overdue; past-due. Time for paying
Affixed to the name ot a judge, in a reported gone by, yet not paid; matured and unpaid.
se, denotes that he questions the soundness of the
cision. " Overdue " sometimes refers to a right of action
against a drawer or indorser: a bill is not then overdue
Dubitantur. It is doubted. until presented and payment refused. Sometimes it
Indicates that a proposition as sound law is open is used in considering whether an indorser has been
question. Compare Qu^asRE. released by a failure of the holder to present the bill
DUCES. See Scbpcena, Duces, etc. for payment, and to give the indorser notice of its dis-
honor within time. Sometimes it is applied to a bill
DUE.^ 1. Owed, or owing; payable; which has come into the hands of an indorser so long
smandable. See Duty.
after its issue as to charge him with notice of its dis-
Applied to debts, expresses the mere state honor, and thus subject it in his hands to the defenses
: indebtment — is equivalent to "owed" which the drawer had against it in the hands of the
■ " owing; " and the fact that the debt has assignor.'
" Past-due interest " means interest which has ma-
jconie payable.' tured, and is collectible on demand. . . Money
A debt payable now or in the future is a "debt due." may be " owing " which is not "due." A man owes
Debt " itself implies this. But the popular accepta- the money represented by his note; but the money is
ra of *' due "' is, payable in present time.* not due until the note matures.*
When not qualified by a time clause, means that
A note overdue, payable to bearer, passes, by de-
e money or property is due at the time of executing livery, the legal title subject to all equities between
e instrument. •
the original parties.* Indorsing such a note is equiv-
May import indebtedness without reference to the
alent to making a new note payable at sight."
ly of payment, or that that day has passed.^ Underdue. Not yet payable ; unmatured.
May be used not in the sense of "payable," but as In the absence of proof, the law presumes that a
iporting an existing allegation.^
In its largest sense, covers liabilities matured and note taken is underdue.'
imatured." See Negotiate, 2 ; Payment.
A debt which has yet to originate cannot properly 3. Required by circumstances; proper; ex-
! said to be a debt which is to become due.^
ecuted by law ; timely : as, due care or dili-
Due-bill. A written acknowledgment
gence, qq. V.
lat a sum of money ia due.
3. Regular ; appropriate ; usual ; according
Not payable to order, nor transferable by indorse- to legal form, in legal manner, conformably
ent.i" be payable in specific property.
May When no to law: as, due course or process of law;
due form, notice, service, return, qq. v.
'. L. |§ 488-93; 1 Ben. & H. Ld. Cr. Cas. 113-24. Med- The ',' due execution " of a writing relates to the
manner and form of execution by a person competent
il Jurisprudence of, 21 Am. Law Rev, 955-62 (1887),
ses. Condoning, 26 Cent. Law J. 123 (1888), cases. under the law of the place.*
^Literally, to waver in. mind, be of two minds: duo, Duly. In due manner ; regularly ; legally.
o,— MttUer, Science of Lang. 360. In the proper way, regularly, according
' F. deu; devoir: L. debere, to owe. to law:' as, duly acknowledged, notified,
■ United States v. State Bank, 6 Pet. *36 (1833), Story,
istice. served, sworn..
'Leggett V. Bank of Sing Sing, 25 Barb. 332 (1857); 1 Winder v. Walsh, 3 Col. 548 (1877).
me V. Same, 24 N. Y. 286 (1862); People v. Arguello, n Lee V. Balcom, 9 Col. 218 (1886), Beck, C. J.
Cal. 525 (1869); Collins v. Janey, 3 Leigh, •391 (1831); » La Due ti. First Nat. Bank of Kasson, 31 Minn. 38
Moak, 708. (1883), Mitchell, J.
' Lee V. Balcom, 9 Col. 218 (1886), Beck, C. J. * Coquard v. Bank of Kansas City, 12 Mo. Ap. 265
'Scudder v. Coryell, 10 N. J. L. 345 (1829), Ewing,
J.; Allen v. Patterson, 7 N. Y. 480 (1852); Bowen v. » See Nat. Bank of Washington v. Texas, 20 Wall. 88
Jcum, 17 Wis. 190 (1863).
(1873).
'Sand-Blast Co. v. Parsons, 54 Conn. 313 (1886). "Colt V. Barnard, 18 Pick. 261 (1836); Morgan v.
' People V. Vail, 6 Abb. N. C. 210 (1879). United States, 113 U. S. 499-500 (1886), cases.
I Thomas v. (Jibbons, 61 Iowa, 50 (1883). ' New Orleans, &c. Co. v. Montgomery, 95 U. S. 18
3ee also 19 Pick. 381; 31 Mich. 215; 14 Barb. 11; 28 (1877).
IX. 59; Story, BiUs, § 233, Prom. Notes, § 440. » Cox V. Northwestern Stage Co., 1 Idaho, 376 (1871).
'See Byles, Bills, 'n, n. (t). ' Gibson v. People, 5 Hun, 543 (1875).
(25)
 DUEL DUPLICITY

" Duly and legally appointed," in an tndiottnent, DUNGEON". An. underground apart-
may be sufScient without stating by whom appointed.'
ment in a prison, for the confinement of re-
" Duly assigned " may require a transfer in writ-
fractory Convicts.
ing."
" Duly eonrened " means regularly convened.' DUPLICATE.i The double of anything ;
" Duly presented " means presented according to an original repeated ; a document the same
the custonl of merchants.^ as another; a transcript equivalent to the
" Duly recorded " means recorded in compliance first or original writing ; a counterpart : as,
with the requirement of law."
a duplicate bond, certificate, check or draft,
4. Just, lawful, legal: as, due rights. ^
Undue. Improper, wrongful, unlawful: land-warrant, receipt, will. See Original, 2.
as, undue concealment, influence, qq. v. A document essentially the same as an-
DUEL.f In ancient law, a flght between
two persons for the trial of the truth in a A document
other.2 the same in all respects as some
doubtful case.8 other document, from .which it is indistin-
Actually fighting with weapons in pursu- guishable inits essence and operation.'
"Duplicate," written across the face of a draft
ance of an agreement.' given to replace a lost draft of the same tenor, imports
If either participant is killed, the dttense is murder that the draft is to take the place of the original, that
in the survivor, seconds, and spectators; otherwise,
the offense is a misdemeanor,**' no new liabllify is created by it.'
Each duplicate writing is complete evidence of the
Under the constitutions of several States, as of Ken- intention of the parties. The deliberate destruction of
tucky, Pennsylvania, and Wisconsin, participation in
one, as, of a duplicate will, creates a presumption that
a duel disqualifies from holding office.^'
the other was also to be destroyed.^ See Evidence,
See Ai'I'hay; Ghallenoe, 1; Combat. Secondary.
DULY. See Due, 3. Duplicate United States bonds will be issued, when
DUM. l! While. Compare Durante. the originals'are defaced or destroyed.^
Dum bene se gesserit. While he be- DUPLICITY.' Double pleading. Al-
haves well. leging two or more distinct grounds of com-
Dum fervet opus. While the affair is plaint or defense wlien one would be as ef-
warm : while the transaction is fresh. fectual as both or all.8
A party's own admission, whenever made, may be Because it produces useless prolixity, and tends to
given in evidence against him; but the declaration of confusion, and to the multiplication of issues, regarded
his agent binds him only when made during the con- as a fault in all pleading.'
tinuance ofthe agency in regard to a transaction then Predicated of a plea which contains more than one
depending et dum fervet opus.^^ See AnMissioN, 2. matter. To avoid a multitude of issues in one dis-
Dum sola. While single, or unmarried. pute every plea is to be confined to a single point.
DUMB. See Idiot; Will, 2; Witness. "Duplicity begets confusion," that is, defeats the ob-
A person who is dumb, uneducated in the use of ject of all pleading — a single issue upon the same
signs, and merely able to assent or dissent to direct
questions by a nod or shake of the head, may be a In criminal
matter. 10 practice, joining two or more
legal witness, but the Jury should be instructed that, distinct offenses in one count, i'
because it was not possible to cross-examine him, the Not applicable to the union of several fact@ in one
weight of bis testimony is reduced. *' matter, nor to matters of explanation, nor where but
one of the defenses is valid.
' Commonwealth v. Chase, 127 Mass. 13 (1879).
"Eagland v. Wood, 71 Ala. 149 (1881); ib. 335; 139 *L. duplicafus, two-fold: duplicare, to double.
Mass. 16. "T = [Toms V. Cuming, 49 E. C. L. 94 (1845).
8 People V. Walker, 3 Bai-b. 305 (1858). ' Lewis V. Eoberts, 103 E. C. L. ''29 (1861), Erie, C. J.
< gchofleld V. Bayard, 3 Wend. 491 (1833). * Benton v. Martin, 40 N. Y. 347 (1869).
» Dunning v. Coleman, 27 La. An. 48 (187^). '1 Whart.Ev. §74; 1 Greenl. Ev. §5S8. ,
"Eyerson v. Boorman, 8 N. J. E. 705 (1819). « R. S. § 3702.
' It. duello; L. duellum^ a fight between two — duo. ^ F. duplicitS: L. duplicitatem^ doubleness.
8 [Jacob's Law Diet. ^ [Gould, Plead. 389. Approved, — Sprouse v. Com-
« [Herriott v. State, 1 McMul. *130 (S. Car., 1841). monwealth, infra.
"4 Bl. Com. 199, 145; 2 Bish. Cr. L. §| 310-15; 1 Arch. ' [Sprouse u Commonwealth, 81 Va. 376 (1886),
Lacy, J.
Cr. Pr. 926-39; 1 Euss. Cr. 443; 2 Chitty, Cr. L. 728, 848;
3 Steph. Hist. Cr. L.' Eng. 99-104. '"S Bl. Com. 308, 311; 1 Chitty, Plead. 226; 10 Me. 63;
" See Commonwealth v. Jones, 10 Bush, 725 (1874). 21 N. J. L. 344; 2 Johns. 465; 7 Cow. 452; 10 Vt. 353; 11
i»l Greenl. Ev. § 113; Long v. Colton, 116 Mass. 415 F. E. 238.
(1875); 66 Ga. 367. " Tucker V. State, 6 Tex. Ap. 253 (1879); State v. Gor-
" Quinn v. Holbert, 55 Vt. 228 (1882). ham, 55 N. H. 163 (1875); 1 Bish. Cr. Proc. S 432.
 DURANTE DURESS

May exist in any part of the pleadinRs. At common ful authority, or for a just cause but for an
law was a fatal defect, reached by special demurrer unlawful purpose, even though under proper
;
but not now so regarded: in the discretion of the
court, tolerated for the fm-therance of justice.' process, it may be construed as " duress of
See DiscLAiMEB, 4; Pleadino; Repugnant imprisonment;" and if the person arrested
DURANTE. L. During, while. Com- executes a contract or pays money for his
pare Dun. release, he may avoid the contract as one
Durante absentia. During absence. procured by duress, and recover the money
See Administratoe. in an action for money had and received.
Durante bene placito. During good " Duress per minas," as defined at; com-
pleasure. See Behavior. mon law, is where a party enters into a
Durante minor e SBtate. During minor- contract for fear of loss of life, loss of limb,
ity. See Administrator. of mayhem, or imprisonment. Many modern
Durante viduitate. During widow- decisions of the courts of England still re-
hood. strict
limits. the operation of the rule within those
Durante vita. During life.
Those decisions deny that contracts procured by
DUKESS.2 In its more extended sense,
menace of a mere battery to the person, or of trespass
that degree of constraint or danger, either to lands, or loss of goods, can be avoided on that ac-
actually inflicted or threatened and impend- count, and the reason assigned is that such threats are
ing, which is sufficient, in severity or in ap- not of a nature to overcome the mind and will of a
prehension, toovercome the mind and will prudent man, because if such an injury is inflicted
adequate redress may be obtained in a suit at law.
of a person of ordinary firmness. 3
Cases to the same effect may be found in the re-
Actual violence is not necessary to consti- ports of decisions m this coimtry, and some of our
tute duress, even at common law, as under- text-writers have adopted the rule that it is only
stood in the parent country, because consent where the threats uttered excite fear of death, or of
is the very essence of a contract, and, if there great bodily harm or unlawful Imprisonment, that a
contract, so procured, can be avoided, because, as such
be compulsion, there is no actual consent, courts and authors say, the per.son threatened with
and moral compulsion, such as that produced slight injury to the person, or with loss of property,
by threats to take life or to inflict great bod- ought to have sufficient resolution to resist such a
ily harm, as well as that produced by im- threat, and to rely upon the law for his remedy.
On the other hand there are many Ameriean.decis-
prisoimient, is everywhere regarded as suffi- ions of high authority which adopt the more liberal
cient, in law, to destroy free agency, without rule that a contract procured by threats of battery to
which there can be no contract, because, in the person, or of the destruction of property, may be
that state of the case, there is no consent. avoided on the ground of duress, because in any such
case there is nothing hut the form of a contract.
Text- writers divide the subject into duress But all cases agree thata contract procured through
per minas and diiress of imprisonment. fear of loss of life, produced by the threats of the
This classification was uniformly adopted in other party, wants the essential element of consent,
the early history of the common law, and is and may be avoided for duress. *
generally preserved in the decisions of the "Diu-ess of imprisonment " is a compulsion by an
illegal restraint of liberty. This will avoid an extorted
English courts. bond. But if a man is lawfully imprisoned, and to
Where there is an arrest for an improper procure his discharge, or on any other fair account,
purpose, without just cause, or where there seals a bond or a deed, this is not by such duress."
is an arrest for a just cause but without law- In the law of homicide, in selfrdefense, "duress of
imprisonment '^ is where a man actually loses his lib-
> See 8 Ark. 378; 8 Ind. 96; 33 Mass. 104; 32 Mo. 185; erty. "Duress per minas " is where the hardship is
S N. H. 413. only threatened and impending, and is for fear of loss
of life, for fear of mayhem, or loss of limb. And this
2 Ihi'-ress. Mid. Eng. dui-esse; F. dureace: L. duritia,
larshness; durus, severe. fear must be upon sufficient reason — before a man
» Brown v. Pierce, 7 Wall. 314-16 (1868), cases, Clif- may kill in self-defense. A fear of battery is no du-
ord, J. Quoted or cited, Baker v, Morton, 13 id. 157 ress; neither is fear of one's house being burned, or of
1870); French v. Shoemaker, 14 id. a33 (1871); United one's goods being taken away and destro.ved; because
for these a man may have satisfaction in damages,
States V. Huckabee, 16 id. 431-33 (1873). See also 26
lib. Law J. 424-36 (1882), cases; 1 Chitty, Contr., 11
im. ed., 269-73; 2 Greenl. Ev. §§ 301-8; 1 Whart. Contr. 1 Brown v. Kerce, ante.
"ref. ir ; 2 Whart. Ev. §§ 031, 1099; 1 Story, Eq. § 239; 2 ' 1 Bl. Com. 136; Heckman v. Swartz, 64 Wis. 55-68
'omeroy, Eq. § 950, cases. (1885); 59 Pa. 444.
 DURESS 388 DUTY

but no suitable atonement can be made for loss of life

'is ordinarily one of fact. It must be shown that the
or limb.i threats constrained the will of the prornisor.'
"Duress of goods" is by unlawfully seizing or See Coercion; Consent; Inkccence; Payment, Com-
withholding property, or threatening to do so, till some pulsory.
demand be acceded to. DURING. See Dum; Durante; Fob.
The payment of money by the owner of goods in DUTCH. See Auction.
order to redeem them from the hands of a person who
unlawfully withholds them and demands such money, DUTY. 1. What one ought or ought
may be treated as a compulsory payment, so that the not to do ; legal obligation. See Due.
amount is recoverable, as having been obtained by " Duty " and " right " are correlative terms.
oppressive means. The owner of the goods may have Such rights as are due from the citizen are
so urgent occasion for them that the ordinary action
would afford imperfect redress.* called "civil duties." All social duties are
Duress exists where one, by the unlawf nl act of an- of a relative nature — due from one man to
other, is induced to make a contract or to perform
some act under circumstances which deprive him \>f another.
When a2 right is invaded a duty is violated. A
the exercise of free will. . . " Duress of the per- "public duty" is one owing to the community; a
son" isby imprisonment, by threats, or by an exhi- "private duty " is an obligation to be observed toward
bition of force which apparently cannot be resisted. one or more individuals. In an action for non-fulfill-
. . " Duress of goods " may exist when one is com- ment, itis essential to show : the duty, a breach thereof,
pelled to submit to an illegal exactjon in order to and the resulting damage. When the law " casts
obtain them from one who has them in possession but a duty " upon one, he is answerable for any damage
refuses to surrender them unless the exaction is sub- consequent upon non-performance. ^
mitted to.^ Laws designed to enforce moral and social duties
To constitute coercion or duress sufiElcient to make stand on the best and broadest basis. Though it is not
a payment involuntary, there must be some actual or every such duty the neglect of which is the ground of
threatened exercise of power possessed, or believed to an action. For there are what are called in the civil
be possessed, by the party exacting or receiving the law duties of ''imperfect obligation," for the enforc-
payment over the person or property of another, ing of which no action lies.*
from which the latter has no other means of immedi- See Assumpsit; Care; Charge; Demand; Knowl-
ate relief than by making the payment.* edge, 1; Neoligenoe; Obligation, 1; Power, 1; Pre-
Excessive charges, involuntarily paid to railroad sumption; Right; Undertaking.
companies refusing to cany or deliver goods, have 3. An indirect taji, imposed on the impor-
been recovered on the ground of distress.*
Mere vexation and annoyance do not constitute tation, exportation, or consumption of goods.^
such duress as will justify setting aside a deed, unless A " custom " is a duty imposed upon imports or
insanity ensued and existed at the time of execution."
Threats of lawful prosecution, resorted to to over-
Duties.
exports.® Things due and recoverable by
come the will through intimidation, will avoid a con- law. The term, in its widest signification, is
tract thereby obtained.' hardly less comprehensive than "taxes;" in
Regard is had to age, sex, and condition. If the
its most restricted meaning, is applied to
threats are such as tend to deprive a particular person
of his freedom of will he will be relieved from liabil- '■ customs," and in that sense is nearly the
ity, althouglx the same threats would not produce a synonym of " imposts." 6
like effect on a firm and courageous man.^ Whence dutiable, and non-dutiable.
Where there is no arrest made nor force used, Ad valorem duty. A sum ascertained
simply threats uttered, the question as to the duress
by which a promise is alleged to have been obtained
by a percentage on the value of the article —
not necessarily the actual value. Specific
' 1 Bl. Com. 131; 4 id. 30; United States v. Haskell, 4 duty. A fixed sum payable upon an article
Wash. 406 (1823). '
= Chitty,iContr. 62S. See also .White v. Heylman, 34 by name.'
Pa. 144(1859); Miller 7). Miller, 68 id. 493(1871); Motzti. 1 Dunham v. Griswold, 100 N. Y. 226 (1885), cases;
Mitchell, 91 id. 117 (1879); Block r. United States, 8 Ct. Fisher v. Bishop, 36 Hun, 114 (1885), cases. As a defense
CI. 461 (1872); 35 Tex. 77; 59 id. 478; 101 U. S. 470. in civil actions, see 9 Va. Law J. 705-17 (1885), cases.
2 1 Bl. Com. 123. To whom due, 21 Cent. Law J. 382
" '• Eadich
Hackley v.v.Hutchins,
Headley, 9545 U.Mich.
S. 313574(1877),
(1881),cases.
Cooley, J.
Field, (1885), cases.
Justice. ' See Broom, Com. Law, 109, 661 c, 655, 670-80.
., 6 See Garton v. Bristol, &c. K. Co., 28 L. J. Exch. 169 * Pasley v. Freeman, 3 T. R. 63 (1789), Kenyon, C. J.
(1859). ' Cooley; Taxation, 3.
8 Brower v. CoUander, 105 111. 100 (1882). ' Tomlins, Law Diet. ; Pacific Ins. Co. v. Soule, 7 Wall.
THaynes v. Rudd, 30 Hun, 339 (1883); 24 Pa. 347; 31 445 (1868); Hylton v. United States, 3 Dall. *175 (1796);
id. 73. 1 Story, Const. § 952.
'Jordan v. Elliott, 12 W^ N. C. 56, 59 (1883). See gen- 'See United States v. aement, 1 Crabbe, 512 (1843);
erally 34 Cent. Law J. 75 (1887), cases. , 18 F. R. 394.
 DWELLING 389
DYING

Laws regulating the payment of duties are tor prac- pass a house, the buildings belonging to it,
tical application to commercial operations, and to be its curtilage, garden, orchard, and the close
understood in a commercial sense. It is to be pre-
sumed that Congress intended them to be so under- on which it is built, with reasonable limita-
stood.' tions according to the circumstances of the
The commercial will prevail over the ordinary case.i See Grant. 2; Curtilage.
meaning of words, where the intent is apparent." Includes such buildings and attachments as are for
If an article is found not enumerated in the tariflE the ordinary purposes of a house."
laws, the first inquiry is whether it bears a similitude
in material, quality, texture, or the use to which it
3. In a statute against pulling down dwell-
may be applied, to any article enumerated as charge- ing-houses toalter a highway, doefs not in-
able with duty. If it does, and the similitude is Sub- clude abilliard saloon. 3
stantial, itis to be deemed the same. Though not 3. In a homestead exemption law, may not
sperafically enumerated, it is provided for under the embrace a building adapted to purposes of
article it most resembles. If nothing is found to
business, as, a saloon, a store, or a public
which it bears the requisite similitude, a duty will be
assessed at the highest rates chargeable on any of its
component materials. Any other construction would 4. In the New York statute defining arson,
leave the law open to evasion.^ See Cutlery. hall.*
includes any edifice usually occupied by per-
The common-law right of action to recover duties
sons lodging therein at night; not, a ware-
illegally collect^ is taken away by the statutory rem-
edy. The time for commencing the action is within house, barn, shed, or other out-house, un-
ninety days after an adverse decision by the secretary less part of a dwelling-house.^ See Arson.
of the treasury on appeal, but if he fails to render a 5. In the law of burglary, includes what-
decision within ninet.y days the importer may begin ever is within the curtilage, even if 'not in-
suit at once, or await the decision and sue within
closed with the dwelling, if used with it for
ninety days thereafter.* i
The plaintiff, within thirty days after notice of the domestic purposes, — all buildings the forcible
appearance of the defendant, must serve a bill of the brealiing of which for felonious purposes
particulars of his demand, giving, among other items, during the hours of rest would naturally
the date of the appeal, and of the decision of the sec- cause alarm, distress and danger.*
retary. This requirement malces it unnecessary to Must be a habitation of man, and usually occupied
state the same facts in the declaration.'
No recovery can be had for duties paid after the by Not
some such
person
habitation lodging isin anit at night. '^
underground cellar, used
importer has received the goods, although paid under
for storing ice and beer, with no internal door com-
protest." municating with the living-rooms in the upper stories,
When a reliquidation of duties talres place its date and not under the control of any occupant of the
is the final liquidation for the purpose of protest.
A departmental regulation which has been acqui- building.'
Whether a building is a dwelling-house depends
esced in for many years is not to be disregarded with-
upon the use made of it.^ See Burglary.
out the most urgent reasons.' Dwelling-place. Some permanent place
See Appraise; Commerce; Customs; Drawback;
Entry,!!, 8; Excise; Impost; Negligence; Nosoitur; of abode or residence, with intention to re-
Payment, Involuntary; Protest, 1 ; Rbifunds; Smuggle.
DWELLING. A person has his dwell- See main there. lO Residence; Police, 3; Utbre, Sic
House;
ing where he resides permanently, or from utere, etc.
DYEING. See Process, 3.
which he has no present intention to remove.
DYING. See Death; Declaration, 1,
See Abode ; Domicil ; Reside.
Dying.
Dwelling-house. 1. A description of
realty, as a dwelling-house, in a deed, may I Marston v. Stickney, 68 N. H. 610 (l679), cases.
1 United States v. Casks of Sugar, 8 Pet. 279 (1884); 16 " Chase v. Hamilton Ins. Co,, 20 N. Y. 65 (1859).
Op. Att-Gen. 369. ' State V. Troth, 34 N. J. L. 377 (1871); 36 id. 424.
"Newman v. Arthur, 109 U. S. 137 (1883); Arthur v. < Re Lammer. 14 Bankr. tleg. 460 (1876).
'See2N.Y. Rev. St. 667, §§9,10; 20 Conn. 246; 33 Me.
Morrison, 96 id. 110 (1877), cases; Worthington v. Ab-
bott, 124 id. 434 (1888). 30; 6 Mich. 142; 13 Gratt 763.
'Arthur v. Fox, 103 U. S. 128 (1883), Waite, C. J.; • Stearns v. Vincent, 50 Mich. 219 (1883), Cooley, J.
R. S. § 2499; Hen-man v. Arthur, 127 id. 363 (1888). ' Scott V. State, 62 Miss. 782 (1886).
* Arnson v. Murphy, 109 U. S. 238 (1883); Snyder v. ' State V. Clark, 89 Mo. 429-30 (1886).
Marks, ib. 193-4 (1883), cases. » Davis V. State, 38 Ohio St. 506 (1882). See also 2
'Beard v. Porter, 124 U. S. 437 (1888), cases. Cranch, C. C. 21 : 68 N. C. 207; 72 id. 698; 8 S. & R. 199;
•Porter i>. Beard, 124 U. S. 439 (1888), cases; E. S. 16 Gratt. 643; 13 Bost. L. R. 157.
i» Jefferson v. Washington, 19 Me. 300 (1841) ;, 2 id. 411 ;
S3011.
' Robertson v. Downing, 127 U. S. 613 (1888), cases. 49 N. H. 663.
 E 390 EARNINGS

E. EARD'IIVGS. Money or property gained

by labor or services: as, the earnings of a
E. 1. As an abbreviation, ordinarily de- wife, minor, servant, insolvent debtor, cor-
notes Easter (tierm), eastern (district), ecclesi-
poration.
In a statute of exemptions, the gains of the debtor
astical, Edward (king), English, equity, or
eicbequer. derived from his services or labor without the aid of
3. In e. g., an abbreviation of the first
May embrace more than " wages, "q.v. May apply-
capital.*
word of the Latin phrase, exempli gratia, for to compensation for services rendered which involve,
(in favor of, for the sake of) an example, for more than mere labor, and may include expendi-
instance. tures;'* or, compensation for expenditures or mate-
rials furnished, together vrith work done or services
3. The form of the Latin preposition, ex,
rendered; but will not include rents, which require no
from, before a consonant sound. See Ex, 1.
personal service by the lessor.*
E contra. From the opposite side; on G-ross earnings; net earnings. As a
the contrary. general proposition, the net earnings of a
E converso. On the other hand; con- railroad company are the excess of the gross
versely.
earnings over the expenditures defrayed in
EACH. Every one of the two or more producing them, aside from, and exclusive
composing the whole. of, the expenditure of capital laid out in
roreigu express companies being exempted, in
Kentucky, from local taxation by paying a State tax, constructing and equipping the works them-
a provision in the charter o£ a city authorizing it to selves. < See Mortgage, Railroad.
tax "each'* express company was held not to apply ." Net earnings " is often the equivalent of surplus
to foreign companies.i or net profits; and may referto the surplus for a limr
A, a testator, gave C and T " two thousand ddllars ited period.'
each." The legatees were brother and sister, not re- " Gross earnings " and " receipts," in the lease of a
lated to the testator. C died before A. fleZd, that the railroad, will be taken to mean the same thing, unless
legacy was of two thousand dollars to each legatee other parts of the agreement require a different con-
individually, and not of four thousand dollars to a struction." See Tax, 2.
class, and that the legacy to C lapsed." Separate earnings. Refers to the own-
Compare A, 4; All; Ant; Every. ership in married women of tbe proceeds of
EAGIiE. See Coin. their own labor or services.
EAB. See Mark, 1 (2); Mayhem. At common law these belonged to the husband.'
EARL. See Sheriff. In some States, upon petition filed, any married
woman may have a decree of court investing her with
EARNEST.' A thing delivered to a the absolute right of property in her earnings, wholly
vendor in assurance of a serious purpose to free from all claims of her husband or of his creditors,
complete the contract of sale. the same as if she were a single woman.
Giving earnest is one of the alternatives prescribed Any married woman in Peimsj^Ivania, with or with-
by the original Statute of Frauds (g. v.) for the validity out cause, may avail herself of the act of 1872; while,
of a contract for a sale of personalty of the value of to entitle her to become a feme-sole trader, she must
£10 or more.* bring herself within the act of 1718 or the act of 1865.
If the purchaser accepts and pays for the goods the The act of 1872, by securing her the earnings of her
earnest- money counts as part of the price; if not, the business, impliedly authorizes her to engage in busi-
amount is forfeited. ness with consequent liability for her contracts." See
The idea was taken from the civil law. A deposit Feme-sole, Trader; Hcsband.
with a third person, to be forfeited if the buyer does
1 Brown v. Hebard, 20 Wis. 330 (1866).
not complete Mis purchase, is not earnest.*
Whatever may have been thought by old writers ^ Jenks V. Dyer, 102 Mass. 236 (1869); Somers •». Keli-
her, 115 id. 167 (1874): Statute, 1865, c. 43, § 2.
respecting the effect, in the transmission of property,
" Kendall v. Kingsley, 120 Mass. 95 (1876).
of giving and receiving earnest money, it is now con-
« Union Pacific R Co. v. United States, 99 U. S. 420
sidered of no importance, or of the smallest impor-
(1878), Bradley, J. See also St. John v. Erie E. Co., 22
tance."
Wall. 148 (1874); 10 Blatch. 271; 108 U. S.'S79; 30 Minn.
312.
'Adams Express Co. v. Lexington, 83 Ky. 660 (1886).
a Claflin v. Tilton, 141 Mass. 343 (1886). ' Cotting V. New York & New England K. Co., 54
Conn. 168 (1886).
' Mid. Bngr ernes, a pledge.
4 See 2 Bl. Com. 448; 2 Kent, 389. "Cincinnati, &c. E. Co. v. Indiana, &c. E. Co., 44
'Howe V. Hayward, 108 Mass. 55 (1871), cases: Mass. Ohio St. 315-16 (1886).
(Jen. Stat. c. 105, § 5; Benj. Sales, 2 ed., 260. ' Carter v. Worthington, 82 Ala. 336 (1886).
« The Elgee Cotton Cases, 82 Wall. 195 (1874), Strong, " Bovard v. Kettering, 101 Pa. 183 (1883). Gomrare
Justice. Act June 3, 1887: P. L. 332.
 EARTH EASEMENT
391

Surplus earnings. An amount owned injurious to the land; as, a right of way.
(by a company) over and above capital and Negative easement. Such right as is, in
actual liabilities. 1 its exercise, consequentially injurious; as,
EABTH. Soil of aU kinds, including forbidding a thing to be done, like that of
gravel, clay, loam, and the like, in distinc- obstructing llght.l
tion from the firm rock.2 Apparent or continuous easement.
" Hard pan " is a " hard stratum ot earth." Earth, Depends upon some artificial structure upon,
then, includes hard-pan." See Alluvion; Land; Min- or natural formation of, the servient tene-
eral.
ment, obvious and permanent, which consti-
EASEMENT.^ A service or convenience
tutes the easement or is the means of enjoy-
which one neighbor has of another by char-
ing it ; as, the bed of a running stream, an
ter or prescription, without profit.'* overhanging roof. Non-apparent or non-
The right whicli one man has to use the
continuous easement. Has no means
land of another for a specific purpose.*
specially constructed or appropriated to its
A liberty, privilege, or advantage in land,
without profit, distinct from an ownership enjoyment, and is enjoyed at intervals, leav-
ing between these intervals no visible sign
in the soil.*
Easements include all those privileges which the, of its existence; as, a right of way.^ See
public, or the owner of neighboring lands or tene- Continuous, Non-continuous.
ments, has in the lands of another, and by which the Appendant or appurtenant easement.
" servient owner," upon whom the burden of the priv- When the grant of the easement is made
ilege is imposed, is obliged to suffer, or not to do some- with reference to other land whereon, or in
thing, on his own land, for the advantage of the public,
connection wherewith, it is to be used or
or for the *' dominant owner " to whom the privilege
belongs.^ enjoyed.
The essential qualities of easements are: they are Such easement is appendant or appurtenant to the
incorporeal; they are imposed upon corporeal prop- dominant estate, and passes with it as an incident.
erty; they confer no right to participation in profits A right in or upon the land of ^another, to be used
arising from such property; there must be two dis- by the grantee generally, and not in connection with
tinct tenements, the dominant, to which the right or dependent upon any other land or estate, is a right
belongs, and the servient, upon which the obligation in gross, — in bulk. It belongs to, and dies with, the
rests.®
Easements restrict the enjoyment of natural rights Easement of necessity. A privilege
in land, light, air, and water. Attaching to land as person.'
without which the dominant owner could
incidents or appurtenances, are, among others: the
not carry on his trade or enjoy some other
rights of pasture, of way, of taking water, wood, min-
erals or other product of the soil, of receiving air, property right. Easement of convenience.
light, or heat, of receiving or discharging water, of Enables such owner to prosecute his business
support to buildings, of carrying on an offensive trade. or to enjoy some right in real property with
An easement is not a tenancy.' increase of facilities or comfort.
Affirmative easement. Such right in
Private easement. Exists in favor of
another's land as authorizes acts actually one or more individuals. Public easement.
Exists in favor of the people generally.
1 People V. Commissioners, 76 N. T. 74 (1879). See 34 Easements originate in grant, express or implied.
N. J. L. 482.
They do not change with the persons. Disturbances
s Dickinson v. Poughkeepsie, 75 N. Y. 76 (1878) ; Web- may be remedied by action on the case^ by injunction,
ster.
or by abatement. They are extinguished by release,
'F. aise, ease, relief: assistance, accommodation,
convenience. merger, necessity, end of prescription, cesser of use
« Post V. Pearsall, 22 Wend. ,438 (1889): Jacob. for twenty years, renunciation or abandonment shown
' Jackson v. Trullinger, 9 Oreg. 397 (1881), Lord, C. J. by When
decisivean acts.^
easement has once been acquired, mere
« Jamaica Pond Aqueduct Coi-poration v. Chandler, non-user will not defeat the right; there must be an
9 Allen, 165 (1864), Bigelow, C. J. See also 19 Ark. 33;
74 Ul. 185; 24 Iowa, 61; 40 id. 456; 24 Mich, 284; 51 N. H. ■ 2 Washb. R. P. 26, 56-60, 82-85, 4;3-66; 70 N. Y. 448.
330; 70, N. Y. 421; 54 Pa. 369; 44 Tex. 267; 27 Gratt. 87; 2 Fetters v. Humphreys, 18 N. J. B. 262 (1867), Za-
109 TJ. S. 265. briskie, Ch.
' 3 Kent, 419. \ 3 Salem Capital Flour MiUs Co. v. Stayton Water-
5 Pierce v. Keatdf, 70 N. Y. 421 (1877). See Parsons Ditch & Canal Co., 33 F. E. 154 (1887); Washb. Easem.
V. Johnson, 68 id. 65-66 (1877); 70 id. 447-48; Tardy v. 9, cases.
Creasy, 81 Va. 556-57 (1886), cases. ' See Steere v. Tiffany, 13 R. I. 570 (1882); Sanderliu
' Swift V. Cioodrich, 70 Cal. 106 (1886). V. Baxter, 76 Va. 305 (1882); Washb., Easements.
 EA,STER 393 EFFECTS

adverse use by the servient estate for a period suffi- the moral, or the physical powers and facul-
cient to create a prescriptive riglit.^ ties, but in its broadest and best sense relates
See Air; License, 1; Light; NtriSAJiCE; Profits, A
prendre; Servitude, 2; Support, 2; Use, 1, Non-user; to them all.i
Wall; Water; Way. An education acquired through the medium of the
EASTER. See Term, 4. English lani^uage is an "English education." It is the
language employed as the medium of instruction that
EATING-HOUSE. Compare Restau- gives distinctive character to the education, whether
rant; Saloon. English or German, and not the branches studied. .
Any place where food or refreshments of any kind, A *' common school education " begins with the rudi-
not including spirits, wine, ale, beer, or any other malt ments of an education, whatever else it may be made
liquors, are provided for casual visitors, and sold for to embrace. 2
consumption therein.'' Parents owe to their children the duty of giving
A market-stall where meals are furnished to the them an education suitable to their station in life. Yet
public is not an eating-house.' the municipal laws of most countries do not constrain
EAVES-DROPPING. The nuisance of parents to bestow such education. ^
hanging about the dwelling-house of another, " All persons ' having children, and all the
Guardians or Trustees of Orphans, shall cause such to
hearing tattle, and repeating it to the dis- be instructed in reading and writing; under a penalty
turbance of the neighborhood. * of five pounds for each child having capacity in body
Eaves-droppers. Such as listen under asd understanding." *
See Charity, 2; School.
walls or windows, or the eaves of a house,
-EE. See Or, 1.
to hearken after discourse, and thereupon to
frame slanderous and mischievous tales.^ EFFACE. See Alter, 2 ; Cancel.
Eaves-dropping is a common nuisance, indictable at EFFECT. 1. That which is produced;
common law, and punishable by fine and by having to result of a cause. See Cause, 1.
fm-nish sureties for good behavior.^ 3. Letters-patent will not be granted for a
Consists in privily listening, not in looking or peep- mere effect ; they may be for a new mode or
ing. It is a good defense that the act was authorized
by the husband of the prosecutrix.* application of machinery to produce an effect.
EBB AND FLOW. See Navigable. See Patent, 2.
ECCENTRICITY. . See Insanity. 3. The manner in which a contract, instru-
ECCLESIASTICAL. See Church; ment, or law will operate, as ascertained by
Corporation. construction. See Tenok.
ECLECTIC. See Medicine. " Take effect," "be in force," and "go into opera-
tion "are interchangeable.''
ECONOMITES. See Community, 3.
4. To prosecute with effect : with due dili-
ECONOMY, PUBLIC. See Police, 2. gence to a finality. See further Prosecute.
EDITOR. Formerly included not only Effected. ^A condition in a policy of insurance
the person y.?ho wrote or selected articles for that "every person insuring in this company nrnst
publication, but also the person who pub- give notice . . of any other insurance effected
lished the paper and put it into circulation. in his behalf on said property," applies to all other
insurance, whether taken out before or after the exe-
Now, the business of editor is separated from cution of the policy in question."
that of publisher and printer.' EFFECTS. A word of extensive import,
See Liberty, 1, Of the press; Newspaper.
frequently used in wills as a synonym for
EDUCATION. Includes proper moral,
personal estate. In Hogan v., Jackson, 1
as well as intellectual and physical, instruc-
Cowp. 304 (1774), Lord Mansfield considered
tion.*
May be particularly directed to the mental, it synonymous with " worldly substance,"
which means whatever can be turned to
1 Curran v. Louisville, 83 Ky. 632 (1SS6), cases. value, and therefore that " real and personal
2 Revenue Act, 18 July, 1866, § 9: 14 St. L. 118. effects " means all a man's property.
= State V. Hall, 73 N. C. 254 (1875).
-
estate V. Pennington, 3 Head, 300 (Tenn., 1859): 2 ' Mount Hermon Boys' School v. Gill, 145 Mass. 146
Bish. Or. L. 274. (1887), Knowlton, J.
'4 Bl. Com. 168; 1 Hawk. P. C. 132; 1 Euss. Cr. 302. » Powell V. Board of Education, 97 IlL 375 (1881).
» 1 Bl. Com. 450.
' Commonwealth v. Lovett, 4 Clark, 5 (Pa., 1831); 8
Haz, Pa. Reg. 305. < Laws of Prov. of Penn., Ch. CXU (1682): Linn, 142.
' Pennoyer v. Neff, 95 U. S. 721 (1877), Field, J. s Maize u State, 4 Ind. 348 (1863).
'Eouhs V. Backer, 6 Heisk. 400 (1871); Tenn. Code, » Warwick v. Monmouth County Mut. Fire Ins. Co.,
44 N. J. L.
§2521.
 EFFIGY 393 EJECTMENT

In admiralty, includes Bhips.^ Ejectione firmse. For ejectment of

I In a will, may include any personalty whatever,
and even realty. ^
"farm," q, v. A remedy where the lessee of
Construed to include land where it can be collected a term of years was deprived of possession.
The original of the later and modem action of
from the will that such was the testator's intention.^
Used indefinitely in a will, but, in connection with ejectment,* q. v.
something particular and certain, is limited by associ- EJECTMENT. An action to recover
ation to other things of a like kind. From the subject- possession of realty, with damages for the
matter, intention of something else may be implied; wrongful detention. See Ejeotio.
and that may be larger or less.* Originally devised for a lessee ousted of his term of
EPFIG-Y. See Libel, 5. years, and who, having but a chattel interest, could
EFFIiUX.5 In a lease, the ending of the not support a real action for recovery of possession.
contract period in the regular course of In effect, the action was for the trespass; and the
remedy was in damages for the dispossession. Later,
events, as distinct from an earlier termina- it was decided that the lessee could also recover his
tion by a subsequent agreement or by some term. This brought the action into general use; and
by the formalities of lease, entry, and ouster (which
unexpected event. ' ' Effluxion " was for-
merly in use. see below), the action was converted into a method of
EGRESS. See Ingress., trying, collaterally, the title of the lessor. Then, as
the title was never formally and directly in issue,, but
EI rNCUMBIT. See Peobatio. the trespass for the expulsion only, the verdict was
EIGHT-HOUR RULE. See Service, 1. not pleadable in bar of another trespass. Thus it came
EIGN, EIGNE, or EISNE. Eldest, or that a verdict and judgment were conclusive only as
first-born. A corruption of the French ain4, regarded personalty. Afterward, when the fictions
were abolished, the idea of a difference as between
aisni.
realty and personalty lingered in many States, a single
Bastaxd eigne. A child born before the verdict and judgment was not considered conclusive,
marriage of its parents. Opposed, mulier and provision was made by statute for a* second trial.
Where no such provision exists a former action may
puisne: a legitimate child. ^
EITHER. One or the other of several
be Ina bar.3
the original action the plaintiff had to prove a
things; but, sometimes, ono and the other.' lease from the person shown to have title, an entry
See Or, 3. under the lease, and an^ouster by some third person.
May be used, as in a statute, in the sense of The modified action was brought by a fictitious person
"any."' as lessee against another fictitious person (the casual
EJECT. To put out or off ; to dispossess, ejector) alleged to have committed the ouster. Service
evict, oust. See Ejectio. was made upon the tenant in possession, with notice
from the casual ejector to appear and defend. If the
Casual ejector. He who ousted the right- tenant failed to do this, judgment was given by de-
ful lessee by making a formal entry in order fault and the claimant put in possession, if he did
appear, he was allowed to defend only by entering
to test the right to possession in court. ^ See
Ejectment. into the "consent rule," by which he confessed the
fictitious lease, entry, and ouster to have been made,
EJECTIO.'" L. Dispossession; ouster.
leaving only the title in question. See Doe.
Hjectione custodisB. By ejectment of These fictions were abolished in England by the
ward. A writ by which a guardian recovered common-law procedure act of 1852, and further
acts of 1873 and
possession of the land or person of his ward. changes were made by the judicature
1875. In some States the action has never been
adopted; in others it has been materially modified by
'The Alpena, 7 F. B. 362 (1881). Arthur v. Morgan, statute ; in a few it still exists in its original form. The
112 U. S. 499 (1884). See also 1 Hill (S. C), 155; 15 Ves.
ancient form is also employed in the circuit courts of
507; 15 M. & W. 450; 16 East, 222.
16 the United States sitting in States where the old form
2 Smyth V. Smyth, 36 Moak, 477 (1878): 8 C. D. 561 ;
Moak, 710. was observed when those courts were estabhshed.'
Ejectment is the remedy to recover a corporeal
= Page V. Forest, 89 N. C. 449 (1883), cases. ment — an estate in fee-simple, fee-tail, for
heredita
'Ennis v. Smith (Kosciusko's Will), 14 How. 421 life, or for years; not, for rent, a right of way, or
Com.
(1852), cases, Wayne, J. See also 2 Shars. Bl. dower. The plaintiff, at the time of the institution of
284, n.; 3 Cranoh, C. C. 203; 3 Minn. 389; 30 id. 195; 37 the suit, must have a right of entry and of possession
Tex. 19.
1 3 Bl. Com. 199.
'L. e/{cxyfluere, to flow out, go by.
«See2Bl. Com. 2i8. 2 Sturdy V. Jackaway. 4 Wall. 175-76 (1866), cases,
' Ohidester v. Springfield, &c. R. Co., 59 lU. 89 (1871). Grier, J.; Miles v. Caldwell, 2 id. 40 (1864); Blanchard
100
8 Lafoy V. Campbell, 42 N. J. E. 37 (1886). V. Brown, 3 id. 248 (1865); Dickerson v. Colgrove,
"3B1. Com. 201.
U S. 563 (1879); 3 Bl. Com. 199.
i« From ejicere, to put out: jacere, throw, cast. s See 3 Bl. Com. 198-207; 3 Steph. Com. 392-94, 617-20.
 EJECTOR 394 ELECT

under legal title. In tlie Federal courts of law, the Election. A choosing, or selecting ; also,
strict legal title prevails. The defendant must be in
the condition of having been choslen or se-
actual possession, and notice be given to the terre-
tenant. The action is maintainable by a joint tenant
lected; choice, selection.
or a tenant in common against a co-tenant who has Primer election. First choice.
dispossessed him. Recovery is upon the strength of In England, in cases of partition, unless otherwise
the plaintiff's title, not upon the weakness of the de- agreed, the eldest sister (coparcener) has the first
fendant's,! with proof of injury equivalent to a dis- choice of purparts.^
possession. The plea of " not guilty " raises the 1. Selection of a person to fill an ofiBlce in
general issue. The judgment is, that the plaintiff re-
cover his term, or the possession of the land, and (1) a private corporation,— whence corporate
damages, which, as a rule^ are nominaL^ See Posses- election ; or (2) in a department of govern-
sion, Adverse; Peofits, 1, Mesne. ment — national, State, county, municipal, —
, Equitable ejectment. Ejectment at whence popular election. 2
law, upon an equitable title ; in effect, a bill In its constitutional sense, a selection by
in, equity for the specific performance of a the popular voice of a district, county, town,
contract or obligation to convey land. Or city, or by an organized body, in contra-
In Pennsylvania, whenever a court of equity will distinction to appointment by some single
presume a trust to 'have arisen, compel its execution, person or officer.
or enforce an article of agreement, the courts of law
Voting and, taking the votes of citizens for
by this means will administer the same relief.^
Ejectment bill. Generally, a bill in equity will members to represent them in the general
not lie if it is in substance and effect an ejectment bill, assembly or other public stations.^
and if the relief it seelis can be obtained by an action In either of the senses noted, particularly in the
in ejectment.* case of a popular election, whether a general or a
EJECTOR. See Eject. special or local election, choice of persons is effected
EJUSDEM GENERIS. L. Of the through the instrumentality of a board or officers of
election, within an election district or precinct, or
same kind or nature ; of the same class. place of known and fixed boundaries, on an appointed
In the construction of statutes, contracts, and other election day and between certain election hours, with
instruments, where an enumeration of specific things a prescribed mode for certifying the election returns,
is followed by a general word or phrase, the latter is and all in conformity with the election laws; followed,
held to refer to things of the same kind as those speci- too, in cases, by an election contest between opposing
fied.« See General, 6; Inferior, 3; Other; Vbhiclb. candidates.*
ELDEST. The eldest son is the first-born The doctrine at the foundation of popular govern-
son — the primo-genitus. ment is, that in elections the will of the majority
controls; mere irregularities or informalities in the
The words "shall become the eldest son " of a per-
son living at the date of a will cannot, without an ex- conduct of an election are impotent to thwart the ex-
planatory context, be extended beyond the life-time pressed will of the majority.'
of that person; they are connected with the heirship All fraudulent acts affecting the purity and safety
of, and right of succession to, a living man." of elections are offenses at common law.^
ELECT.7 To select, choose; also, se- But Illegal votes will make void an election only
when they affect the result.'
lected, chosen, elected: as, a judge-elect, A statute which, in addition to the requirements of
the President-elect.
the constitution, provides that '" no person hereafter
1 Nelson v. Triplett, 81 Va. 237 (1885), cases; Butrick naturalized shall be entitled to be registered as a voter
V. Tilton, 141 Mass. 96 (1886); Mitchell v. Lines, 36 Kan. within thirty days therefrom," is unconstitutional.'
383 (1887).
1 Littleton, § 243.
" See Gibson v. Chouteau, 13 Wall. 102 (1871); Foster
V. Mora, 98 U. S. 428' (1878); Equator Co. v. Hall, 106 = Police Commissioners v. Louisville, 3 Bush, 602
id. 87 (1882); Holland v. Challen, 110 id. 19 (1883); 112 (1868), William, J.
id. 533; 116 id. 692; 18 Ha. 52; 56 Vt. 669; 76 Va. 288; ' Commonwealth v. Kirk, 4 B. Mon. 2 (1813), Ewing,
107 U. S. 392; Bouvier. C. J. See also 54 Ala. 205; 13 Cai. 144; 23 Mich. 341; 5
Nev. 121.
3 Deitzer v. Mishler, .37 Fa. 86 (1860); 7 id. 158; 14 id.
145, S49; 22 id. 225; 87 id. 286; 1 T. & H. § 36; 2 id. § 1838. ■■See 2 Dill. 219; 41 Pa. 403; 30 Conn. 691 ; 44 K H. 643.
4 Killian v. Ebbinghaus, 110 U. S. 568, 572 (18&3). « Prohibitory-Amendment Cases, 24 Kan. 720 (1881).
» See United States v. Buffalo Park, 16 Blatch. 190 See Commonwealth v. Smith, 132 Mass. 295 (1882).
(1879); Eeiche v. Smythe, 13 Wall. 165 (1871); Narra- " Commonwealth v. Hbxey, 16 Mass. 385(1820); Com-
more v. Clark, 63 N. H. 167 (1884), cases; Lynchburg v. monwealth V.McHale, 97 Pa. 408 (1881); 91 Pa. 503.
Norfolk, &c. E. Co., 80 Va. 248-50 (1885), cases; 54 ' Tarbox v. Sughrue, 36 Kan. 230, 232 (1887), cases.
Conn. 407; 8 Pick. 14; 9 Mete. 258; 122 Mass. B75. On conducting elections, see 24 Cent. Law J. 487 (1887),
cases.
= Bathurst v. Errington, 2 Ap. Cas. 698 (1877); 20
Moak, 203, 213. SKinneen v. Wells, 14^ Mass. 497 (1887), cases. See
' L. eligere, to pick out. See Eugible. also State v. Conner, Sup. Ct. Neb. (1687), cases.
 ELECT 395
ELECT

Elective. (1) Pertaining to the right, in of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and
the individual, to choose agents of govern- the votes shall then be counted ; —
ment :as, the elective franchise, q. v. The person having the greatest number of votes for
(2) Bestowed by virtue of a popular elec- President, shall be the President, if such number be a
tion, as opposed to being invested with by- majority of the whole number of Electoi-s appointed;
appointment : as, the elective system — for and if no person have such majority, then from the
filling judicial offices. See JuDlciiiEY. persons haying the highest numbers not exceeding
three on the list of those voted for as President, the
Elector. (1) One who has the right of a House of Representatives shall choose immediately,
choice or vote ; more particularly, one who by ballot, the President. But in choosing the Presi-
has the right of casting a vote for a public dent, the votes shall be taken by states, the represen-
officer. 1 tation from each state having one vote; a quorum for
this purpose shall consist of a member or members
(2) One who, having a right to vote, actu- from two-thirds of the states, and a majority of all the
ally votes. 2 states shall be necessary to a choice. And if the House
Electoral. Pertaining to or consisting of of Representatives shall not choose a President when-
ever the right of choice shall devolve upon them, be-
electors: as, the " electoral college," on which fore the fourth day of March next following, then the
the formal legal choice of President and Vice- Vice-President shall act as President, as in the case of
President is made finally to depend. the death or other constitutional disability of the Pres-
PresidenUal electors. Members of the ident. The person having the greatest number of
electoral college. votes as Vice-President, shall be the Vice-President, if
such number be a majority of the whole number of
"Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, Electors appointed, and if no person have a majority,
equal to the whole Number of Senators and Eepre- then from the two highest numbers on the list, the
sentatives to which the State may be entitled in the Senate shall choose the Vice-President; a quorum for
Congress: but no Senator or Representative, or Person the purpose shall consist of two-thirds of the whole
holding an Office of Trust or Profit vmder the United number of Senators, and a majority of the whole num-
States, shall be appointed an Elector." ' ber shall be necessary to a choice. But no person con-
stitutionally ineligible to the office of President shall
" The Congress may determine the Time of choos-
ing the Electors, and the Day on which they shall give be eligible to that of Vice-President of the United
their Votes; which Day shall be the same throughout
The 1act of Congress approved February 3, 1887 (24
States.
the United States." '
St. L. 373), to fix the day for the meeting of the
" The Electors shall meet in their respective states,
and vote by ballot for President and Vice-President, electors of President and Vice-President, and to regu-
one of whom, at least, shall not be an inhabitant of late the coimting of the votes, and tlie decision of
the same state with themselves; they shall name in questions arising thereon, provides as follows:
their ballots the person voted for as President, and in That the electors of each State shall meet and give
distinct ballots the person voted for as Vice-President, their votes on the second Monday in January next fol-
and they shall make distinct lists of all persons voted lowing their appointment, at such place in each State
for as President, and of all persons voted for as Vice- as the legislature of such State shall direct.
President, and of the number of votes for each, which Sec. 3. That if any State shall have provided, by
lists they shall sign and certify, and transmit sealed to laws enacted prior to the day fixed for the appoint-
ment of the electors, for its final determination of any
the seat of the government of the United States, di-
rected to the President of the Senate; — The President controversy or contest concerning the appointment of
all or any of the electors of such State, by judicial or
1 See Beardstown v. Virginia, 76 HI. 39 (1875). other methods or procedures, and such determination
"See Taylor v. Taylor, 10 Minn. 123 (1865); State ex shall have been made at least six days before the time
rel. V. Tattle, 33 Wis. 49 (1881). fixed for the meetjig of the electors, such determina-
3 Constitution, Art. II, sec. 1, ol. 3. See 8 Bancroft, tion made pursuant to such law so existing on said
Const. 165-85. day, and made at least six days prior to the said time
The electoral vote of the respective States is (1888) as of meeting of the electors, shall be conclusive, and
follows: Alabama, 10; Arkansas, 7; California, 8; shall govern in the counting of the electoral votes as
Colorado, 8; Connecticut, 6; Delaware, 3; Florida, 4; provided in the OoiLstitution, and as hereinafter regu-
Georgia, 12; Illinois, 22; Indiana, 15; Iowa, 13; Kansas, lated, so far as the ascertainment of the electors ap-
9; Kentucky, 13; Louisiana, 8; Maine, 6; Maryland, 8;
pointed by such State is concerned.
Massachusetts, 14; Michigan, 13; Minnesota, 7; Missis- Sec. 3. That it shall be the duty of the executive of
sippi, 9; Missouri, 16; Nebraska, 5; Nevada, 3; New each State, as soon as practicable after the conclusion
Hampshire, 4; New Jersey, 9; New York, 36; North of the appointment of electors in such State, by the
Carolina, 11; Ohio, 23; Oregon, 3; Pennsylvania, 30 final ascertainment under and in pursuance of the
Ehode Island, 4; South Carolina, 9; Tennessee, 12 laws of such State providing tor such ascertainment.
Texas, 13; Vermont, 4; Virginia, 12; West Virginia, 6
Wisconsin, 11. Total, 401. ' Constitution, Amend. Art. XII. Ratified Sept. 35,
* Constitution, Art. II, sec. 1, cl. 3. 1805.
 ELECT 396 ELECT

to communicate, imder the seal of the State, to the ■ tion shall be made in writing, and shall state clearly
secretary of state of the United States,' a certificate of and concisely, and without argument, the ground
such ascertainment of the electors appointed, setting thereof, and shall be signed by at least one Senator
forth the names of such electors and the canvass or and one member of the House of Representatives be-
other ascertainment under the laws of such State of fore the same shall be received. When all objections
the number of votes given or cast for each person for so made to any vote or paper,f rom a State shall have
whose appointment any and all votes have been given been received and read, the Senate shall thereupon
or cast ; and it shall also thereupon be the duty of the withdraw, and such objections shall be submitted to
executive of each State to deliver to the electors of the Senate for its decision; and the speaker of the
such State, on or before the day on which they are re- House of Representatives shall, in like manner, sub-
quired by the preceding section to meet, the same cer- mit such objections to the House of Representatives
tificate, intriplicate, under the seal of the State; and for its decision ; and no electoral vote or votes from
such certificate shall be inclosed and transmitted by any State which shall have been regularly given by
the electors at the same time and in the same manner electors whose appointment has been lawfully certi-
as is provided by law for transmitting by such electors fied to according to section three of this act from
to the seat of government the lists of all persons voted which but one return has been received shall be re-
for as President and of all persons voted for as Vice- jected, but the two Houses concurrently may reject
President; and section one hundred and thirty-six of the vote or votes when they agree that such vote or
the Revised Statutes is hereby repealed ; and if there votes have not been so regularly given by electors
shall have been any final determination in a State of a whose appointment has been so certified. If more than
controversy or contest as provided for in section two one return or paper purporting to be a return from a
of this act, it shall be the duty of the executive of such State shall have been received by the president of the
State, as soon as practicable after such determination, Senate, those votes, and those only, shall be cotmted
to communicate, under the seal of the State, to the which shall have been regularly given by the electors
secretary of state of the United States, a certificate of who are shown by the determination mentioned in
such determination, in form and manner as the same section two Of this act to have been appointed, if the
shall have been made ; and the secretary of state of determination in said section provided for shall have
the United States, as soon as practicable after the been made, or by such successors or substitutes, in
receipt at the state department of each of the cer- case of a vacancy in the board of electors so ascer-
tificates hereinbefore directed to be transmitted to tained, as have been appointed to fill such vacancy in
the secretary of state, shall publish, in such public the mode provided by the laws of the State ; but in
newspaper as he shall designate, such certificates in case there shall arise the question which of two or
full; and at the first meeting of Congress thereafter more of such State authorities determining what elect-
he shall transmit to the two Houses of Congress ors have been appointed, as mentioned in section
copies in full of each and every such certificate so re- two of this act, is the lawful tribunal of such State,
ceived theretofore at the state department. the votes regularly given of those electors, and those
Sec. 4. That Congress shall be in session on the sec- only, of such State shall he counted whose title as
ond Wednesday in February succeeding every meeting ■ electors the two Houses, acting separately, shall con-
of the elecrf;ors. The Senate and House of Representa- currently decide is supported by the decision of such
tives shall meet in the hall of the House of Representa- State so authorized by its laws ; and in such case of
tives at the hour of one o'clock in the afternoon on that more than one return or paper purporting to be a re-
day, and the president of the Senate shall be- their pre turn from a State, if there shall have been no such
siding officer. Two tellers shall be previously appointed determination of the question in the State aforesaid,
on the part of the Senate and two on the part of the then those votes, and those only, shall be coimted
House of Representatives, to whom shall be handed, which the two Houses shall concurrently decide were
as they are opened by the president of the Senate, cast by lawful electors appointed in accordance with
all the certificates and papers purporting to be cer- the laws of the State, unless the two Houses, acting
tificates ofthe electoral votes, which certificates and separately, shall concurrently decide such votes not to
papers shall be opened, presented, and acted upon in be the lawful votes of the legally appointed electors of
the alphabetical order of the States, beginning with such State. But if the two Houses shall disagree in
the letter A; and said tellers, having then read the respect of the counting of such votes, then, and in that
same in the presence and hearing of the two Houses, case, the votes of the electors whose appointment
shall make a list of the votes as they shall appear shall have been certified by the executive of the State,
from the said certificates ; and the votes having been under the seal thereof, shall be counted. When the
ascertained and counted in the manner and accord- two Houses have voted, they shalLimmediately again
ing to the rules in this act provided, the result of the meet, and the presiding officer shall then announce
same shall be delivered to the president of the Sen- the decision of the question submitted. No votes
ate, who shall thereupon announce the state of the or papers from any other State shall be acted upon
vote, which annoimcement shall be deemed a suffi- until the objections previously made to the votes
cient declaration of the persons, if any, elected Presi- or papers from any State shall have been finally dis-
dent and Vice-President of the United States, and,
together with a list of the votes, be entered on the Sec, posed5.of. That while the two Houses shall be in meet-
journals of the two Houses. Upon such reading of ing as provided in this act the president of the Senate
any such certificate or paper, the president of the shall have power to preserve order: and no debate
Senate shall call for objections, if any. Every objec- shall be allowed and no'question shall be put by the
 397
ELECT ELIGIBLE

presiding officer except to either House on a motion A very common example is the choice a widow makes
to withdraw. between dower and a testamentary provision.
Sec, 6. That when the two Houses separate to de- A person who is entitled to any benefit under a will
cide upon an objection that may have beeh made to or other instrument, must, if he claims that benefit,
the counting of any electoral vote or votes from any abandon every right or interest the assertion of which
State, or other question arising in the matter, each would defeat, even partially, any of the provisions of
Senator and Representative may speak to such objec- the instrument. But in no case is one to be put to an
tion or question five minutes, and not more than once; election unless it is clear that the provisions of the in-
but after such debate shall have lasted two hours it sti'ument in sonie degree would be defeated by the as-
shall be the duty of the presiding ofiicer of each House sertion of his other rights.*
to put the main question without further debate. The doctrine rests upon the equitable ground that
Sec. V. That at such joint meeting of the two Houses no man can be permitted to claim inconsistent rights
seats shall be provided as follows: For the president with regard to the same subject, and that any one who
asserts an interest under an instrument is bound to
of the Senate, the speaker's chair; for the speaker,
immediately upon his left; the Senators, in the body give full effect, as far as he can, to that instrument.
of the hall upon the right of the presiding officer; for Or, as it is sometimes expressed, he who accepts a
the Representatives, in the body of the hall not pro- benefit under a deed or will must adopt the contents
vided for the Senators; for the tellers, secretary of of the whole instrument, conforming to all its provis-
the Senate, and clerk of the House of Representa- ions and relinquishing every right inconsistent with it.'^
tives, at the clerk's desk; for the other officers of the An election may be implied as well as expressed.
two Houses, in front of the clerk's desk and upon each Whether there has been an election must be deter-
side of the speaker's platform. Such joint meeting mined upon the circumstances of the particular case,
shall not be dissolved until the count of electoral votes rather than upon general principles. It may be in-
shall be completed and the result declared; and no re- ferred from the conduct of the party —his acts, his
cess shall be taken unless a question shall have arisen omissions, and his mode of dealing with the property.
in regard to counting any such votes, or otherwise Unequivocal acts of ownership, with knowledge of the
under this act, in which case it shall be competent for right to elect, and not through a mistake with respect
either House, acting separately, in the manner here- to the condition and value of the estate, will generally
inbefore provided, to direct a recess of such House not be deemed an election to take under a will. It has be-
beyond the next calendar day, Sunday excepted, at come a maxim that no one is bound to elect in igno-
the hour of ten o'clock in the forenoon. But if the rance of his rights.' Compare Satisfy, 3 (8).
counting of the electoral votes and the declaration of
the result shall not have been completed before the 3. The right to choose, or the act of choos-
fifth calendar day next after such first meeting of the ing, between different actions or remedies,
two Houses, no further or other recess shall be taken where the plaintiff has suffered one species
by either House. of wrong from the act complained of.
See Ballot; BniBEBv; Candidate; Congress; De- This right arises where he may sue in tort or upon
posit, 1(1); Holiday; QuALmED, 1; Vacancy; Vote. the contr'act implied by law in the case; or where he
3. The obligation imposed upon a party to may bring an action of a purely equitable nature, or
such as merely seeks a money judgment.*
choose between two inconsistent or alterna-
ELECTRICITY . See Lightning ; Tele-
tive rights or claims, in cases where there is
graph; Telephone.
a clear intention of the person from whom ELEEMOSYNAEY. See Chaeitt, 3;
he derives one that he should not enjoy both.
Corporation.
This, technically, is '• election," or the " doc- ELEGIT. See Execution, 3, Writs of.
trine of election," at law and equity. ELEVATED. See Railroad.
In equity jurisprudence, presupposes a ELEVATOR. See Negligence.
plurality of gifts or rights, with an intention, Relates to capacity of hold-
ELIGIBLE.
express or implied, of the party, who has a
ing as well as of being elected to an office. °
right to control one or both, that one should
be a substitute for the other, i Ineligible. Refers as well to disqualifi-
cation to hold, as to disqualification to be
Thus, one may have an election: to pay money or
elected to, an office."
deliver goods, as a consideration; to observe a con-
tract, or pay damages or forfeit a sum; to retain a ' Gibson v. Gibson, 17 E. L. & E. 353 (1853), Kindera^
security for a debt, or surrender it and sharea voidable as a dis- ley V. C. ; 14 Gratt. 548; 76 Va. 123.
tributee ina dividend; to rescind or affirm a Penn v. Guggenheimer, 76 Va. 846 (1882), Staples, J.
contract; between a statutory and common-law
rem- s 76 Va. 850, supra; Burroughs v. De Couts, 70 Cal.
edy; between a joint and a several action; between 370 (1880); Streatfleld v. Streatfleld (1735), 1 Lead. Cas.
suing an agent and suing his undisclosed principal; Eq., W. & T., 504, 510,J.641; 2 Story, Eq. §§ 1076-98.
between uidependent grounds of defense or of action. 4 See 22 Cent. Law 533-38 (1886), cases.
6 [Carson v. McPhetrid ge, 15 Ind. 331(1860); 15 Cal.
1 et seq. ; 54
Story, Eq. § 1075; 1 Pomeroy, Eq. § '.
Ue.1 2 153. 117; 3 Nev. 566.
» State V. Mun-ay, 28 Wis. 99 (1871).
 ELISOR EMBEZZLEMENT
398

Ro-eligible. Capable of election, or of of another, is rendered free to act for him-

holding office, more than once. See Elec-
tion, 1; Office. Filial emancipation. Enfranchisement
£LISOIl.' An elector chosen by a court self.'
of a minor from parental authority.
to return a panel of jurors where the sheriff Attaining majority is, ipao facto, emancipation.
and the coroner are disqualified.' Emancipation proclamation. Issued,
If exception lies to the coroner, the venire is di- January 1, 1868, by President Lincoln as
rected to two clei-ka of the court, or to two other per- commander-in-chief of the army and navy
sons of the county, named by the court and sworn; of the United States, during the existence of
these two, called "elisors," or electors, indifferently
name the jury, and their return Ife final, no .challenge armed rebellion. It purported to be " a fit
being allowed to their array. ^ and necessary war measure for suppressing
ELOIGN.3 When the sheriff seeks to said rebellion ; " and declared that all per-
replevy goods distrained, and finds them car- sons held as slaves within designated States,
ried out of the county, or concealed, he may and parts of States, were and henceforward
return that they ai'e eloigned, elongata, car- should he free. 2 See Citizen, Amendment^
ried to a distance, to places to him unknown.* XIII.
See Capere, Capias, Withernam. EMBARGrO.3 The detention, by a gov-
When, under ancient practice, he sought to replevy ernment, ofships of commerce in its ports.
a man and found him conveyed out of bailiwick he
made return that the person was elongatus.'
A prohibition against sailing. <
Civil embargo. Is laid upon ships be:
Eloignment. Removal of goods dis- longing to citizens of the State imposing it.
trained, to prevent a replevy.
Hostile embargo. Is laid upon ships be-
Sloiguer. He who makes an eloign ment.
longing to the enemy.
ELOPEMENT.6 The act in a wife of The effect of a hostile embargo is, that if war does
voluntarily leaving her husband to live with, not follow the vessels are restored to their owners; if
another man. otherwise, they are confiscated. Bonds for the ob-
She thereby forfeits her right of dower, unless the servance of the prohibition may be required,^ See
offense is condoned. The husband is not liable for her Blockade.
contracts for necessaries, unless, preserving her pu- EMBASSADOR. See Minl=tek, 3.
rity, she has offered to return and he has refused to
EMBEZZLEMENT.s 1. Appropriation
receive her."'
The "leaving" implies a going beyond the hus- to one's own use of anything belonging to an-
band's actual control. ^ other, whether rightfully or wrongfully in
ELSEWHERE. In or at amother place. the possession of the taker; theft.
Cotiipare Alibi. At an early date, spending, wasting, squandering.
In a will, will pass land wherever situated." " He left an estate to an unthrift son who -embez-
In shipping articles, was construed in subordination
to the principal vpyagei— the words being "to the " Embezzling or vacating records . . is a felo-
zled it."'
Pacific ocean, or elsewhere, thence to Boston, with nious offense." «
wages payable at Canton." "> (q. v.), purchase by imposition of haind — manus-
EM. See En, 3.
capere.
EMANCIPATIOBr." The act by which ' See Fremont v. Sandown, 56 N. H. 303 (1876): Bou-
a person, who is under the power or control vier.
' Slaughter-House Cases, 16 Wall. 68 (1883). See also
' E-li'-Eor. F. eliaeur: L. eligere, to choose. 43 Ala. 692; 44 id. 70; 20 La. Ann. 199; 43 Miss. 102;
»3 Bl. Com. 354: 91 Pa. 495. 13 S. C. Eq. 366; 31 Tex. 504.
3F. Eloigner, to remove to a distance: L. L. e-longe^ ' Spanish embargo, putting a bar (6arj-o)intheway:
far off. arrest, stoppage of ships.
<3B1. Com. 149. < [The Kmg William, 2 Wheat. 153 (1817); L. B., 8
'3 81. Com. 189. C. P. 659.
" Dutch ontloopen, to run away; by substituting the 'See Wheaton, Int. Law, 372; The King William,
prefix e- for Du. onf-. A. S. hleapan, to leap, run. supra; 7 Cranch, 387; 5 Johns. 399.
'2 Bl. Com. 130; 1 id. 442; 11 Johns. 281; 13 id. 298; °N. F. embeasiler, to filch,— Webster. Formerly,
11 Wend. 33; 3 Pick. 280; 7 S. & E. 249; Chitty, Contr. embesile or -sell; the same as imbieill, to weaken,
49; Bish. M. &D. §625. diminish, subtract from. A shop-boy embezzled his
6 Cogswell V. Tibbetts, 3 N. H. 42 (1834). master's store imperceptibly by repeated flfching,—
« 3 P. Wms. 66; 3 Atkyn, 254. Skeat. In early statutes spelled imbezil,-~% N. M. 268.
"Brown v. Jones, 3 Gall. 479 (1815). ' Fuller, The Worthies (1663).
" L. e-majicijjore, to transfer ownersnip: maneipium 8 4B1. Com. 137(1769).
 EMBEZZLEMENT EMBLEMENTS

i'Embeziders of Charters, Grants, Eecorda, Bonds, The details of the crime being statutory, the decis-
Bills, Wills, &o., shall make Double Satisfaction, and ions of other States are to be read with caution.'
be publicly Disgrraced as False persons." * Many State statutes follow 24 and 36 Vict. (1861) c. 96,
"The goods of shipwrecked vessels shall be pre-
served from spoil and embezzlement." ' In some States the injured person may receive pay-
" He who would embezzle a ship's furniture, would §§ 6S-73.5
ment for the property embezzled or take security
not hesitate to embezzle the carpro." *
Section 8467, Eev. St., creates two statutory offenses: therefor.=
In the Revised Statutes, the term designates a va-
that of embezzling a letter in postal custody which riety of offenses having in common the idea that the
has a valuable thing enclosed; and that of taking and person has an opportunity to commit them by reason
stealing such thing out of a letter which has been em- of some office or employment; and that they include
bez led. A prosecution may be for one or both
some breach of confidence or trust, some misuse 'of a
confidential opportunity: as, conversion by a public
3. The fraudulent conversion of property officer to his own use of public money intrusted to
him for safe-keeping, disbursement, transfer, or other
by a person to whom it has, been intrusted.*
A species of theft, consisting in the steal- See Decoy; Peculation.
ing of property by clerks, agents, servants — purpose.*
EMBLEMENTS.* The vegetable chat-
persons acting in a fiduciary capacity.* tels called emblements are the corn [grain]
Distinguishable from "larceny" in that the taker and other growth of- the earth which are
comes lawfully into possession of the property."
produced annually, not spontaneously but
To "embezzle" is to appropriate to one's by labor and industry ; thence called frueius
own use property or money intrusted to him industrialesfi
by his employer.' A growing crop of grass, even if grown from seed,
At common law, had no definite meaning. As an
offense, had its origin in efforts made to amend the and ready to be cut for haj', cannot be taken as em-
blements: the improvement is not distinguishable
law of larceny. The first statute was that of 8 Henry
from natural product, although it may be increased
VHE (1517), c. 7, in which the descriptive words were
" did embezzle or otherwise convert the money to his by The
cultivation."
doctrine of emblements is founded on the un-
own use." Statute of 7 Greo. IV (1887) improved and
superseded earlier legislation; in it the words are certainty of the termination of the tenant's estate.
Where that is certain there exists no title to emble-
" shall fraudulently embezzle." '
Frequently termed "larceny by bailee." Nursery trees more nearly resemble emblements
Where the accused is not named as a "bailee," it ments.'
than fixtures; emblements being the annual product
maybe a question of law upon the averments whether or fruit of things sown or planted. Hops, berries,, and
or not he was a bailee." See Larceny.
It is essential: that the accused occupy a fiduciary the like, are such, but not the roots and bushes from
relation; that he received property (money) in the which they grow. Emblements reared by a tenant
course of his employment; that the property belonged entering subseqtiently to a mortgage pass to the pur-
chaser at a foreclosure sale, unless gathered before
to his principal; that he converted it with intent to
steal and embezzle it.'" theThesale."
word is used both for the crops or grain and
The indictment must allege that the accused "felo- for the privilege of reaping or gathering them. See
niously did steal, take and carry away " the property. '» further Chop; Fbdotus.
" Great Law of Penn., Ch. L
' IMd., Ch. C^XXl (1683). '7 Tex. Ap. 417; 4 id. 407-9, cases; 2 Bishop, Crim.
» The Boston, 1 Sumn. 356 (1833), Story, J.
Law, § 331.
4 United States v. Baugh, 4 Hughes, 608 (1880). See S2 Bish. Cr. L. §§ 326-70, 392-462; 2 Whart. Cr. L.
United States v. Long, 4 Woods, 464 (1881). 3060-3162.
§§ s 1906-43,
Johnston Harvester Co. v. McLean, 57 Wis. 362
' 2 Bishop, Cr. L. § 336; Pittsburgh, &c. Pass. E'y Co.
V. McCurdy, 114 Pa. 6S8 (1886).
(1883); Fagnan v. Knox, 66 N. Y. 626 (1876). See gener-
'United States v. Lee, 12 F. R. 818 (1882), Cox, D. J.; ally Calkins v. State, 18 Ohio St. 366 (1868): 98 Am. Deo.
11 id. 293; State v. Wingo, 89 Ind. 806 (1883;; 41 How. 136-74, cases.
Pr. 294; 62 Wis. 63; 4 Tex. Ap. 403. •United States v. Conant, ante; United States v.
' State V. Wolff, 34 La. An. 1154 (1882), Manning, J. Cook, 17 Wall. 171 (1872): 6 id. 385. See R. S. §§ 6437,
estate D.Wolff, supra; New Mexico i;. Maxwell, 2 6467, 5486, 5496.
N. M. 367-68 (1882); United States v. Conant, 9 Cent. » O. F. embUer, emblader, blayer, to sow with grain:
Law J. 129 (Cir. Ct., Mass., 1879), cases: R. S. § 5209-
national bank officer or agent; 3 Steph. Hist. Cr. L. bled,
" Reiff 64 Pa." blade."
Relff,grain,
bli, V.corn, 137 (1870), Read, J. ; 1 WllUams,
Eng. 162-63. Exec. 670, 672; Taylor, Landl. & T. § 543.
' People V. Johnson, 71 Cal. 392 (1886). 7 Whitmarsh v. Cutting, 10 Johns. »361 (1813). See at
J« Exp. Hedley, 31 Cal.> 113 (1866). 3 BI. Com. 132-33, 145^.
length
8 Hamilton v. Austin, 36 Hun, 142 (1885), FoUett, J.
II Commonwealth v. Pratt, 132 Mass. 346 (1882): Gen.
Sts. c. 161, S 38.
See also 19 Am. Law Eev. 24-31 (1885), cases.
 EMBRACEKY 400 EMPTY

EMBRACERY.i An attempt to influ- Employed. May refer to any present

ence ajury corruptly to one side by promises, occupation, but commonly to continuous oc-
persuasions, entreaties, money, entertain-
ment, and the like.'' cupation.'
" Employed " in anything imports not only the act
Embraceer or embracer. One who at- of doing it, but also being engaged to do it, being
under contract or orders to do it.^
tempts to influence a jury (or a juror) by
Employe, or employee; employer.
corrupt or unlawful means.
EMERaENCY. See Accident; Neg- " Employe " is from the French, but has be-
ligence. come naturalized in our language. Strictly
Within the meaning of a statute against practicing and etymologically it means " a person em-
medicine without a certificate, except where the serv- ployed "; but in practice in the French lan-
ices are gratuitous and " the case one of emergency, " guage itordinarily denotes a person in some
the reference is to a case in which .the ordinary and official employment. 3
qualified practitioners are not readily obtainable, not
to a case in which the patient has been given up as in- "Employe" is the correlative of "em-
curable byphysicians of the schools provided for by ployer." Neither term is restricted to any
the statute.^ particular employment or service. " To em-
EMIGRATIOH". See Immigration ; Com- ploy is
" to engage or use another as an agent
merce: ExiRE, Ne exeat. Compare Expa- or substitute in transacting business, or the
triation. performance of some service, it may be
EMINENT. See Domain, 1. skilled labor or the service of the scientist
EMIT. See Credit, 3, Bill of. or professional man as well as servile or
EMOLUMENT. Any perquisite, ad- unskilled manual labor.*
vantage, profit, or gain arising from the pos- "Employe" usually embraces a laborer,
session of an office. servant, or other person occupied in an in-
Imports, tlfen, more than " salary " or " fees." * See ferior positioh.5
Fix, 3; Office, 1. Applies equally to a person within or without an
EMOTIONAL. See Insanity. office, whether a servant or a clerk. An " employee
EMPANEL. See Panel. in an ofSce " is a person engaged in the performance
of the proper duties of an olHce, whether his duties
EMPHYTEUSIS.* An estate in land, are carried on within or without the walls of the build-
under the Roman law, analogous to a fee- ing in which the chief ofBcer transacts his business."
farm, or perpetual lease, in English law. The English form employee, though legitimate as
It gave the occupant, or his transferee, a perpetual conforming to analogy, is not sanctioned by theiisage
lease, conditioned upon payment of rent, and, per- of good writers.^
baps, improvement of the land. See Boycotting; Business; Contractor; Gift;
Whence emphyteutic.'* Labor, 1; Neglioenoe; Servant; Sdnday; Trade.
EMPOWER. See Agent ; Authority, 1 ;
EMPLOYMENT.' Occupation ; posi- Delegatus; Power.
tion involving business ; service.
Employ. (1), n. Originally, the poetical EMPTY. Ordinarily, to make void, ex-
form of employment. haust, deprive of contents.
Section 3324, Rev. St., which makes it an offense to
(2), V. To engage in one's service ; to use
as an agent or substitute in transacting busi- fail to obliterate a stamp at the time of " emptying "
a cask of spirits, does not mean that absolutely every
ness; to commission and intrust with the
particle of the spirit be drawn off. The emptying in-
management of one's affairs. Used with re- tended issuch as can be conveniently done by the
spect to a servant or laborer, equivalent to ordinary method.^
Compare Occupied; Vacant.
"hire." 8
^ O. F. embracer, to clasp in the arms, embrace. • Wilson V. Gray, 137 Mass. 99 (1879), Lord, J.
2 4 Bl. Com! 140. See Glbbs v. Dewey, 5 Cow. 505 (1823) ; ' United States v. Morris, 14 Pet. 475 (1840), Taney,
State V. Sales, 3 Nev. 269 (1866); Hawk. PI. Cr. 869. C. J. ; 2 Paine, C. C. 745; 22 Ohio, 194; 20 S. C. 4-6.
s People V. Lee Wah, 71 Cal. 80 (1886). » Gurney v. Atlantic, &c. E. Co., 2 N. Y. Supr. Ct. 453
• Apple V. Crawford County, 105 Pa. 303 (1884); Const. (1873), Talcott, J.
Pa. Art. m, § 13. * Gumey v. Atlantic, &c. E. Co., 68 N. Y. 371 (1874),
' Accent on -teu-. Gk. emphytetiein, to plant or im- Allen, J. ; Krauser v. Euckel, 17 Hun, 465 (1879).
prove land. " People V. Board of Police, 78 N. Y. 41 (1878).
• See 3 Bl. Com. 232; Maine, Anc. Law, 289. » Stone V. United States, '3 Ct. CI. 262 (1867); Peck, J.
' F. employer, to involve, engage, occup.y. ' Webster's Diet.
sMcCluskey v. Cromwell, 11 N. Y. 599 (1854). 8 United States v. Buchanan, 4 Hughes, 488 (1881).
 EN 401 ENEMY

EN. In; into. An endowment policy is an insurance into which

1. The French form of the English and enters the element of life. In one respect it is a con-
tract payable in the event of a continuance of life; in
Latin preposition in. See In, 1, 3 (3). another, in the event of death before the period speci-
En autre droit. In right of another.
See Deoit. By the endowment of a school, hospital, or chapel
En fait. In fact ; in deed. fied.'
is commonly understood, not building or purchasing
En owe! main. In equal hand. See a site for the institution, but providing a fixed revenue
Owelty. for its support.'
The " endowment of a religious or educational cor-
En route. On the way. See Route. poration "refers to that particular fund, or part of
En ventre. In the womb ; unborn. See the fund, of the institution, bestowed for its more per-
Venter. manent uses, and usually kept sacred for the purposes •
2. As a prefix, coincides with the Latin in. intended.'
Some Euglisli words are written indifferently en- or ENEMY. A nation, or a citizen or sub-
in-; as, encumber and incumber, endorse and indorse, ject thereof, at war with another nation.
enjoin and injoin. In seems to be preferred. Alien enemy. One who owes allegiance
For ease of pronounciatlon, cliangesto em-, particu- to a government at war with ours, dwelling
larly before a labial: as, in embracery, employ, em- within our territory or seeking some action
power. from a department of our government.
ENABIiIIfG. Describes an enactment
Enemies of the United States. The
which confers power to do a thing : as, stat-
utes of wills, statutes permitting parties to subjects of a foreign power in a state of open
testify ; opposed to disabling or restraining hostility toward us. Does not embrace
acts or statutes. "rebels" in insurrection against their own
ENACT. See Act, 3, Enact. government. An "enemy" is always the
ENCEINTE. See Ancient, 2; Preg- subject of a foreign power, who owes no al-
nancy; Venter. legiance to our government or country.^
ENCHANTMENT. See Witchcraft. " Rebels " and " enemies " may be synonymous for
those who have cast off their allegiance and made war
ENCLOSUKE. Imports land enclosed upon their own government. Who are enemies in
with something more than the imaginary a civil war^ the law of nations has not defined; but,
within the meaning of a confiscation act, the term may
boundary line, — some visible or tangible include those who are residents of the territory under
obstruction, as, a fence, hedge, ditch, or an
the power of the parties resisting the regular govern-
equivalent object, for the protection of the ment. . . In the case ot a foreign war, applies to
premises against encroachment, as by cattle. i all who are inhabitants of the enemy's country, though
A tract of land surrounded by a fence, together not participants, and even though subjects of aneutral
with such fence: as, in a statute limiting one's right State, or even subjects of the government prosecuting
to distrain beasts to those doing damage within his the war against the State within which they reside.*
enclosure.' See Close, 3. Public enemy. Eeferring to the under-
ENCROACH. To intrude upon, make taking of a common carrier, applies to for-
gain upon, occupy, or use the land, right, or eign nations with whom there is open war,
authority of another, as if by gradual or par- and to pirates, who are considered at war
tial assumption of right. See Purprestuee. with all mankind ; does not include robbers,
ENCUMBEK. See Incumber. thieves, rioters, insurgents, whatever be their
END. See At, 2 ; Final ; Fine ; Terminus.
violence, or Indians.'
ENDORSE. See Indorse.
ENDOW. 1. To confer rights of dower, 1 Brummer v. Cohn, 86 N. Y. 17 (1881), Andrews, J.
' [Edwards v. Hall, 6 De G. M. & G. *87, 83 (1855),
q. V. Cranworth, Ld. C.
2. To make pecuniary provision for the 3 State V. Lyon, 33 N. J. L. 361 (1867), Bedle, J.
support of a person or institution. * United States v. Greathouse, 4 Saw. 466 (1863),
Endowment. The act of settling a fund Field, J.
upon one ; also, such fund itself. Used of a 'Prize Cases, 3 Black, 674 (1S62); Miller v. United
policy of insurance payable at a certain age States, 11 Wall. 310-13 a870); Gates v. Goodloe, 101
or at death. U. S. 617(1879); 30 How. 319; 31 W. Va. 357.
•Story, Contr. 752, Bailm. § 526; Southern Express
1 [Porter v. Aldrich, 39 Vt. 331 (186G): Act 1797, 11. S. Co. V. Womack, 1 Heisk. 269 (1870); 7 id. 625; State v.
412, §4; ib. 34. Moore, 74 Mo, 418 (1881); League v. Eogan, 59 Tex. 434
a Taylor v. Wilbey, 36 Wis. 44 (1874); 34 id. 606. 4 Op. Att.-Gen. 81.
(36)
 ENLARGE
ENFEOFF 402

In a policy of marine insurance, " enemies " means ENJOIN. See Injunction.
"public enemies," those with whom a nation is at ENJOYMENT. Possession ; occupa-
war.^ ^ee Carrier, Common; Treason; War.
EWFEOFF. See Fee. tion; use; exercise.
Enjoyment as of right is an enjoyment had, not
ENTOECE. See Force; Performance. secretly or by stealth, or by tacit sufferance, or by
ENPRAlf CHISE. See Franchise, 3. permission from time to time, on each occasion, or on
ENGAaEMENT. See Agreement ; As- many occasions, of using it; but an enjoyment had
openly, notoriously, without particular leave at the
sumpsit; Contraot; Promise; Undertak-
ing. time, by a person claiming to use without danger of
being treated as a trespasser, as a matter of right,
ENGINE. Includes a snare, whiph is a whether strictly legal by prescription and adverse
device or contrivance for killing game.^ user or by deed conferring the right, or, though not
Engineer. See Admission, 3 ; Commerce. strictly legal, yet lawful to the extent of excusmg a
ENGLAND ; ENGLISH. See Borough ;
Chancery; Charity, 3; Constitution; Adverse enjoyment. The possession or
exercise of an easement or privilege under a
Court ; Cy Pres ; Descent, Canons of ; Ex-
tradition, 1;Feud; King; Latin; Law, claim of right against the owner of land.
K open, and continued without interruption for
Common; Parliament; Statute. twenty years, a conclusive prescription of grant arises,
ENGRAVING. See Copyright ; Print. provided that during the time there was some one in
ENGROSS. 1. To write in a gross, i. e., possession, qualified to resist the claim." Compare
a large, hand ; to copy in a fair band : as, Possession, Adverse.
to engross an instrument on parchment. Quiet enjoyment. Peaceable, undis-
Whence engrosser, engrossing. turbed possession of land.
After a proposed statute has been read and acted Covenant for quiet enjoyment. A cove-
upon a sufficient number of tunes, it is ordered to be nant in a conveyance or lease of land, en-
gaging that the grantee or lessee shall be
" A bill ordered to be engrossed is to be written in
permitted to use the land unmolested. ^
a strong gross hand." ^ See Gross. Every lease implies a covenant for ,quiet enjoy-
3. At common laiw the offense of engross- ment. But it extends only to the possession; audits-
ing was the getting into one's possession, or breach, like that of a warranty for title, arises only
buying up, large quantities of corn [grain] from eviction by means of title. It does not protect
or other dead victuals, with intent to sell against entry and ouster of a tort-feasor. The tenant
may call his landlord into his defense; and, it evic-
them again.* tion follows as the result of a failure to defend hini,
An injury to the public. If permitted, one or more he can then refuse to pay rent, and fall back upon
men coxild raise the price of provisions at will. The
total engrossing of any other commodity, with intent this covenant for quiet enjoyment to recover his dajn-
to sell it at an unreasonable price, was also an indict-
A lease with an express covena,nt for quiet enjoy-
able offense.* See Combination, 2; Corner; Monop-
oly. ages.* ment implies a covenant that the lessor has title and
power arid right to convey it. The implied covenant
ENHANCED. In an unqualified sense, is broken if the lessor has made a prior and still out-
standing lease of part of the premises. A recovery of
is equivalent to "increased," and compre-
hends any increase of value, however caused the premises by the prior lessee is such an eviction as
or arising. constitutes a breach of the covenant for quiet enjoy-
ment; and the lessee may recoup his damages from
In Oregon if a husband aliens dowable lands, and
the rent due.*
they become "enhanced in valne" thereafter, they See Demise; Warranty, 1.
shall be estimated, in setting forth the dower, ac-
cording to their value when aUened. Held^ that ENLARGE. To extend, increase,
" enhanced " included only the value caused by im- lengthen the time of ; also, to set at liberty.
provements made, and not that which arises fortui- Enlarge an estate. To increase the ten-
tously, or from natural causes.* ant's interest.
Enlarge an order or rule. To extend
1 Monongahela Ins. Co. v. Chester, 43 Pa. 493 the time for complying with it.
Vattel, Law of Nations, 387.
s Allen V. Thompson, L. E., 5 Q. B. *339 (1870). 1 Tickle V. Brown, 31 E. C. L. 91 (1836), Denman, C. J.
» 1 Bl. Com. 183. !'2Washb. E. P. 42,48.
1 4 Bl. Com. 168. » 1 Washb. E. P. 325; 4 Kent, 474, n.
« Thombum v. Doscher, 32 P. E. 812 (1887), Deady, J. ; * Schuylkill, &o. E. Co. v. Schmoele, 57 Pa. 273 (1868);
2 Or. Laws, § 2960. The syllabus (by the court) reads Mark v. Patchin, 42 N. Y. 171-72 (1870), cases.
" not arising from improvements." » McAlester v. Landers, 70 Cal. 82-84 (
 ENLISTMENT 403
ENTIRE

ENTAIL. See Tail.

To "enlarge" and to "extend" the time for taking
testimony may have different meanings in a partic- ENTER. See Entry.
ular case. ^
ENTERPRISE. See Gift, 1.
Enlarging statuta. Extends a right or
ENTERTAINMENT. Public recep-
a remedy as it exists at common law.2
ENLISTMENT. tion ;something connected with the enjoy-
Either the complete
ment of refreshment-rooms, tables, and the
act of entering into miUtai-y service, or the lilie.i See Inn.
first step taken toward that end. 3
A public aquarium is a "place of entertainment
A technical term, derived from Great Britain. In
and amusement," when a band plays and the fish are
the English Cyclopsedia, defined to be "a voluntary fed." See Exhibition; Theater.
engagement to serve as a private soldier for a certain
ENTICE. See Abduction; Husband;
number of years." Chambers defines it as "the means Persuade.
by which the English army is supplied with troops as
distinguished from the conscription prevailing in many ENTIRE. Untouched: complete; un-
other comitries." * broken, whole ; undivided, indivisible, insev-
Has never included entry into service under com-
mission as an officer.' erable: as, an entire — consideration, cove-
Public policy requires that a minor be at liberty to nant, contract, 3 g. v. See Separable.
enter into a contract to serve the state, wherever such An entire claim arising out of one transaction, con-
contract is not positively forbidden by the state itself. tract or tort, cannot be divided into separate and dis-
This at least is the common law of England.' tinct claims. A verdict for one portion will bar an
Eev. St., §§ 1116-17, authorizes enlistment in the army action on another.* See Damages; Multipucity.
of men above the age of sixteen, no person under Entirely. " Entirely ^tisfied " implies a flrih and
twenty-one to be mustered into service without the thorough assent of the mind and judgment to the truth
written consent of his parents or guardian. "of a proposition; and this may exist, notwithstanding
A contract made by a minor over sixteen, without a possibility that the fact may be otherwise.'
consent, can be avoided only by his parents, they Entirety. The whole, as opposed to a
claiming his custody before majority.'
moiety. '
Habeas corpus is the judicial proceeding to secm'e If an estate in fee be given to a man and
release of a minor whose parents did not consent to
his enlisting. 3 See Desertion, 3. his wife, they are neither properly joint-
ENORMIA. L. Wrongs ; unlawful acts. tenants, nor tenants in common ; for, being
Alia enormia. Other wrongful acts. one person in law, they cannot take the es-
After a specific allegation of wrong done by a de- tate by moieties, but both are seized of the
fendant, the plaintiff may ftuther charge, generally, entirety, — the ooQsequence of which is, that
aUa enormia^ to the damage, etc., — " and other neither can dispose of any part without the
wrongs then and there did against tlie peace," etc. assent of the other, but the whole must re-
Then, all matters naturally arising from the act com-
plained of may be given in evidence." See Cauages, main to the survivof.s
The right, at common law, to control the possession
Special.
of the estate during their joint liv^s is in the husband.
ENQUIRY. See Inqiotrt.
Subject to the limitation that neither can defeat the
ENROLL. See Roll; Registry, Of right of the survivor to the whole estate, the husband
vessels. has such rights as are incident to his own property,
ENS. L. A being ; a creature. and which he acquires in her realty. Having the usu-
fruct of all her realty interests, by th» weight of au-
Ens legis. A creature of the law ; an ar-
thority he may lease the estate during coverture.
tificial person, a legal entity, a corporation. Statutes enabUng ;narried women to hold and dispose
' James v. McMillan, 55 Mich. 136 (1884). of their property as if sole do not affect this species of
= See 2 Bl. Com. 324; 1 id. 87. estate, unless expressly so stated.'
The survivor does not take as a new acquisition, but
' Tyler v. Pomeroy, 8 Allen, 485 (1864), Gray, J. See
Erichson v. Beach, 40 Conn. 286 (1873); Sheffield v. Otis, under the original limitation, his (or her) estate being
107 Mass. 282 (1871). simply freed from participation by the other; so that
* Babbitt v. United States, 16 Ct. CI. 213 (1880), Dar
vis, J. 1 Muir V. Keay, L. E., 10 Q. B. 597-98 (1875).
, ' Hilliard v. Stewartstown, 48 N. H. 280-81 (1869), Per- ° Terry v. Brighton Aquarium Co., L. R.p 10 Q. B. 306
ley, C. J. (1875). See Howes v. Board of Eevenue, 1 Ex. Div. 385
« Commonwealth v. Gamble, 11 S. & E. *94 (1824), (1876).
Gibson, J. « See 2 Pars. Contr. 517.
' i?c Hearn, 32 F. E. 141 (1887). * Phillips V. Berick, 16 Johns. 136 (1819).
8 JJe Baker, 23 F E. 30 (1885), cases; E. S. § 1117. » People V. Phipps, 39 Cal. 335 (1870).
»2 Greenl. Ev. §§ 268, 273, 278; 1 Oiitt. PI. 397; 3 • [2 Bl. Com. 182.
Mass. 222; laid. 194. ' Pray v. Stebbins, 141 Mass. 223-24 (
 ENTITLE 404 ENTRY

if, for instance, the wife survives and then dies, her right of entry may be " tolled," that is, taken away,
heirs would take to the exclusion of the heirs of the by descent. Corresponds to recaption of personalty.^
husband. Nor can partition be made of the estate. Ee-entry. The right reserved to consider
During coverture the husband has control of the es- a lease forfeited and to resume possession of
tate. Upon his death, the wife, or her heir, may enter
without action against his alienee— by 32 Hen. Vin the premises, upon failure in the lessee to per-
(1541), c. 28, which is in force in Kentucky, Massachu- form' a covenant ; also, any exercise of this
setts, Tennessee, and possibly in New Tork and New right.
Jersey. Divorce of the wife from the husband restores This being a harsh power, the courts will restrain
her to her moiety. A grant or devise to them and an- it to the most technical limits of the terms and condi-
other invests them with an entirety in one-half only. tions upon which the right is to be exercised. ^
It is always competent, however, to make husband and When for rent in arrear, unless dispensed with by
wife tenants in common by proper words. The law of agreement or statute, demand of payment of the rent
the States is not uniform on the subject.* must first be made.'
ENTITLE. See Title, 3. 3. On the subject of entry by a grantor for
ENTRAP. See Decoy.
breach
Grant, of
3. condition by the grantee,' see
ENTEY.2 I. As relates to Property.
The act of actually going upon land, or into 3. Going upon the landed property of an-
a building. other for any other purpose than those above
At common law, an assertion of title by mentioned.
going upoil the land ; or, if that was hazard- It is not a trespass to enter upon another's premises
to abate a nuisance, retake goods, make repairs, de-
ous, by "making continual claim." '
Taking possession of lands by the legal mand rent, distrain, or capture an estray.' See Tres-
pass, Ab initio.
owner.* Forcible entry. An entry made with
1. An extrajudicial and summary remedy
violence, against the will of the lawful occu-
by the legal owner, when another person, pant, and without authority of law.
who has no right, has previously taken pos- Such entry as is made with a strong hand,
session of lands or tenements.
with unusual weapons, an unusual number
The party entitled may make a formal but peace-
able entry thereon, declaring that thereby he takes of servants or attendants, or with menace of
possession, which notorious act of ownership is equiv- life or limb ; not a mere trespass.^
alent to a feudal investiture; or he may enter on any "When a man enters peaceably into a
part of the land in the same county in the name of the house, but turns the party out of possession
whole ; but if the land lies in different counties he must
make different entries. If the claimant is deterred by force, or by threats frights him out of
from entering by menaces he may "make claim"
as near the estate as he cai^ with the like forms and It will be sufficient if the entry is attended with
possession." *
solemnities, which claim is in force for a year and a such a display of force as manifests an intention to
day; and, if repeated once in the like period (called intimidate the party in possession, or deter him from
** continual claim "), has the same effect as a legal defending his rights, or to excite him to repel the in-
entry. Such entry puts into immediate possession vasion, and thus bring about a breach of the peace. '^
him that has the right of entry, and thereby makes Forcible entry and detainer. An of-
him complete owner, capable of conveying. But this fense against the public peace, committed by
remedy applies only in cases in which the original
violently taking or keeping possession of
entry of the wrong-doer was unlawful, viz., in abate-
ment, intrusion, and disseisin. In discontinuance and lands and tenements by menaces, force, and
deforcement the owner of the es'tate cannot enter;
arms, and without the authority of law.
for, the original entry being lawful, an apparent right The entry now allowed by law is a peaceable one;
of possession is gained, and the owner is driven to his that forbidden is such as is carried on and maintained
action at law. In cases where entries are lawful, the by force, by violence and with unusual weapons.'*
In early days, at common law, any man who had a
11 Wash. E. P. 425, cases; 4 Kent, 362; Cihandler v.
right of entry upon lands was authorized to enter with
Cheney, 37 Ind. 394^414 (1871), cases; Be Benson, 8 Biss.
118-21 (1877); Jacobs v. Miller, 50 Mich. 124 (1883); Had- > 3 Bl. Com. 174r-79, 5; 2 id. 314.
lock V. Gray, 104 Ind. 598 (1885): 25 Am. Law Eeg. » The Elevator Cases, 17 F. E. 200 (1881).
269-74 (1886), cases; 18 Cent. Law J. 183-^, 3:36-29 (1884), s Johnston v. Hargrove, 81 Va. 121-23 (1885), cases.
cases; 5 Kan. Law J. 5 (1887), cases; Thornton i;. Thorn- 4 Keif er v. Carrier, 53 Wis. 404 (18G1).
ton, 3Hand. 182-90 (Va., 1826), cases; 3 Lead. Cas. R. P. ' Willard v. Warren, 17 Wend. S61 (1837).
143-68 (1887), cases. « Bacon, Abridg. : Edwick v. Hawkes, 18 Ch. Div. 211
2 F. entrer: L. in-trari', to go into. (1881). See also 8 Ala. 87; 9 Cal. 46; 21 N. J. L. 428.
" [Innerarity v. Mims, 1 Ala. 674 (1840). ' Ely V. Yore, 71 Cal. 133 (1886), cases.
« Guion V. Anderson, 8 Humph. 306 (1847). 8 4 Bl. Com. 148; Eee ler v. Purdy, 41 HI. 2f
 ENTRY 405 ENTRY

force and arms, and by force and arms retain posses- Short entry. It was a custom in London for
sion — provided, possibly, that the entry was nptbya bankers to receive bills for collection and to enter
breach of the public peace. The general revision of them immediately in their customers' accounts, but
the written law upon the use of force by an individual never to ca,n-y out the proceeds in the column to then-
to establish his own rights, made by statute 8 Hen. VI credit until actually collected. This was called " short
(1430), c. 9, is substantially the origin of existing law entry " or " entering short." '
upon the subject of forcible entry and detainer. Prose- 2. The transaction by which an importer
cution under this statute is by indictment. In Massa- obtains entrance of his goods into the body
chusetts, unless the entry and detainer is accompanied
of the merchandise of the country.
by an actual breach of the peace, the process is sub-
stantial y acivil proceeding. Under either procedure Until the entire transaction is closed, by a with-
drawal and payment of the duties upon all the goods
the court will award restitution of the premises.^
The purpose of statutes forbidding forcible entry covered by the original paper called the entry for
and detainer is, that, without regarding the actual con- warehouse, the "false entry" contemplated by the
dition of the title to property, where a person is in the act of Congress of March^ 1863, is not completed."
In the statutes in relation to duties, but one entry is
peaceable and quiet possession of it he shall not be
turned out by strong hand, by force, by violence, or by referred to — the original entry provided, regulated,
terror. The party so using force and acquiring pos- and defined by sections 2786-90, Eev. St. "Entry for
session may have the superior title or may have the withdrawal " is a misnomer. s
better right to the present possession, but the policy 3. Filing or inscribing upon the records of
of the law is to prevent disturbances of the public a land-ofiBce the written proceedings required
peace, to forbid any person lighting himself, in a case to entitle a person to a right of pre-emption
of that kind, by his own hand and by violence, and to
or of homestead in public lands.
require that the party who has in this manner obtained
The act by which an individual acquires inceptive
possession shall restore it to the party from whom it
right to a portion of the unappropriated soil of the
has been obtained; and that, when the parties are in
statu quo, in the position they were in before the use country, by filing his claim in the offlce of the " entry-
of violence, the party out of possession must resort to taker," an officer who corresponds in his functions to
legal means to obtain his possession, as he should have the register of land-oSaces.< See Land, Public; Pbe-
EMPTION, 2.
done in the first instance.''
If a claimant (a railroad company) of real estate, 4. Depositing for copyright the title or de-
out of possession, resorts to force, amounting to a scription ofa book or other article.
breach of the peace, to obtain possession from an- Whence " Entered according to Act of Congress,"
other claimant (also a railroad company) who is in etc. See Copyright.
peaceable possession, and personal injury arises there- 5. Recording in due form and order a
from, the party using the force is liable in damages, thing done in court : as, an appearance made,
compensatory and punitive, for the injury, without re-
gard to the legal title, or to the right of possession. = judgmententries.
a"record" rendered. Styled " docket " or
4. Entrance into a dwelling-house with the When a written order is signed by the judge and
whole or a part of the body, or with any filed with the clerk, who enters a brief statement
implement for the purpose of committing a thereof in his "minute-book, the order, although not
felony. See Bueglaey. then recorded in the order-book, is "entered," within
II. As a matter of Writing. Setting down the meaning of a law limiting the time for appeal.*
In a literal sense, writing up a judgment in a docket
in written characters ; placing upon the rec- is "entering" it; as, entering the judgment of a jus-
ord: recording.
tice of the peace. •
1. Setting down in a book of accounts the 6. In the practice of legislative bodies, the
particulars of a business transaction. orderly inscription in a journal of any action
Original entry. The first statement or determination required to be preserved in
writing.
made by a person in his account-books, charg-
ing another with money due upon a contract The constitution of Iowa requires that a proposed
between them. Whence "book of original amendment " shaU be entered " in the journals of the
entries." ■• See further Book, Entries. two houses of Assembly "with the yeas and nays."
iHortgkins «. Price, 138 Mass. 200 (1882), Lord, J. ; 1 Blaine v. Bourne, 11 E. 1. 121 (1876), Potter, J.
486.
Presbrey v. Presbrey, 13 Allen, 284 (1866); 10 Greg. ' [United States v. Baker, 6 Bened. 35 (1871), Blatch-
! Iron Mountain* Helena E. Co. v. Johnson, 119 U. S. ford, J. ; 12 St. L. 737.
611 (1887), Miller, J. 3 United
Pardee, J. States .. Seidenberg, 17 F. E. , 230 (1883),
^
3 Denver & Eio Grande E. Co. v. Harris, 123 U. S. 597,
J.
605 (1887), Harlan, J. As to civil action, see
32 Cent. i Chotard v. Pope, 12 Wheat. 588 (1827), Johnson,
Law J. 392 (1886), cases. »Uren v Walsh, 67 Wis. 102 (1883); E. S. Wis. § 3042.
•See generally Eoche v. Ware, 71 Cal. 376-77(1
886), « Conwell V. Kuykendall, 29 Kan. 707, 710 (1883) ; Kan.
(1886).
cases; Bridgewater v. Eoxbury, 54 Conn. 213 Comp. Laws, 1879, ch. 81, § 115.
 ENUMERATION
406 EQUITY

This means that the amendment shall be spread at Equally. In a will, may mean not that
length thereon, and the yeas and nays set out in the shares are to be held in the same manner,
journal in full. But instances where "to enter" and
but as equal in quantity.!
"entered" do not naeau to spread at length may be
cited. The object to be obtained must be considered A per capita division is intended by "divided
in each case.' See Yeas akd Nats. equally," whether the devisees are children ard grand-
cliildren, brother or sisters, nephews or, nieces, or
III. As a Remedy. A " writ of entry," at
strangers in blood to the testator."
common law, was a proceeding by which the When a testator designates the objects of his gift
possession of land, wrongfully withheld from by their relationship to a living ancestor, they take
its owner, could be recovered. equal shares, per capita. But this rule will be con-
A Keal action, possessory in nature. In a greatly trolled by the general intention of the testator."
modified form, has been used in this country. In Eng- "Equality is equity," and where distribution is to
land, superseded by the action of ejectment, and, be made among two or more, without anything to in-
later, abolished." dicate the proportions, the presumption is that the
ENUMEEATION. Separate mention. shares are equal.*
The enumeration of particular things in an instru- An estate given to two persons, " equally to be di-
ment may include others of the same class; there is vided "between them, is, under a deed, a joint ten-
ancy; under a will, a tenancy in common. In the
no absolute rule that sudi enumeration includes things
of a different class, when the general terms are broad case of a deed is implied no more than the law has an-
nexed to the estate, viz., divisibility; in the case of a
enough to include them.' See Ejusdeu Generis; Bx-
PKESsio, Unius, etc.; General, 6; Other. will, the devisor may be presumed to have meant ■
EWURE. See Inuee. what is most beneficial to both devisees."
Equality. Uniformity, likeness; same-
ENVELOPE. See Letter, 3; Publica- ness: as, of civil liberty. See Citizen,
tion, 2.
Amendment, XIV; Equity; Tax, 3.
ENVOY. See Minister, 3.
EQUITABLE. See Equity, Equitable.
EO. L. On that, in that; at the same.
See Is. EQUITY.e 1. The point of contrast be-
tween the law of nations (g. v.) and the law
Eo die. On the same day, at the same
time ; as, eo die, writ issued. of nature was " equity; " a term which some
Eo iustaute. At the same moment or derive from a Greek word denoting the prin-
ciple of equal distribution : but that origin is
instant.
to be preferred which gives the term the
Ep nomine. In or under the same name ;
as, interest eo nomine. sense of " leveling." The civil law of Rome
EPIDEMIC. See Disease ; Health. recognized many arbitrary distinctions be-
tween classes of men and property. The
When, in a policy of insurance, it does not appear
neglect of these distinctions was that feature
that the word "epidemics" was understood by the
pt^rties in any other than its popiUar sense, evidence of the law of nature which is depicted in
is not admissible to change that meaning. The in- equity. It was first applied, without ethical
surer may stipulate for exemption from liability for
meaning, to foreign litigants.'
any disease that may by possibility prevail to an ex-
3. Equality of right ; exact justice between
tent which could be called epidemic*
contending parties; fairness in determining
EQUAL.5 Compare Equivalent.
conflicting claims; justice.
Like or alike in quality, degree, amount,
or merit ; corresponding ; uniform ; the same : 3. That portion of natural justice which is
as, equal provision, equity, protection, rights.
' Bannister v. Bull, 16 S. 0. 227 (1881).
Equal to. Not less than : as, in an agree-
"Pumell V. Culbertson, 12 Bush, 370-71 (1876), cases.
ment to keep the number of boats in a freight
= Young's Appeal, S3 Pa. 63 (1876), cases; Risk's Ap-
line " equal to" the number leased. 6 peal, 52 id. 271 (18661; Harris's Estate, 74 id. 463 (1873];
Walker v. Griffin, 11 Wheat. 375 (1836).
> Koehler v. HUl, 60 Iowa, 557, 5B6 (1883), Seevers, J. ■> Lewis's Appeal, 89 Pa. 513 (1879). See also 37 Ala.
^SeeSBl. Com. 180. 208; 20 Conn. 122; 120 Mass. 135; 46 Md. 186;, 37 Miss.
= Corwin v. Hood, 58 N. H. 402 (1878); Se Swigert, 119 69; 46 N. H. 439; 30 N. J. E. 595; 33 id. 520; 70 N. Y. 512;
HI. 89 (1886). 33 Ohio St. 338; 104 Pa. 037; 10 Gratt. 275; 4 Ired. B.
' Pohalski v. Mutual Life Ins. Co., 36 N. Y. Super. Ct. 244; 6 id. 324; 6 id. 437; 10 Ves. 166; 8 Beav. 679; 4
853 (1873); affirmed, 56 N. Y. 640 (1874). Kent, 375; Roper. Leg. 88, 156.
= L. cequalis: ceguus, even, level, exact; jiist, right, ' 2 Bl. Com. 193; 5 Cow. 221.
fair. " L, mqmtas, the quality of being cequus, even, level,
"Stewart v. Lehigh Valley E. Co., 38 N. J. L. 517 equal, q. v.
(1875). ' S. aine. Ancient Law, p. xxiv.
 EQUITY 407
EQUITY
made up of the decisions of the judges of the istering the principles of equity : as when it
English court of chancery in the exercise of is 'said that equity will reform an instru-
their extraordinary jurisdiction. See further ment, or will afford relief or redress.
Chancery. And "equities" is often employed to de-
" In this sense, equity is wider than law, and nar- note the several rights or interests, whatever
rower than natural justice, in the extent of the sub- they may be, belonging to one person or
ject-matters within its jurisdiction : it cannot he defined
in its content otherwise than by an enumeration of party, which will receive recognition and
these matters." enforcement in a court of equity.!
Not the chancellor's sense of moral right nor of " This court held that there was no equity in the
what is equal and just, but a complex system of estab- bill, on the ground that, if the plaintiff had any right
lished law.' of action for money had and received, it was an
action at law." ' See Dbmokber, General.
That portion, of remedial justice exclu-
sively adm^inistered by a court of equity, as Cotirt of equity. The essential differ-
ence between a court of equity and a court
contradistinguished from the portion exclu-
of law consists in the different modes of ad-
sively administered by a court of common
ministering justice in them, in the modes of
law.2
In the most general sense we are accustomed to proof, of trial, and of relief. ^
call that equity which, in human transactions, is A court of equity — (1) adapts its decrees to all the
founded in natural justice, in honesty and right, and varieties of circumstances which may arise, and ad-
which properly arises ex CBquo et bono. In this sense justs them to all the peculiar rights of all the parties
it answers precisely to the definition of justice, or in interest; whereas a court of common law is bound
down to a fixed and invariable form of judgment in
natural law, given by Justinian in his Pandects. And
the word jus is used in the same sense in the Eoman general terms, altogether absolute, for the plaintiff
law. . . It would be a great mistalce to suppose that or the defendant. (2) It can administer remedies for
rights which a court of common law does not recognize
equity, as administered in England and America, em-
at all; or, which, it recognized, are left wholly to the
braced a,jurisdiction as wide and extensive as that
which arises from the principles of natural justice conscience and good-will of the parties. Such are
trusts, many cases of losses and injuries by mistake,
above stated. Probably the jurisprudence of no civil-
ized nation ever attempted so wide a range of duties
accident, and fraud; cases of penalties and forfeit-
for any of its judicial tribimals. Even the Eoman ures; cases of impending irreparable Injuries, or med-
itated mischiefs; cases of oppressive proceedings,
law, which has been justly thought to deal to a vast
extent in matters ex mqno et bono, never affected so undue advantages and impositions, betrayals of confi-
bold a design. On the contrary, it left many matters dence, and unconscionable bargains. (3) Eemedies in
of natural justice wholly unprovided for, from the a court of equity are often different, in nature, mode,
difficulty of framing general rules to meet them, and and degree from remedies in a court of law, even when
from the doubtful nature of the policy of attempting each has jurisdiction over the subject-matter. Thus,
to give a legal sanction to duties of imperfect obliga- a court of equity, if a contract is broken, will often
compel specific performance; whereas a court of law
tion, such as charity, gratitude, and kindness, or even
to positive engagements of parties, where they are not can only give damages for the breach. So, a court
founded in what constitutes a meritorious considera- of equity will interfere by way of injunction to pre-
tion. . . A stUl more limited sense of the term is vent wrongs; whereas a court of common law can
that in which it is used in contradistinction to strict grant redress only, when the wrong is done. (4) The
law — strictum et sunimum jus. Thus, Aristotle has modes of seeking and granting relief differ. A court
defined the very nature of equity to be the correction of law tries a contested fact by means of a jury; and
of the law, wherein it is defective by reason of its uni-the evidence is generally drawn from third persons,
disinterested witnesses. But a pourt of equity tries
versality. Itis of this equity, as correcting, mitigat-
causes without a jury; and, addressing itself to the
ing, or interpreting the law, that, not only civilians,
to
but common-law writers, are most accustomed conscience, requires the defendant, under oath, to
sppak.' give his knowledge of the facts stated m a bill in the
te the nature of a bill of discovery,* q. v.
The general purpose of equity is to modera
bring it
Vigor of the law, supply its deficiencies, and Perhaps the most general, if not the most
y with conscience and moral justice." See
precise, definition of a court of equity is, that
into harmon
" Conscience.

The term " equity " is also used, elliptic- it has jurisdiction in cases of rights, recog-
admin- nized and protected by the municipal juris-
ally, for a court of equity or a court
i See 1 Pomeroy, Eq. § 146.
'' ley,I Savings Institution v. MalOn, 33 Me. 366 (1844), Shep-
J. n^tna Life las. Co. o. Middleport, 134 U. S. 547
s [1 Story, Equity Jurisprudence, § 35. Com. J.
s 3 Bl.Miller,
(1888), 426.
= 1 Story, Bq. §§ 1-3, 6, 8. See also 1 Pomeroy, Eq.,
pp. 36-38, 308-21. 4 1 Story, Eq. §§ 28-31. See also 1 Pomeroy, Eq.
* 3 Pars. Contr. 363.
§§ 129^-
 408
EQUITY
EQUITY

prudence, where a plain, adequate, and affords the only test of equitable jurisdiction, and the
complete remedy cannot be had in the courts application of this principle to a particular case must
depend altogether upon the character of the case as
of common law.i
disclosed in the pleadings.^
In America, this brancli of jurisprudence has Where there is plain, adequate and complete relief
grown up chiefly since the formation of the National
at law, the defendant has a right to a trial by jury.^
government. It foUqws ttie model of the English The office and jurisdiction of a court of equity, un-
court of chancery; except that, in some States, and less enlarged by express statute, are limited to the
in the National tribunals, it is administered by the
protection of rights of property. It has no jurisdic-
common-law courts; in some the jurisdiction is very tion over the prosecution, the punishment, or the par-
imperfect, in others scarcely known.^* don of crimes, or over the appointment and removal
The great advantage possessed by a court of equity of public officers. To assume such a jurisdiction would
is not so much in its enlarged jurisdiction as in the be to invade the domain of the courts of common law,
extent and adaptability of its remedial powers. Gen- or of the administrative department of government.-
erally its jurisdiction is as well defined and limited as
Any jurisdiction over criminal matters that the Eng-
that of a court of law. It cannot exercise jurisdiction lish court of chancery ever had became obsolete long
when there is an adequate and complete remedy at ago, except as incidental to its peculiar jurisdiction
law. It cannot assume control over that large class for the protection of infants, or under its authority to
of obligations called imperfect obligations, resting issue writs of habeas corpus for the discharge of per-
upon conscience and moral duty only, unconnected
sons unlawfully imprisoned. ^
with legal obligations. Generally its jurisdiction de- Equity does not enjoin against a crime as a crime.
pends upon legal obligations and its decrees can only But injunctions have often been granted against
enforce remedies to the extent and in the mode estab- acts injurious to individuals, though they have also
lished by law. It cannot, by avowing that "there is a amounted to a crime against the public*
right but no remedy known to the law, create a rem-
edy in violation of law, or even without authority of The equity jurisdiction of the Federal courts is de-
rived from the Constitution and laws of the United
law. It acts upon established principles not only, but States, and is not affected by State statutes. Section
through established channels.^ 913 of the Revised Statutes, which declares that the
Courts of law and of equity are independent. They modes of proceeding in equity causes shall be accordr
act upon different principles, and, except where some ing to the principles, rules, and usages which belong
recognized ground of equity jurisdiction is concerned, to courts of equity, refers to the principles, rules, and
are each alike boimd to recognize the validity and usages by which the English court of chancery was
conclusiveness of the record of what the other has
done. Equity, in such cases, does not contradict but governed at the time of the passage of the 'Judiciary
supplements. It does in this way what right and jus- Act in 1789.*
The test of equity jurisdiction in the Federal
tice require, and what, from, the inflexibility of the
courts— namely, the inadequacy of the remedy at
principles upon which a court of law proceeds, it could law — is the remedy which existed when the Judiciary
not do.* Act of 1789 was adopted, imless subsequently changed
When a court of equity has once acquired jurisdic-
tion of a cause it may go on to a complete adjudica- by The
Congress.^
practice in a court of equity is regulated by
tion, even to the extent of establishing legal rights and
law or rule, and cannot' be varied by the agreement of
granting legal remedies.^ parties.'^ See Probate, Court of.
A too severe application of the common-law rules
forced the courts of chancery into existence in Eng-
Bill in equity. The document by which
land. The body of the chanceiy law is nothing more a suit is begun in a court of equity.
than a system, of exceptions ; of principles applicable Is in the style of a petition; and in the nature of a
to cases falling within the letter, but not within the declaration at law. Sets forth the circumstances of
intention of particular rules. The exercise of equity the case at length, alleging that a trust relation exists,
powers, in every government of laws, is conclusive or that some fraud, accident, mistake, or peculiar
proof of a necessity that they be lodged somewhere. hardship exists or has been or is attempted; avers
Bveiy rule, from its universality, must be defective. want of adequate relief at law ; asks for a subpcena
A legislature can do little more than mark out general
principles; their application, as well as the more mi- ^Watson V. Sutherland, 5 Wall. 79 (1866), Davis' J.;
nute details, must in general be left to the courts, as Buzard v, Houston, 119 U. S. 351-52 (1886), cases.
cases arise. ^ 2 Hipp V. Babin, 19 How. 378 (1S56 ; Parker v. Winni-
The absence of a plain and adequate remedy at law piseogee, &c. Co., 3 Black, 551 (1868), cases; Smith u,
Bourbon County, 137 U. S. Ill (1888).
1 1 Story, Eq. § 33. 5 Be Sawyer, 124 U. S. 210 (1888), cases, Gray, J.
2 1 Stoiy, Eq. §§ 54r^8. * Sparhawk v. Union Passenger R'y Co., 54 Pa. 413
3 Reese v. City of Watertown, 19 Wall. 131-33 (1873), (1867), Strong. J.
Hunt, J. 6 Strettell v. Ballou, 3 McCrary, 47 (1881), McCrary, J. ;
1 Tilton V. Cofield, 93 U. S. 167 (1876), Swayne, J. Boyle V. Zacharie, 6 Pet. 658 (1833); 3 Wheat. 312; 4 id.
e Walters v. Farmers' Bank, 76 Va. 18 (1881) ; 1 Story, 115; 13 How. 271; 3 Black. 551; 1 McCrary, 163.
Eq. § 65; 1 Pomeroy, Eq. § 181. « McConihay u. Wright, 131 U. S. 306 (1887).
« Pennock v. Hart, 8 S. & E. *378 (1833), Gibson, J. ^Nickerson v. Atchison, &c. R. Co., 30 F. R. 86 (1880)t
 409
EQUITY
EQUITY
to compel respondent tp answer the charges, and, per- rights and " legal " injuries. Eights which are recog-
haps, for an injvmction. Calls into court as parties all nized and protected, and wrongs which are redressed,
persons interested in the subject-matter. Should con- by the latter courts only, are called "equitable"
tain no scandalous or impertinent matter. Filing the rights and ' ' equitable "injuries. The former are said
hill is followed, in different suits, by service of the to be rights and wrongs at common law, and the rem-
subpoena, sequestration, appearance, demurrer, plea edies, remedies at common law; the latter, rights and
to the jurisdiction or to the person, answer, amend- wrongs in equity, and the remedies, remedies in
ments, supplemental bills, crossbills, decree or refer-
ence to a master for a report as to the tacts and the equity.'
It is customary to speak of "equitable"
form of a decree, exceptions to the report, final hear-
ing, final decree, bill of review, appeal to a higher (and legal) — action, assets, assignment, con-
, court. See further Bill, IV. sideration, conversion, defense, estate, estop-
Better equity. A claim to property su- pel, execution, interest, jurisdiction, levy,
perior, incontemplation of a court of equity, lien, mortgage, owner, plaintiff, remedy,
to another claim. title, value, waste, qq. v.
In this category is a second mortgagee who has no In the Federal courts, the distinction between legal
knowledge of the existence of a prior unrecorded and equitable proceedings is strictly maintained; dis-
mortgage. tinct proceedings must be instituted for the enforce-
Countervailing equity. Such equity as ment of equitable rights.'
Separate courts of equity exist in Alabama, Dela-
offsets or counteracts another equity ; an ad- ware, Kentuoly, Maryland, Mississippi, New Jersey,
verse counter-balancing right or equity. and Tennessee. In Arkansas, Connecticut, Florida,
Equal equity. Equality of equitable Georgia, Illinois, Iowa, Maine, Massachusetts, Mich-
right. igan, New Hampshire, North Carolina, Oregon, Penn-
Exists between persons who have been equally in- sylvania, Rhode Island, Texas, Vermont, Virginia, and
nocent and equally diligent, i West Virginia, chancery powers are exercised by th©
Equity of a statute. The intention of judges of the common-law com-ts. In the other
States, the distinction between actions at law and
the law-maker, as evinced by the spirit and suits in equity have been abolished, but certain equi-
reason of an enactment. See further Stat- table remedies are still administered under the statu-
ute. tory form of the civil action."
In a given case equity jurisdiction may be exclusive
Equity of redemption. The reasonable
of the law, auxiliary to it, remedial of it, or concurrent
time within which a mortgagee may redeem with it — that is, executive, adjustive, or protective.*
his estate after forfeiture. See further Re- Maxims embodying fundamental piinciples upon
deem. which equity jurisprudence rests, are: Equity, once
having had, does not lose, jurisdiction; foUows the
Equity of settlement; wife's equity.
See Settle, 3. law — in affording redress;' assists the vigilant; suf-
fers no right to be without a remedy; suffers tlie law
Secret equity. An interest or claim, to prevail, where there is equal equity or equality;
cognizable in a court of equity, of which no- delights in equality — is equality;" requires that he
tice has been withheld from one or more who seeks equity must do equity — must come with
clean hands: ' as to the particular transaction in re-
interested persons or from the public gener- view: ^ looks on that as done which ought to be
ally.
done" — imputes intention to fulfill obligations; de-
Equitable. 1. According to natural lights to do justice, and that not by halves. Nothing
right or justice; just and right in a particu- can call forth a court of equity into activity but con-
lar case, as distinguished from the strict rule science, good faith, and reasonable diligence, i"
See further terms in this title, and, especially, Acci-
of a general, positive law. Opposed, inequi-
table. ' 1 Story, Eq. § 25.
2. That which can be sustained or made 2 See Gibson v. Chouteau, 13 Wall. 102 (1871).
! See Bispham, Eq. § 16; 1 Story, Eq. §§56-58.
available or effective in a court of equity, or < Smith, Manual Bq. 33.
upon principles of equity jurisprudence.^ » lOT U. S. 11 ; 110 id. 284, 281.
Opposed, legal. «101 U. S. 406; 109 id. 612.
The remedies for the redress of wrongs and the en- M08U. 8.225; 109 id. 526.
"26 Wend. 160; 1 Black, 93.
forcement of rights are: (1) those which are adminis-
tered in courts of common law; and (3) those which "3 Wheat. 678; 60 Conn. 111.
are administered in courts of equity. Rights which are "> 1 How. 189, 168; 96 U. S. 160. See generally 1 Story,
recognijied and protected, and wrongs which are re- Eq. §§ 59-74; 1 Pomeroy, Eq., Ch. I, § 363; early English
dressed, by the former courts are called "legal" equity (uses and contracts), 1 Law Quar. Rev. 162-74
(1886), O. W. Holmes, Jr. ; common law and conscience
' See Boone v. Chiles, 10 Pet. *210 (1836J. hi the ancient court of chancery, ib. 443-54 (1885), L.
» [Abbott's Law Diet. Owen Pike; the administration of equity through
 ERROR
EQUIVALENT 410

dent; Adequate, 2; Discovery, 6; Election, 3; Fic- EQUIVOCAL. See AmbiguItt.

tion; Fraud; Hearing; Ignobanoe-; Issue, 4; Mas- EE.. The Teutonic form of the Latin or
ter, 4; Mistake; Pabty, 3; Patent, 2; Peace, 1, Bill of; in terminations.
Performance, Specific; Prejudice, Without; Quia
Annexed to words of English origin. See Ob, 1.
Timet; Eeceiver, 2; Reform; Relief, 3; Rescission;
Satisfaction, (2); Sequestration, 3; Set-off; Trust, 1; ERASURE. See Alteration, 2.
Use, 3. ERECT.i 1. To lift up, build, construct:
EQUrVALENT.i 1, adj. (1) Equal in as, to erect — a building, a fixture.
force or power, in effect or import : as, equiv- A house cannot be said to be erected until substan-
tially completed^ before that it is a structure, not a
alent — terms, stipulations.
"building erected " for a purpose."
(3) Equally good : as, the equivalent chem- Removing a building is not erecting it; 3 nor is ele-
ical action of fluids. ^ vating and materially enlarging it.* But erecting or
3, n. A device or machine operating on repairing may include pamting.s
the same principle and performing the same An erection is a construction.*
functions, by analogous means or equivalent A public grant conditioned on the " erection " of
buildings is satisfied by the purchase of buildings al-
combination, as another device or machine,' ready erected.' See Structure.
Only those things are equivalents which perform
3. To found, form, institute, establish,
the same functions in substantially the same way.
, Thus, celluloid is not an equivalent for hard rubber.* create : as, to erect — a new county, a district
The substantial equivalent of a thing is the same as for election or judicial purposes, a corpora^
that thing itself. Two devices which perform the
same functions in substantially the same way, and ERIE, LAKE. See Lakes.
accomplish substantially the same result, are the tion.8
same, though they differ in name and fonu.^ ERMINE. 1. The mustela erminea, Ar-
A patentee is protected against equivalents for any menian rat ; the fur of which is pure white
in winter time.
part of his invention. But a process is not" infringed
by the use of any number of its stages less than all of 2. The dignity of judges, whose state
them." robes, lined with the fur of the ermine,
Equivalents may be claimed by the patentee of an
invention consisting of a combination of old elements are regarded as emblematical of purity.'
or ingredients, as well as of any other valid patented Whence judicial ermine, for judicial in-
improvement, provided the arrangement of the parts tegrity. See Gown, 3.
comprising the invention is new, and wiU produce a ERRATUM. L. Error.
new and useful result. The term as applied to such
an invention is special in its signification and some-
In nullo est erratum. In nothing is
what different from what is meant when applied to an there error. The emphatic words of a joinder
invention consisting of a new device or an entirely of issue on an assignment of error, as origi-
new machine.' nally expressed.
An equivalent for an ingredient of a combination ' By this plea the defendant admits a fact regularly
of parts that are old must be one which was known at
assigned. 1° The plea is in the nature of a demurrer."
the date of the original patent as a proper substitute See Error, 2 (3), Writ of.
for the ingredient left out. An equivalent in such case
performs the same function as the other.' See Com-
ERRONEUS. See Error, 3 (2), Erro-
neous.
bination,;1 Patent, 2.
ERROR. 1. Lat. A wandering; a mis-
common-law forms, ib. 455-65 (1885), S. G. Fisher; brief take ;an error. Compare Erratum.
survey of equity jurisdiction, 1 Harv. Law Rev. 55-73,
111-131, 355-87 (1887), cases, C. C. Langdell.
1 L. cequus, equal, valere, to be strong, be worth. ^ L. erectus^ set up, upright: erigere, eregere, to
"Tyler v. City of Boston, 7 Wall. 330 (1868). raise or set up.
a See McCormick v. Taleott, 30 How. 405 (1857), Grier, 2 McGary v. People, 46 N. Y. 161 (1871), Allen, J.
Justice. 'Brown v. Hunn, 27 Conn. 332 (1858).
* Goodyear Vulcanite Co. v. Davis, 103 U. S. 230, 222 * Douglass V. Commonwealth, 2 Eawle, 264 (1830).
<1880), Strong, J. s Mar'tine v. Nelson, 51 111. 423 (1869).
« Union Paper-Bag Machine Co. v. Murphy, 97 U. S. » Trask v. Searle, 181 Mass. 231 (1876); 8 Allen, 159.
136 (1877), Clifford, J. ' Kief er v. German American Seminary, 46 Mich. 641
° Goodyear Co. v. Davis, supra; Crouch v. Boemer, (1881).
103 U. S. 797 (1880). «1 Bl. Com. 469-71, 472, 474.
' Imhaeuser v. Buerk, 101 U. S. 655 (1879), Clifford, J. ' [Webster's Diet.
« Gill V. Wells, 22 Wall. 2, 28 (1874), cases, Clifford, J. 1° Burkholder v. Stahl, 58 Pa. 377 (1868).
See Gage v. Herring, 107 U. S. 617 (1882); 1 WaU. 673; 1' Bragg V. Danielsou, 141 Mass. 195
3 id. 328. 532; 7 Wend. 55.
 ERROE 411 ERROR

Communis error facit jus. A common Erroneous. Deviating from the law.
error makes the law. Long-continued prac- What is " illegal " lacks authority o£ or support
tice, though originally erroneous, establishes from law. " EiToneous rulings "' always mean such
the rule of law. as deviate from or are contrary to law. " Erroneous ""
alone never designates a corrupt or evil act. " Erro-
A maxim or procedure, piirely; briefly stated as
the rule of communis ct'ror. neous and illegal " means deviating from the law be-
cause of a mistaken construction.'
A received doctrine stall not be overturned or
An " erroneous judgment " is rendered according to
abandoned, even though its soundness in principle the course and practice of the courts, but contrary to
may be questioned. " It is more material that the
law should be settled than how it is settled." ' law. An "irregular judgment" is contrary to the
course and practice of the courts."
" We are not inclined by a technical exposition of (3) A writ of error : as in saying that error
an act to unsettle rights honestly acquired and upon
which many pei-sous have rested for years." ^ lies or does not lie, that a judgment may be
The executive branch of a government must neces- reversed or was reversed "on error," and in
sarily construe the laws which it executes; and its speaking of the plaintiff and the defendant
construction, which has been followed for yeai-s, with-
out interference by the law-making power, should not "in error.''
be departed from without the most cogent reasons. A Assignment of error; specification of
long-continued practice under such circumstances error. The statement of the error which an
ripens into an authoritative construction. The law, in inferior tribunal is alleged to have com-
its regai"d for the public good, goes so far, in some mitted; also, the paper containing such
cases, as to hold that communis error facit jus; but
statement.
coiu-ts should be slow to set up a misconception of the
law as the law.^ Spoken of as "cross," when made upon the same
matter as is alleged for error by the opposite party;
Long acquiescence in repeated acts of legislation on
particular matters is evidence that those matters have as "general," when upon more matters than one;
been generally considered by the people as properly and as "specific," when upon some one matter in
within legislative control. Such acts are not to be set particular. General assignments of error are not
tolerated.
aside or treated as invalid, because upon a careful
consideration of their character doubts may arise as Court of errors. A court for correcting
to the competency of the legislature to pass them.* errors made in administering the law in sub-
See Consensus, Tollit, etc. ; Exposmo, Contempo- ordinate tribunals. See Paper, 5.
ranea, etc.
Error coram nobis; error coram
2. Eng. (1) A mistake ; an omission.
Clerical error. A failure to reduce the vobis. When a writ was had to re-examine
a judgment, in a civil or criminal cause, in
intent of paities to writing, not affecting the
intent itself. the court of king's bench, by that court it-
Attributable to carelessness or miswriting; and dis- self, it was called " a writ of error coram
regarded or corrected. nobis, " that is, error before us — the sovereign ;
Also, a mistake of a clerk in preparing a when to re-examine a judgment rendered in
record. See Misprision, 2. the common pleas, in a civil case only, by
(3) An unintentional deviation from the the king's bench, it was called " a writ of
truth in a matter of fact, and from the law error coram vobis," that is, error before you —
in a matter of opinion or decision. the chief justice and associates.
The writ coram vcbis was also brought before the
Such irregularity, misconception, or wrong
same court in which the error was committed to sup-
application of the law as directs that the pro- ply or rectify a mistake of fa«t not put in issue or
ceeding should be reversed on appeal or writ passed upon by the court; such as the death of a party
of error.
when the judgment was rendered, coverture of a
female party, infancy and failure to appoint a guard-
' Forsythe, Hist. Lawyers, 395, quoting Lord Eldon. ian, error in the process, or mistake of the clerk. But
"KostenbadCT v. Spotts, 80 Pa. 437-38(1876); 13 id. if the error was in the judgment itself the writ did not
661; 78 id. 308; Gelpckes). Dubuque, 1 Wall. 175 (1863); lie.
Hemdon v. Moore, 18 S. C. 334 (1882): 2 Whart. Ev. § 1243. The two expressions are now applied, respectively,
' Harrison v. Commonwealth, 83 Ky. 170 (1885); Rob- to a writ to review proceedings, not carried to judg-
ertson u Downing, 127 U. S. 613 (1888), cases. ment, had in the same court (before us), and to a
* Maynard v. Hill, 125 U. S. 204 (1888), Field, J., on writ issued to bring up for revision a record of what
the power of a legislature to grant a divorce by a was done in an inferior court.
special act; also, Cronise v. Cronise, 54 Pa. 261 (1867).
AppUed where the practice of a colony differed from 1 [Thompson i'. Doty, 73 Ind. 338 (1880), EUiott, J.
SAVolfe V. Davis, 74 N. 0. 599 (1876), Reade, J. See
the requirements of the law of England as to a wife's
acknowledging a deed,— 1 Dallas, *13, 17. Koonce v. Butler, 84 id. 223 (1881).
 ERROR ESCAPE
412

What was formerly done by the writ coram nobis only upon the record — which is removed into the
is now attained by motion and affidavit, i supervisoiy tribunal; is the more usual mode of re-
Error in fact. Such matter of fact, not moving suits at common law, and the more technic-
ally proper where a single point of law, and not the
appearing on the record, as renders the judg-
whole case, is to be re-examined.*
ment entered unsupportable in law; as, in- Must be regular in form and duly served. To oper-
fancy or coverture in a party. ate as a supersedeas and stay of execution, must be
A fact that might have been taken advantage of in issued and returned within a given period from the
the court below is not assignable for error; nor is a
date of the judgment."
fact that contradicts the record.^ On review nothing is error that is not made to ap-
Error in law. Any substantial defect in pear on the face of the record. Error will be inferred
the proceedings not cured by the common only when the inference is inevitable. Every error
law nor by statute, injurious to and not apparent is open to re-examination. ^
A Writ of error lies in all cases where a court of
waived by the complainant, and made to ap- record has given a " final " judgment, or made an
pear on the record, is assignable for reversal : award in the nature of a judgment, or where a judg-
also, any incorrect decision on a right of ment has been arrested, or, on an appeal from a jus-
either party, as presented by the pleadings, tice, has been dismissed; also, on an award of execu-
special verdict, bill of exceptions, or opinion
filed. Proceedings in a com*t of error assimilate them-
tion.* selves to proceedings in a court of original jurisdiction.
Reviewable errors in law are: those apparent The writ of error in a general way recites the cause of
upon the face of the record, — available on general complaint, and it is left to the assignments of error to
demurrer or in arrest of judgment ; and, those brought specify it as a declaration specifies the cause of action.
up by a bill of exceptions,— objections to the admis- The plea in nulla est erratum raises the issue. Like
sion or rejection of evidence and errors in the charge a declaration, therefore, each assignment must be
of the court. complete in itself, that is, be self-sustaining. What-
Error of fact. When a fact is unknown, ever is part of it must be parcel of it. The burden
or is erroneously supposed to exist. rests upon the plaintiff to make out his assignments
affirmatively. ° See Erratum.
Error of law. When a person is ac- A writ of error lies from inferior criminal jurisdic-
quainted with the existence or non-existence tions to the court of king's bench, and from the king's
of a fact, but is ignorant of the legal conse- bench to the house of peers; and may be brought for
quence, he is under an error of law.* See "notorious mistake " in the judgment or other part of
Ignorance. the record, or for an irregularity, omission, or want of
form, in the process. . . To reverse a judgment in
TSo «rror. The form of the judgment of the case of a misdemeanor, allowed, not of coiuse, but
the court of appeals of Connecticut, affirm- on sufficient probable cause shown to the attorney-
ing the decision of the lower court. general,— then grantable of common right and ex
Writ of error. A commission by which debito Justitice. But a writ to reverse an attainder in
a capital case is only allowed ex gratia; and not with-
the judges of one court are authorized to ex-
out express warrant under the king's sigh-manual, or
amine a record upon which a judgment was
at least by consent of the attorney -general.^
given in another court, and, on such exam- See Appeal, 3; Certiorari; Exceptions, 4, Bill of;
ination, to afSrm or reverse the same accord- Prosecute, With effect; Review, 3, Bill of; Super-
sedeas.
ing to law. 4
An original writ, and lies only where a party is ag- ESCAPE.7 1, n. (1) Flight from custody,
grieved by some error in the foundation, proceedings, of a person under lawful arrest.
judgment, or execution, of a suit in a court of record. 3
The supervisory court is called " the court of * Cohens v. Virginia, ante,
error."
In the nature of a suit or action, when to restore 2 Slaughter-House Cases, 10 Wall. 290 (1869), cases;
one to the possession of a thing withheld from him. Kountz V. Omaha Hotfel Co., 107 U. S. 381-85 (1882);
Murdock v. City of Memphis, 20 Wall. 621 (1876).
Submits the judgment to re-examination; operates
3 6 Wheat. 409-11, ante; 20 How. 437; 16 Wall. 363,
J Pickett V. Legerwood, 7 Pet. ] 47-48 (1833); Exp. 386; 100U. S. 690.
Lange, 18 Wall. 195 (1373), cases; Bronson v. Sohulten, < Pontius V. Nesbit, 40 Pa. 310 (1861).
104 U. S, 410, 416-17 (1881); 1 Flip. 343; 3 Chitty, Bl. Com. » Burkholder v. Stahl, 68 Pa. 376 (1868), Thompson,
406; 4 Crim. Law Mag. 364, 371; 34 Pa. 95. C. J. ; Bragg v. Danielson, 141 Mass. 195 (1886).
■^ 2 Tidd, Pr. 1169; 2 Bac. Abr. 492. • 4 Bl. Com. 391 ; 4 Burr. 2550. See also 3 Ball. 327; 7
s [Mowatt V. Wright, 1 Wend. 360 (1838), Savage, 0. J. Cranch, 111; 61 Ala. 484; 3 Col. 293; 6 Fla. 289; 13 Ga.
« Cohens v. Virginia, 6 Wheat. 409 (1881), Marshall, 148; 20 id. 535; 1 Wash. T. 319.
Chief Justice. 'F. escaper, to slip out of one's cape: L. excappa,—
^Suydam v. Williamson, 20 How. 437 (1857), Clif- Skeat. F. escamper^ to flee: Ger. champf^ combat, —
ford, J. Webster.
 ESCHEAT 418
ESQUIRE

chance or accident, now denotes obstruction of the

(2) Allowing any person lawfully in con- course of descent, and determination of tenure, by
flnement to leave ihe place, i some unforeseen contingency ; in which case the land
Actual escape. Complete corporal free- naturally results back, by a kind of reversion, to the
dom. Constructive escape. Any unau- original grantor.* See Descent.
thorized relaxation of custody. 3. In the United States, a reversion of
NegKgent escape. Effected without the property to the State in default of a person
who can inherit it.
keeper's knowledge or consent. Voluntary
escape. Expressly consented to by the Depends upon positive statute, which makes the
state the heir of the property. Nothing about it but
keeper. 2 the name is feudal.^
Any liberty given for the briefest period, and not
sanctioned by law, is tin escape. But the court must Eseheator. An officer who takes charge
have had jurisdiction, the process have been regular, of escheated estates for the government.
.and the place and time proper. At common law an ESCROW.' An instrument delivered to
escape is a misdemeanor in the prisoner; and, if the
offense is a felony, a volmitary escape is a like felony, a third person to hold till some condition is
and a negligent escape is a misdemeanor, in the offi- performed by the proposed grantee. A scrowl
cer. An escape resulting from an act of God or of the
or writing not to take effect as a "deed" till
public enemy will be excused.^ the condition is performed.*
Formerly, when imprisonment was the only mode As defined by the common law, a written instru-
to enforce satisfaction of a judgment for money, to ment delivered to a third person to take effect upon
permit an escape was to lose the amount of the debt. the happening of a contingency. Originally applied
Hence, on an escape, the sheriff was held for the
to a deed; then to written contracts generally ."
whole debt.* Nothing passes unless the condition is performed.
An officer of the United States who voluntarily suf- There can be no delivery, as an escrow, to the grantee
fers a prisoner in custody under the law of the United himself. When justice requires, it may take effect by
States to escape shall be fined not more than two relation back to the first delivery.' See DELrvERT, 4.
thousand dollars or imprisoned not more than two ESNECY. Eldership; the privilege of
years, or both.*
3, V. To be passed by unobserved ; to be the eldest. The right in the oldest copai-cener
first to choose a purpart.
overlooked.
ESPLEES.' The products of the land:
" To escape taxation " does not mean tb be taxed
insufficiently, but to have avoided notice, to be passed herbage, hay, grain ; rents, services, etc.*
unobserved, to have evaded taxation.* ESQUTRE.* 1. A title of dignity next
3, n. Means of retreat. See Defekse, 1 ; below knight, and above gentleman.
Fire, Escape. 3. A title acquired by virtue of office ; as,
ESCHEAT.'' In feudal law, the deter- justices of the peace, the higher officers of
mination of the tenure or dissolution of the the courts, and others who bear any office of
bond between lord and tenant from extinc- trust under the crown.
tion of the blood of the latter by natural or 3. A title given to a member of the legal
civil means.*
Thus, if the tenant died without heirs of his blood, 1 3 Bl. Com. 244.
or if his blood was corrupted by commission of
treason or felony, whereby the inheritable quality ! Wallace v. Harmstad, 44 Pa. 601 (1863). See Hughes
was blotted out, the land " fell back " to the lord of V. State, 41 Tex. 17 (1874); 4 Kent, 424; 1 Washb. E. P.
the fee— the tenure being determined by breach of 24, 27; 3 id. 443; Williams, E. P. 131.
3 F. escrowe, scroll.
the condition.' See Attaindek.
• [3 Bl. Com. 307.
The word, originally French or Norman, signifying
« Alexander v. Wilkes, 11 Lea, 325 (1883), Cooper, J.
• See County of Calhoun v. American Emigrant Co.,
1 2 Bish. Crim. L. §§ 917, 1026; 1 Kuss. Cr. 416; Colby 37
93 U S. 127 (1876), cases; Shoenberger v. Hackman,
V. Sampson, 6 Mass. 'Slg (1809), Parsons, 0. J. Pa 94(1860); Baum's Appeal„11 3 id. 58,65(1886 ), cases;
"3 Bl Com. 415, 290, 165. See also 32 Ark. 126; 8 Daggett V. Daggett, 143 Mass. 520 (1887), cases;
28 Am.
Ired. L. 151; 25 N. H. 258; 46 N. J. L. 358; 89 Pa. 446; 3 Law Keg. 697-99 (1680), cases; 19 Cent. Law
J. 127-28
Head, 137. How. 73;
= 4B1. Com. 139. (1884) cases -Solic. Jour.; 4 Cranch, 219; 14 145; 34
59 Cal. 309, 630; 14 Conn. 270; 34 id. 93; 14 Ga.
4 Dow V. Humbert, 91 V. S. 300 (1875), cases. Ul 29; 77 id- 480; 29 Minn. 249; 30 id. 315; 2 Johns.
263;
»E. S. §5409. 492; 14 Ohio St. 309; Smith, Contr. 7.
26 N. Y.
• Lehman v. Robinson, 59 Ala. 240 (1877).
' Es-pleez'. L. espies: L. exple^-e, to fill up.
' 0. Eng. eschete: F. eschet, that which falls to one: 98 Cranch, 249; 9 Barb. 293; 11 S. & E.
•375.
escu:
■eshoir, to happen. See Cheat. • F. escuym-, escuier, a shield-bearer: ecu,
81 Bl. Com. 73.
L. scutum, a shield.
 ESTATE
ESSE
414

profession, by virtue of length of enjoy- ESTATE.i 1. Standing: condition, cate-

ment, i gory, state, status.
4. In the United States, a title of courtesy. 2. Position; rank in life; degree: as, an
Abbreviated Esq., 'Squire or Squire. addition of estate. 2 See Addition, 3; Nec-
ESSE. See In Esse. essaries.
ESSENCE. See Time. Estates of the realm. The three branches
ESSOIGN.^ In old law, an excuse for of the English legislature : the lords spiritual,
non-appearance. the lords temporal, and the commons.^
" Essoign-day " was for hearing such excuses, — the 3. (1) (Subjective idea.). Estate in lands,
first day of each tenn.s tenements, and hereditaments : such interest
ESTABLISH.* To settle certainly, fix
as the tenant has therein.*
permanently, what was before Uncertain, In Latin status, the condition or circumstances in
doubtful, or disputed; as, to establish a which the owner stands with regard to his property.*
boundary line.^ Does not import a fee or even «, freehold, but any
To set or fix firmly, settle or found perma- legal interest in land.**
The quantity of interest which a person
nently, erect something.*
Authority to establish a thing contains authority to has, from absolute ownership down to naked
do acts which shall produce or bring into existence
something; as, authority to establish a market." The condition,
possession. 6 in respect to property, of an individ-
In a grant of power " to establish " a market, a ual: as, in speaking of the estate of an insolvent or of
dispensary, etc., means to permanently create or a deceased person. Here, indebtedness, as well as
found.' ownership, is part of the idea. Debts and assets to-
To establish a company for any business means to gether constitute the estate; if an estate consisted of
make complete and permanent provision for carrying assets only, the expression insolvent estate would be
on that business. 8
A county seat i$ permanently established at a place a misnomer.'
(3) (Objective idea.) The thihg itself of
when placed there with the intention that it shall re- which one is owner ; any species of property,
main.* See County.
The right to establish a market includes the right
real or personal. Equivalent'' to the more
to shift it from place to place, as convenience de- technical.expression, " things real and things
mands; but gives no right to build one on the public
personal." More specifically, realty, land,
highway. '" Compare Peemanbkt.
"landed estate." ^
Power to establish includes the power to discon- Sometimes excludes realty; sometimes is a word
tinue post-offices, unless the exercise is restrained by
of mere local description, as, " my estate at" such a
In the Constitution the word is used in somewhat place. But when it can be construed to intend all
one's realty it carries a fee, as, in devises.*
different senses: "to establish justice" seems to Unless limited by some special epithet or some as-
mean to settle firmly, fix unalterably, dispense or ad-
sociation, construed to mean all one's property; but
minister justice; "to establish a uniform rule of nat- "real" or "personal" puts the matter beyond cavil.'"
uralisation, and uniform laws on the subject of bank-
ruptcy," isequivalent to to make or to form, and not
1 F. estat: L. statits; stare, to stand.
to fix or settle imalterably or forever; "to establish
post-offices and post-routes " means to create, found, !s See
State1 Bl.
V. Bishop, 15 Me'.
Com. 163, 157. 121 (1838).
and regulate; to "establish this Constitution" signi-
fies to create, ratify, confirm it.** See further Re- * 2 Bl. Com. 103; 66 Ga. 711; 2 WaU. 500.
ligion. 5 Inhabitants of Sunbury v. Inhabitants of Stow, 13
Mass. *464 (1816).
1 See 1 Bl. Com. 406. 'Jackson v. Parker, 9 Cow. 81 (1828), Savsige, C. J.;
2 F. essoine, excuse. Moody V. Farr, 33 Miss. 195 (1857).
» See 3 Bl. Com. 277. 'See Abbott's Law Diet., Estate, 4; Davis v. Elkins,
* F. establir: L. stabilis, steady, firm: stare, to stand. 9 La. 142 (1835).
» Smith V. Forrest, 49 N. H. 237 (1870), Nesmith, J. e See Sellers v. Sellers, 35 Ala. 241 (1859).
» [Ketchum v. City of Buffalo, 21 Barb. 298, 296 (1854); ' See Bates v. Sparrell, 10 Mass. 324 (1813); (Jodfrey
27 id. 260; 28 id. 65. V. Humphrey, 18 Pick. 539 (1837); Leland v. Adams, »
' Ketchum v. City of Buffalo,- 14 N. T. 361 (1856). Gray, 175 (1857), cases; Canedy v. Jones, 19 S. C. 301
8 Davidson v. Lanier, 4 Wall. 455 (1866). (1882).
» Newton v. Mahoning County, 100 U. S. 562 (1879); "> Hooper v. Hooper, 9 Cush. 128 (1851); Archer v.
Mead v. Ballard, 7 Wall. 290 (1863); Wright v. Nagle, Deneale, 1 Pet. 589 (1828); Cook v. Lanning, 40 N. J. E.
101 U. S. 796 (1879); 13 HI. 463. 372 (1885). See alsoS Cranch, 97; 2 MacA. 70; 2 Cranch,
J» Wartman v. Philadelphia, 33 Pa. 210 (1859). C. C. 640; 16 Conn. 1 ; 46 111. 32; 55 Me. 287; 32 Miss. 107;
" Ware v. United States, 4 Wall. 633 (1866). 14 N. J. L. 63, 68; 14 N. J. E. 61; 40, id. 36-37, 373; 6
" 1 Story, Const. § 454. .Johns. 185; 11 id. 366; 8 B. I. 384; 26 Tt. 260.
 ESTIMATE 415 ESTOPPEL

An estate may be viewed: I. As to the quantity ot A man shall always be estopped by his own deed,
interest,— measured by the duration and extent; and and not permitted to aver or prove anything in con-
is 1, freehold: which is (a) for the lite of the tenant, tradiction to what he has once solemnly and delib-
or (6) of inheritance — absolute or fee-simple, and lim- erately avowed. 1 ,
ited or fee-tail; 2, not o£ freehold: which is (a) for a A special plea in bar — when a man has
term of years, (6) at will, (c) at sufferance; 3, upon done some act or executed some deed which
condition, (a) expressed, or implied, (b) in pledge —
mortgage, (c) by statute merchant or staple, (d) by estops or precludes him from averring any-
elegit. thing to the contrary.2
n. As to the time the interest is to be enjoyed. This Estoppel by deed. By some matter
is; 1, in immediate possession; and 2, in the future, or contained in a valid sealed instrument.
in expectancy — (a) a remainder, preceded by a par-
ticular estate, (6) a reversion, preceded by a remainder, Estoppel by record. By adjudication
and executed or vested, or executory and contingent, of a competent court of record.
and Cc) an executory devise. Viewed as an admission or determination under cir-
m. As to the number and connections of the ten- cumstances of such solemnity that the law will not
ants. An estate is held 1, in severalty, 2, in Joint-ten- allow the fact so admitted or established to be after-
ward drawn in question between the same parties or
ancy, 3,in coparcenary, 4, in common.^
IV. As to the tribunal in which that interest or right their privies. To litigate the fact again would be to
will be recognized and enforced. When that is a court impeach the correctness of the former decision. The
of law, the estate is legal; when a court of equity, conclusion being indisputable, so are the premises."
equitable. Otherwise the same rules apply to these Collateral estoppel. The collateral deter-
estates: they are alike descendible, devisable, and mination of a question by a court having
alienable.''
See Condition; Copahcenart; Curtesy; Descent; general jurisdiction over the matter.* See
Adjudication; Record.
Dower; Entirety; Execution, 3; Fast, 1; Fee, 1;
Freehold; Life; Merger, 1; Perpetuity, 2; Privy, 2; Equitable estoppel, or estoppel in
Property; Remainder; Reversion; Separate, 2: pais. An estoppel by virtue of some act or
Severalty; Staple; Sufferance; Tail; Tenant; action not under seal nor of record in a
Trust, 1; Vest; Use, 2; Years, Estate for.
court.
ESTIMATE. Implies a computation or
" Equitable " is the modem epithet,— derived from
calculation. the courts of equity.
The particular idea intended to be expressed by the The doctrine that "what I induce my
word must be determined by the subject-matter under
consideration, together with the context of any perti- neighbor to regard as true is the truth as be-
nent instrument. Where a redeeming mortgagee stated tween us, if he has been mislead by my as-
in his afadavit that there was unpaid on the mortgage,
sev ration." 5
" as near as he could estimate," a specified sum, it was Proceeds upon the ground that he who has
held that this was equivalent to saying that he had been silent as to his alleged right when he
computed the sum.*
Where a tract of land, " estimated to contain 1,000 ought in good faith to have spoken, shall
acres," was sold by written agreement, for a price in not be heard to speak when he ought to be
gross, it was held that acquiescen ce for many years
silent.*
would raise a presumption that the purchaser under- Presupposes error upon one side and fault or fraud
stood that the sale was in gross; also, that where land upon the other, and some defect of which it would be
is exchanged for other land the liability of the vendor
inequitable for the party against whom the doctrine is
for a deficiency should not be enforced with the same
asserted to take advantage.'
strictness as in the case of a sale for money. The evi- The vital principle is, that he who by his language
dence did not disclose any fraudulent assurance calcu- or conduct leads another to do what he would
not
lated to deceive the purchaser.*
ESTOPPEL.^ 1. A stop; obstruction, 1 [a Bl. Com. 295.
bar; hindrance, preclusion. 3 3 Bl. Com. 308.

2. That which concludes, and "shuts

a 3 Burden v. Shannon, 99 Mass. 203 (1868), cases; Saw-
yer V. Woodbury, 7 Gray, 602 (1856).
man's mouth from speaking the truth." « * Small V. -Haskins, 26 Vt. 223 (1854), Redfleld, C. J.
" Kirk V Hamilton, 102 U. S. 70 (1880), Harlan, J.
1 2 Bl. Com. Ch. Vn-XH; 1 Ld. Cas. R. P. ix; 2 id. ix. "Morgan v. Chicago & Alton R. Co., 96 U.
S. 720
. States ,.v. Lee,
»Avery v. Durfrees, 9 Ohio, 147 (1839;; 5 Wall. 281; 16 Pet. (1870,
119Swayne,(1 83J.; 9)
Bank of United V ^13,
id. 229; 23 id. 125; 96 U. S. 312.
"Van Buskirk ti. Clark, 37 Hun, 203 (1886). 'Morgan v. Chicago, &c. R. Co., mpra;
Merchants
* Lawson v. Floyd, 124 U. S. 108 (1888), Miller, J. cases;
Nat Bankr. State Nat. Bank, 10 Wall. 645 (1870),
°F. estoper, to impede, stop. 108-9 (1886),
Leather Manuf. Bank v. Morgan, 117 U. S.
« Armfleld v. Moore, 1 Busb. L. 161 (N. 0., 1852): Lord cases; Continental Nat. Bank v. Bank
of Common-
Coke; Stebbins v. Bruce, 60 Va. 397, (^). wealth, 50N. Y. 583 (1872).
 ESTOPPEL 416 ESTOPPEL

otherwise have done, shall not subject such person to Where a party gives a reason for his conduct and
loss or injury by disappointing- the expectations, upon decision touching a thing involved in controversy, he
which he acted. . . A change of position would in- Is estopped, after litigation has begun, from changing
volve fraud and falsehood. This remedy is available the ground and putting his conduct upon another and
only for protection, and cannot be used as a weapon different consideration. ^
of assault. It accomplishes that which ought to be The only case in which a representation as to the
done between man and man, and is not permitted to future can be held to operate as an estoppel is when
go beyond this limit, i it relates to an intended abandonment of an existing
The primary ground of the doctrine is, that it would right, and is made to influence others, and by which
be a fraud to assert what one's previous conduct had they have been induced to act. An estoppel cannot
denied, when on the faith of that denial others have arise from a promise as to future action with respect
acted.' to a right to be acquired upon an agreement not yet
In application there must be some intended decep-
tion in conduct or declarations, or such gross negli- made. 2 parties and privies,^ but not, one not sui
Binds
gence as amounts to constructive fraud. But conduct juris, as, an infant,* nor a married woman.*
foimded on ignorance of one's rights seldom works Tlie principle is a means of repose ; it promotes fair
such result." dealing. It cannot be made an instrument of wrong
6ne should be estopped from asserting a right of or oppression, and it often secures justice where
property, upon which he has, by his conduct, misled nothing else could.* It is meant to prevent fraud; is
another, who supposed himself to be the owner, to invoked to hold one to facts as he alleged them, al-
make expenditures. It is often applied where one though false, and not to prove them different from the
owning an estate stands by and sees another erect im-
provements onit in the belief that he has the title or allegation.'
The meaning is not that equitable estoppels are
an interest in it, and does not interfere to prevent the cognizable only in courts of equity, for they are com-
V work or inform the party of his own title. There is in monly enforced in actions at law. But it does not fol-
such conduct a manifest intention to deceive, or such low, because equitable estoppels may originate legal
gross negligence as to amount to constructive fraud. as distinguished from equitable rights, that it may not
The owner, therefore, in such a case, will not be per- be necessary in particular cases to resort to a court of
mitted afterward to assert his title and recover the equity to make them available. All that can properly
property, at least without making compensation for be said is, that to justify a resort to a court of equity,
the improvements. But this salutary principle cannot it is necessary to show some ground of equity other
be invoked by one who, at the time the improvements than the estoppel itself, whereby the party entitled to
were made, was acquainted with the true character of the benefit of it is prevented from making it available
his own title, or with the fact^that he had none.* in a court of law. In other words, the case shown
It never takes place where one party did not intend must be one where the forms of law are used to defeat
to mislead, and the other party is not aetuaUy misled.^ that which, in equity, constitutes the right.s
An estoppel by conduct involves: a misrepresentar- Is not applicable to the government in a criminal
tion or a concealment of a material fact, made with
knowledge of the facts, to one who is ignorant of the See Disparage, 3; Fraud; Grant, 2; Laches;
prosecution.^
truth, made with intention that he should act upon it, Lease; Ratification,!; Sale, Conditional; Standby.
and leading him to act upon it.*
Tlje representation must be credited as true, and
the thing of value be parted with, the credit be given, 1 Ohio & Mississippi R. Co. v. McCarthy, 96 XT. G. 267
(1877), cases, Swayne, J.
or the liability be incurred, in consequence thereof.'
2 Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 547-48
(1877), cases. Field, J.
1 Dickerson v. Colgrove, 100 U. S. 580 (1879), Swayne, 8 Deery v. Cray, 5 Wall. 805 (1866); Ketchum v. Dun-
J. ; Baker v. Humphrey, 101 id. 499 (18T9), cases. can, 96 U. S. 666 (isrr).
a Hill V, Epley, 31 Pa. 334 (1858), Strong, J. ; Gregg v. * Sims V. Everhardt, 102 U. S. 313 (1880).
Von Phul, 1 Wall. 281 (1863), cases; Dair v. United ^Jackson v. Yanderheyden, 17 Johns. 167 (1819);
States, 16 id. 4 (1873). Keen v. Coleman, 39 Pa. 399 (1861); Bigelow, Estop. 376;
3 Henshaw v. Bissell, 18 Wall. 271 (1873), cases, Field, 37 Am. Law Reg. 50-^2 (1888), cases.
J.; Fowler v. Parsons, 143 Mass. 406 (1887). 6 Daniels v. Tearney, 102 U. S. 420 (1880).
4 Steel V. Smelting Co., 106 U, r^'MQ (1883), Field, J. 'Pendleton v. Richey, 33 Pa. 63 (1858); Keating v.
See Wendell v. Van Eensselaer, 1 Johns. Ch. *354 Orne, 77 id. 93 (1874).
(1815), Kent, Ch. B Drexel v. Bemey, 133 U. S. 253 (1887), Matthews, J.
5 Brown v. Bowen, 30 N. T. 541 (1864); Jewett v. See also, generally, 17 BMtch. 14; 18 id. 33; BBiss.
Miller, iO id. 406 (1852); Catlin v. Grote, 4E.iK Sra. 304 373; 11 id. 209; 2 Flip, 699; 13 F. R. 208; 16 id. 479; 71
(1855). ■ Ala. 247; 3 Col. 535; 50 Conn. 86; 2 Dak. 185; 1 Idaho,
6 Stevens v. Dennett, 51 N. H. 333 (1873), Foster, J.^ 469; 105 111. 333; 13 Bradw. 99; 72 Ind. 480; 76 id. 390;
Denver Fire Ins. Co. i>. McClelland, 9 Col. 24(1885);
30- ^an. 640; 39 Minn. 473; 74 Mo. 67; 42 N. Y. 447; 75
Griffith V. Wright, 6 id. 249 (1883); 41 N. H. 385; 43 id, id.^-, lOOPa. 263, 558; 13R.L265; 76 Va. 314; 10"Wis.
285; Hid. 31; 30N.Y.541. 453; 1 Sna. L. C. 651, note; 2 Pomeroy, Eq. §§ 801-21;
'Jones V. McPhillips, 82 Ala. 116 (1886), cases, Stone, Herman, tZ^gtoppel; 3 Whart. Ev., Index.
Chief Justice. » Justice D. C&i{imonwealth, 81 Ya. 317 (1885), cases.

■> Wik f
 417
ESTOVERS
ET
ESTOVEES.i Maintenance; support; "Writ of estrepement. This lay at com-
necessaries. Compare Bote. mon law, after judgment in a " real " action,
Common of estovers; estovers. The and before possession was delivered by the
liability of taking necessary wood from an- sheriflf, to stop any waste which the van-
other's land for fuel, fences or other agricult- quished party might be tempted to commit.
Now, by an equitable construction of the statute of
ural purpose.^ See Common, 3, Right of. Gloucester, 6 Edw. I (1380), c. 13, and in advancement
ESTEAY.' An animal that has escaped of the remedy, a writ of estrepement, to prevent
from its owner, and wanders or strays about ; waste, may be had in every stage, as well of such ac-
at common law, a wandering animal whose tions wherein damages are recovered, as of those
owner is unknown.* wherein only possession is had; for, peradventure, the
tenant may not be able to satisfy the demandant his
A wandering beast whose owner is un-
full damages. It is, then, a writ of preventive justice. *
known to the person who takes it up.' The same object being attainable by injunction, the
Estrays are such valuable animals as are found writ became obsolete in England, and was impliedly
wandering in any manor or lordship, and no man abolished by Stat. 3 and 4 Wm. IV (1834), o. 37, § 36.
knoweth the owner ol them. . Any beasts may be
In Pennsylvania, after an action in ejectment has
estrays that are by nature tame or reclaimable, and in
been begun, the plaintiff may have the writ to pre-
which there is a valuable property, as, sheep, oxen, vent destruction of the premises : he having first given
swine, and horses, which we in general call " cattle." a bond, with sureties, conditioned to indemnify the
. For animals upon which the law sets no value, as
defendant against damage. The court hears the par-
a dog or a cat, and animals /erce natures, as, a bear or ties in a summary manner, and makes such order
a wolf, cannot be considered estrays. . The finder as seems just; and it may order an inspection of the
is bound, so long as he keeps the animal, to feed and
care for it; but he may not use it at labor.* ET. L. And.
premises.*
By early English law, estrays were the property of
The original of &, which in old books is used for et.'
the king, or of his grantee — the lord of the manor Et alius. And another. Et alii. And
where found. Modem statutes provide that they shall
be impounded, for return to the owner, on payment of others (as plaintiffs). M alios. And others
expenses.' See Use, 2. (as defendants). Abbreviated et al., and,
ESTREAT.* An extract or copy of an sometimes, for the plural, et als.,* which,
original writing or record, — especially of a strictly, should stand for et alios.
fine or amercement, certified to and to be Et al., in every-day use in writs, pleadings, styles
of cases, and entries in minutes and dockets, means
levied by an officer.
"and another," or " and others," as the case may be.^
A recognizance is " estreated " when forfeited by
failure of the accused to comply with the condition, Et csetera. And other things ; and oth-
as by failure to appear: it is then " extracted," that is,
ers ;and the like ; and so forth ; and in othet
taken from among the other records and sent to the relations or capacities. Also, sometimes, and
exchequer, the party and his sureties having become, other persons. Abbreviated etc., &o.
by breach of the condition, the king's absolute debt- Used in pleadings to avoid repetitions, relates to
ors." things unnecessary to be stated.'
ESTREPEMENT.i" Permanent injury, A recognizance '* for defendant's appearance, &c.,"
destruction ; waste. at a time and place, was held to mean for appearance

1 F. estoffer, to furnish, maintain. and non-departure.'

Added to the reservation of a way for a particular
'See 1 Bl. Com. 441; 2 id. 35; Van Rensselaer ti.
use, as "for the purpose of carting, &c.," is, from
EadclifE, 10 Wend. 639 (1833); Livingston v. Keteham,
1 Barb. 592 (1849). vagueness, without meaning or effect.'
In a warrant for land, "&c.," in the expression
'F. estraier, to wander: rove about the streets or "Ingersoll, &c.," without explanation, was held to
ways: estree: L. strata, a street, way,— Skeat. I... L. have no meaning, and disregarded.'
extravagare: L. extra, on the outside, without; vagare,
vagari, to wander, rove. 1 3 Bl. Cora. 225-2f
« Shepherd v. Hawley. 4 Oreg. 208 (1871), Prim, C. J.: »2Brlghtly, Tr. &fl. i 1857-58, cases.
Burrill's Law Diet. ^^ s See 2 Ves. Sr. ••153.
* 76 Va. 36; 77 id. xi; 6 Gratt.
5 Roberts v. Barnes, 27 Wis. 425 (18Ji), Dixon, C. J.
» 1 Bl. Com. 297. » Eenkert v. Elliott, 11 Lea, 262 (18S3); Lyman v.
' Seel Bl. Com. 297-98; 2 id. 14jl Kent, 359; 18 Hck. MUton, 44 Cal. 633 (1872); 3 La. An. 313; 10 id. 164; 12
426; 133 Mass. 39; 27 Conn. 473; #Iowa, 437; 60 Md. 88; id. 283; 14 Pa. 161.
39 Mich. 451; 69 Mo. 305; 83 N. of 175; 14 Tex. 430. » Dano u Missouri, &c. E. Co., 37 Ark. 668 (1872),
» F. estrait: L. ex-trahereit4 draw out, extract. McClure, 0. J.
94 Bl. Com. 253. ' Commonwealth v. Eoss, 6 S. & E. '•438 (1821).
' Meyers v. Dunn, 49 Conn. 76 (1881).
ioEs-trep6. F. estreper to destroy, strip; L. ex-tir
pare, to root out. » Smith V. Walker, 98 Pa. 140 (1881).
(37)
 ETYMOLOGY 418 EVICTION

May import other purposes of a like character to 3. Accident; casualty: as,, a fortuitous
those already named.' event. See Accident, Inevitable.
Et infra. See Et supra.
Et non. And not. See Traverse, Absque EVERY. Originally, " everich " — ever
hoc. each ; each one of all.^
Includes all the separate individuals which consti-
Etsequittir. And what follows. Plural, tute the whole, regarded one by one; as, in the ex-
et sequuntur. Abbreviated et seq. pres ion, every
" person not having a Ucense shall be
Refers to pages or paragraphs following a particu- liable to a fine."*
lar page or paragraph cited. In a statute " every railroad " may mean all rail-
roads.' See Ail.
Et supra. And (that) above : the author- Compare A, 4; Ant; Each.
ity or quotation foregoing. Abbreviated et EVICTION.* It is difficult to define this
sup. Opposed, et infra: and (that or those) word with technical accuracy. Latterly, it
below, or following.
has denoted what formerly it was not in-
Et uxor, or uxores. And wife, or wives.
Abbreviated et uao. tended to express. In the language of plead-
Denotes that a wife or wives are parties to a deed. ing a party evicted was said to be expelled,
ETYMOLOGY. See Dictionary. amoved, put out. The word, which is from
Legislative language is to be received, not necessa- evincere, to dispossess by a judicial course,
rily according to its etymological meaning, but ac- formerly denoted expulsion by the assertion
cording to its probable acceptance, and especially in of a paramount title, and by process of law.
the sense in which the legislature is accustomed to It is now popularly applied to every class of
use the same words. Illustrated in the expression to
" connect " railroad tracks of different gauges." expulsion or amotion. ^
The courts construe words according to the common A wrongful act by a landlord, which re-
parlance of the country. Hence, a corporation en- sults in the expulsion or amotion of his ten-
gaged in removing petroleum from place to place is a ant from the land.*
" transportation " company.' See STiTUTE. An act of a permanent character done by
EUNDO. See Arrest, 3.
the landlord to deprive, and which has the
EVANGELICAL. See Charity, 3; In- effect of depriving, the tenant of the use of
digent.
the demised thing or a part of it.'
EVASION". A subtle endeavoring to set To constitute an eviction which will operate as a
aside the truth or to escape the punishment Suspension of the rent, it is not necessary that there
of the law.* should be an actual physical expiilsion of the tenant
Evasive. Tending to evade; avoiding: from any part of the premises.'
Any act of a permanent character, done by
as, an evasive — affidavit, answer, plea, ar-
the landlord, or by his procurement, with the
gument.
Parties are sometimes said to evade, or to seek to intention and efEect of depriving the tenant
evade, the jurisdiction of a particular court, the oper- of the enjoyment of the premises demised, or
ation of an obnoxious law, the payment of a tax, serv- a part thereof, to which he yields and aban-
ice of process.
EVENT. 1. That which comes to pass ; dons possession.6
A definition has sometimes been given by which, to
result ; end ; final determination. constitute an eviction, there must be an amotion of
" The relator is to pay or receive costs, according the tenant from the demised premises by, or in conse-
to the event of the suit." ^ quence of, some act of the landlord in derogation of
3. Occurrence: as, an uncertain event. the rights of the tenant, and with intent to determine
See After ; Condition ; Remainder ; Wager, the tenancy, or to deprive the tenantof the enjoyment
2; When.
''*iEte£wn V. Jarvis, 3 De Gex, F. & J. *173 (1860),
iSohouler, Petitioner, 134 Mass. 437 (1883); Dicker- Campbeir, Jd. Ch.
son V. StoU, 84 N. J. L. 553 (1854); Gray v. Central R. a State V. Penny, 19 S. C. 321 (1882), Simpson, C. J.
Co. of New Jersey, 11 Hun, 75 (1877). See 105- Mass. sCommonweal1tfii,i;. Eiohmond, &c. R. Co., 81 Va.S67
31; 9 Kan. 153; 1 Cow. 114; 4 Daly, 08; 4 Mete., Ky.,
211; 10 Mod. R. 153; 6 E. L. & E. 238. • L. evictus: ew^cere,
-A to overcome, vanquish.
(1S36). ■
> Philadelphia, &c. B. Co. v. Catawiasa B. Co., 63 '» Upton V. Towaend)^84 E. C. L. *64, 80 (1855), Jervis;
Pa. 59 (1866). Chief Justice. \ ,
' Columbia Conduit Co. v. Commonwealth, 90 Pa. ■ « [Ibid. •70, Crowder, Jj.
309 (1879); L. R., 10 Ch. Ap. 156. , ■'Ibid. *73, Willee, J.
~ 'Jacob's Law Diet.; 1 Hawk. PI. Cr. 81. ' Eoyce v. Guggenheim , 106 Mass. 302 (1870), Gray, J. ;
»3 Bl. Com. 364. MoAlester v. Landers, 70 Gal. 82 (1886), cases.
 EVIDENCE 419 EVIDENCE

of the premises, or some part thereof. The amotion submitted to investigation, is established or
may be by physical expulsion by the landlord, or by
abandonment by the tenant upon some act of the land- disproved.!
lord which amounts to an eviction at the election of In the technical sense, almost synonymous
the tenant. The intent with which the act is done may with instrument of proof. In the popular
he ah actual intent accompanying and characterizing sense, conclusive testimony ; that which pro-
the act, or it may be inferred from the act itself. . . duces full conviction.2
Generally the question as to what acts of the. land-
Evidence includes " testimony," which is a mode of
lord, in consequence of which the tenant abandons the
proof; yet the two terms are often interchanged. =
premises, amount to an eviction, is a question of law,
" Proof " is applied, by accurate logicians, to the
and includes the question whether the acts constitute effect of evidence, not to the medium by which truth
proof of the intent. ^
is established.*
Sometimes spoken of as " actual " or " construct- "Evidence" includes the reproduction, before the
ive," and as " partial " or " total." determining tribunal, of the admissions of parties, and
The idea that the ouster must be by process of law
has long since been given up. The rule now is that of facts relevant to the issue. "Proof," in addition,
includes presumptions either of law or of fact, and
covenants for quiet enjoyment or of warranty are citations of law. In this sense proof comprehends all
broken whenever there has been an involimtary loss of the grounds on which rests assent to the truth of a
possession by reason of the hostile assertion of an ir- specific proposition. Evidence, in this view, is adduced
resistible title. Moreover, the eviction may be " con- only by the parties, through witnesses, documents, or
structive—" caused by the inability of the purchaser inspection; proof maybe adduced by counsel in argu-
to obtain possession by reason of the paramount title.* ment, or by the judge in summing up a case. Evi-
Eviction from all or part or the premises suspends dence is but a part of the proof: it is part of the
the entire rent for the time being. The tenancy is not
material on which proof acts.' See Pboof; Testi-
thereby ended, but the rent and all remedy for its mony.
collection is suspended. To have the effect of sus- What is required in the trial of an issue is judicial,
pending the rent the eviction must be effected before as distinguished from moral, truth. . . No evidence
the rent becomes due, for rent already overdue is not which is not admitted on the trial is to be permitted
forfeited. The rule is the same although the rent is
by the determining tribunal to influence its conclu-
payable in advance and the eviction occurs before the sions. . Absolute truth can be reached by us,
• expiration of the period in which the rent claimed from the limitation of our faculties, not objectively,
accrues. 8 as it really exists, but subjectively, as it may be made
A lawful act upon an adjoining estate, done to im- to appear to us. . . That formal proof may express
prove that estate, is not an eviction.* real proof is the object of jurisprudence.'
EVIDENCE.^ That which demonstrates, Evidence, to be believed, must not only proceed
makes clear, or ascertains the truth of the from the mouth of a credible witness, but it must be
credible in itself — such as the common experience
fact or point in issue.* and observation of mankind can approve as probable
Originally, the state of being evident, that
under the circumstances.''
is, plain, apparent or notorious ; but, by in- Evidential; evidentiary. Furnishing,
flection, is applied to that which tends to or relating to evidence : as, evidentiary facts.
render evident or to generate proof. Evi- Evidence, v. To render clear or evident ;
dence is, then, any matter of fact the effect, to establish by written testimony. Whence
tendency, or design of which is to produce evidenced.
in the mind a persuasion, affirmative or dis- Evidences. Bills of exchange, promis-
affirmative, of the existence of some other
sory notes, government, municipal, and cor-
matter of fact." poration bonds, and other instruments for
Includes all the means by which any al-
the payment of money, are spoken of as
leged matter of fact, the truth of which is
"evidences of debt" or indebtedness. ^
Evidence is considered with reference to its nature
1 Skally V. Shute, 133 Mass. 8T0-77 (1888), cases, W. and principles, its object, and the rules which govern
Allen, J. ; 113 id. 481 ; 8 Greenl. Ev. § 843.
= Fritz V. Pusey, 31 Minn. 370 (1884), cases, Mitchell, J.
= Hunter v. Eeiley, 48 N. J. L. 482 (1881), cases, Soud- 1 1 Greenleaf , Evidence, § 1 ; 15 Ct. CI. 606; 56 Ala. 93.
der, J. See also 4 N. Y. 870; 3 Kent, 464. ' McWilliams v. Eodgera, 66 Ala. 93(1876), Stone, J.
* Royce v. Guggenheina, ante. See also 55 Ala. 71 ; s Coke, Litt. 283; 13 Ind. 339; 17 id. 278; 86 id. 123.
6Conn.497; 69111.213; 70 id. 541; 5Ind.3g3; 18 id. 428; * 1 Greenl. Ev. § 1.
33 Iowa, 76; 15 La. An. 514; 85 Mmn. 528; 31 id. 370; 43 " 1 Wharton, Law of Evidence, § 3.
Pa. 410; 91 id. 322; 82 Gratt. 130. « 1 Whart. Ev. §§ 4-5.
5L. evidens, visible: evidere, to see clearly. ' Daggers v. Van Dyck, 87 N. J. E. 133 (1883), Van
813 Bl. Com. 367. Fleet, V. C.
sSeeR. S. §5136.
' 1 Best, Evidence, § 11. '
 EVIDENCE 430 EVIDENCE

in the production of testimony; also, with reference inference must be fair and natural, not forced or arti-
to the means of proof, or the instruments by which
lacts are established.^ See Notice, Judicial. Crimes are secret. Direct testimony is often want-
ficial.'
Moral evidence. Matters of fact are ing. The laws of nature and the relation of things to
each other are so linked and combined together as to
proved by moral evidence alone ; by which is
furnish a medium of proof as strong as direct testi-
meant, not only that kind of evidence which mony. . A body of facts may be proved, of so
is employed on subjects connected with conclusive a character as to warrant a firm belief of
moral conduct, but all evidence not obtained fact, as strong as that on which discreet men are ac-
from , either intuition or demonstration. customed to act in relation to their most important
Demonstrative or mathematical evi- concerns.*
In the abstract, circumstantial evidence is nearly,
dence. Applies to mathematical truth, and if not quite, as strong as positive evidence; in the con-
excludes all possibility of error.2 See further crete, itmay be much stronger. 2
Certainty, Moral ; Demonstration ; Doubt, Circumstantial evidence is often more convincing
Reasonable. than direct testimony. A number of concurrent facts,
like the rays of the sun, all converging to the center,
Direct or positive evidence. Proof may throw not only a clear light but produce a burn-
applied immediately to the fact to be proved, ing conviction. A cord of sufiScient strength to sus-
without any intervening process. CirC)im- pend a man may' be formed of threads. '
stantial evidence. Proof applied imme- Prima facie evidence. Such evidence
diately to collateral facts, supposed to have as in judgment of the law is sufificient to es-
a connection, near or remote, with the fact in tablish the fact, and, if not rebutted, re-
cbntroversy.2 mains sufficient for that purpose. <
Direct or positive evidence is evidence to the precise Evidence which, standing alone and unex-
point in issue; as, in a case of homicide, that the ac- plained, would maintain the proposition and
cused caused the death. Circumstantial evidence is
warrant the conclusion to support which it
proof of a series of other facts than the fact in issue,
which by experience have been found so associated is introduced."
wit|i that fact, that, in the relation of cause and effect, That which suffices for the proof of a particular fact
they lead to a satisfactory and certain conclusion: as, until contradicted and overcome by other evidence.^
when footprints are discovered after a recent snow, Primary or best evidence. The highest
it is certain some animated being passed over the snow evidence of which a case in its nature is sus-
since it fell; and, from the form and number of the ceptible. That kind of proof, which, under
footprints, it can be determined with equal certainty
whether they are those of a man, a bird, or a quadru- any possible circumstances, affords the great-
ped. Such evidence, therefore, is founded on experi- est certainty of the fact in question. Sec-
ence and observed facts and coincidences, establishing ondary evidence. Such evidence as, in
a connection between the known and proved facts and the nature of the case, supposes that better
the facts sought to be proved.' evidence exists or has existed.'
■ Circumstantial evidence consists in reasoning from A written instrument is itself always regarded as
facts which are linown or proved, to establish such as
the primary or best possible evidence of its existence
are conjectured to exist.* and contents. All evidence falling short of this in its
The advantage of circumstantial evidencp is, that, degree is secondary; as, a copy of the instrument, or
as it commonly comes from different sources, a chain
a witness's recollection of the contents.'
of circumstances is less likely to be falsely prepared That the best evidence shall be produced means
and falsehood is more likely to be detected. The dis- that no evidence shall be received which .is merely
advantage is,that the jury have not only to weigh the
evidence of facts, but to draw just conclusions from " substitutionary " in its nature, as long as the '* orig-
them; in doing which they maybe led to make hasty inal " can be had. The rule excludes only that evi-
dence which itself indicates the existence of more
or false deductions: a source of error not existing in original sources of information. But where there is
the consideration of positive evidence. Hence, each
fact necessary to the inference must be distinctly and
independently proved by competent evidence; and the 1 Webster's Case, 5 Cush. 311, ante; Commonwealth
V. Howe, 132 Mass. 259 (1883).
2 Commonwealth v. Harman, 4 Pa. 271-73 (1846); Gib-
> 1 Greenl. Ev. § .3. son, C. J.
2 [1 Greenl. Ev. § 13. See Chaffee v. United States, 18 3 Thompson v. Bowie, 4 Wall. 473 (1866), Grier, J.
Wall. 541 (1873); 68 Wis. 58. " Kelly V. Jackson, 6 Pet. *633 (1833), Story, J.; Lili-
s Commonwealth v. Webster, 5 Cush. 310-12 (1860), enthal's Tobacco v. United States, 97 U. S. 268 (1877).
Shaw, C. J. See also People v. Cronin, 34 Cal. 203-3 = Emmons v. Westfleld Bank, ' 97 Mass. 243 (1867),
(1867); People v. Morrow, 60 id. 144 (1882). Foster, J.
« People V. Kennedy, 33 N. Y. 146, 145 (1865), Benio, •Cal. Code Civ. Proo., § 1833; 70 Cal. 570.
C. J. i 62 Wis. 63; 1 Bish. Cr. Proo. § 1069. ' 1 Greenl. Ev. §§ 84, 82; 3 Bl. Com. 367.
 EVIDENCE 431
EVIDENCE

no substitution, only a selection of weaker instead will assist in arriving at the truth or falsity
of
stronger proofs, or an omission to supply all the
proofs of the allegation ; evidence which supports a
capable of being produced, the rule, is not infringe
d.
. Until shown that the production of primary evi- party's theory of his case. Irrelevant evi-
dence isout of the party's power, no other proof dence. Evidence which does not tend to
of the fact is admitted. . . The distinction is one (if support the issue ; impertinent testimony.
law, and refers to the quality, not to the strength, Eelevant evidence is also spoken of as admissible,
of
the proof. Evidence which carries on its face no indi- and irrelevant as inadmissible, under the pleadings;
cation that better remains behind is not secondary, that is, as proper, or improper, to be received.'
but primary. If there are several distinct sources of All evidence must have relevancy to the question
information it is not ordinarily necessary to show that in issue, and tend to prove it; if not a link in the chain
they have all been exhausted, before secondary evi- of proof, it is not receivable."
dence can be resorted to.' Where there is evidence before the jury —whether
The general test is immediateness, not authority. it be weak or strong — which fends to prove the issue
No primary testimony is rejected because of faint- on the part of either side, it is error for the court to
uess.'* wrest it from the exercise of their judgment. It should
Secondary evidence is admissible when it is the best be submitted under instructions.'
the party has it in his power to produce. The rule But the court cannot tell the jury that any legal
promotes the ends of justice and guards against fraud, results follow from evidence which " tends " to prove
surprise, and imposition. There may be degrees of the issue.*
secondary evidence. ^ If the evidence relates to the transaction under
,When the evidence is the best obtainable, it shordd consideration, or is connected with it, and is not too
be admitted, unless that would contravene some es- remote, it is competent. " It is relevant to put in
tablished rule of law. Thus, in an action against a evidence any circumstance that tends to make the
common carrier for the loss of a pearl ring, the plaint- pioposition at issue more or less improbable." '
iff was allowed to point out a pearl corresponding in The possibility of error goes to the weight of evi-
size, color, and general appearance to the one lost, dence, and is not a ground for rejecting it. The spirit
and an expert to testify to the value of the selected of the law permits a resort to every reasonable source
pearl.* See further Copy; Lost, 2; Photograph; of information upon a disputed question of fact. Un-
PRonucE, 1. less excluded by some positive exception, everything
Presumptive evidence. Evidence af- relative to the issue is admissible; and this is ex-
forded by circumstances from which, if un- tended toevery hypothesis pertinent to the issue.'
Material evidence. Evidence important
explained, the jury may or may not infer or
presume other circumstances or facts.* See to a just determination of the issue ; capable
Peesumption. of affecting the result. Immaterial evi-
Conelusire evidence. Such evidence dence. Evidence not directly pertinent to
as, being uncontradicted, controls the decis- the issue; not important enough to change
the result.
ion ; also, such evidence as the law does nqt
allow to be contradicted. Cumulative evidence. Evidence of the
Parol evidence. Evidence which need same kind to the same point."
Additional evidence to support the same point, and
not be in writing ; evidence extrinsic to the
of the same character with evidence already pro-
language of an instrument, and brought for- duced. From the Latin cumulare, to heap up.*
ward to throw light upon its meaning. See Evidence which simply repeats, in substance and
further Parol. effect, or adds to, what has been testified to."
Evidence which merely multiplies witnesses to a fact
Hearsay evidence. The narrative of
what one has heard from another, and not
what he knows of his own personal knowl- ' See 3 Col. 13; 43 Pa. 170; 11 S. & E. 134.
edge. See further Hearsay. ' Thompson v. Bowie, 4 Wall. 471 (1806).
Relevant evidence. Such evidence as 3 Hickman v. Jones, 9 Wall. 301 (1869), Swayne, J.
* City of Providence v. Babcock, 3 Wall. 244 (186S); 1
is applicable to the issue; evidence which id. Sm; Sid. 368.
'Fee V. Taylor, 8J Ky. 264 (1885), Holt, J.; 1 Whart.
'1 Greenl. Ev. §§ 83, 84, cases; Clifton v. United Ev. § 31.
States, 4 How. 247 (1848). » Bell V. Brewster, 44 Ohio St. 696, 697 (1887), Min-
= 1 Whart. Ev. Ch. HI; ib. §§ 90, 677. shall, J. ; 1 Whart. Ev, § 20,
' Comett V. Williams, 20 Wall. 386, 246 (1873), cases, ' Parker v. Hardy, 24 Pick. 348 (1837), cases, Morton,
Swayne, J.; Eiggs v. Tayloe, 9 Wheat. 486 (1824); Steb- Justice,
binsu Duncan, 108U. S,4S (1882J; 13F.E. 403; 33Mioh. 8 People V. Superior Courts 10 Wend. 894 (i833). Sav-
53; 38 Ohio St. 125.
age, C. J.
* Bemey v. Dinsmore, 141 Mass. 44 " [Parshall v. Klinck, 43 Barb. 313 (1864), Ei D. Smith,
s 1 Greenl. Ev. § 13. Justice.
 EX
EVIDENCE
423

before inTestigated, or only adds other circumstances The rules of practice in jury trials are necessarily
of the same general character." See Trial, New. somewhat flexible as to the order of proof, the num-
Competent evidence. That which the ber of witnesses, and the time, manner, and extent of
nature of the fact to be proved requires as the cross-examination. In ordinary cases the plaint-
iff begins and introduces all of his subs^tantive evi-
the appropriate proof in the particular case : dence before the defendant opens his defense; so, the
as, the production of a writing where its defendant introduces all his substantive evidence be-
contents are tlie subject of inquiry ; that is, fore the plaintiff rebuts. But the judge, in the exer-
the best evidence.^ Incompetent evi- cise of a soiind discretion, may relax eicher rule."
The orjier of admissibility is regulated by the court.
dence. Inappropriate, improper evidence. The Federal courts, in civil cases at common law, ob-
Satisfactory or siifS.cient evidence. serve as rules of decision the rules of evidence of the
That amount of proof which ordinarily satis- State in which they sit, except when otherwise pro-
fies an unprejudiqial mind, beyond reason- vided by the Constitution or an act of Congress. "
able doubt.' A party who objects or excepts to evidence must
The circumstances which will amount to this degree state his reasons therefor. ^
of proof can never be previously defined; the only See further Admission, 2; Answer, 3; Boox; Char-
test of which they are susceptible is, their sufficiency acter; Charge, 2 (2, c); Compromise; Crime; Decla-
ration, 1;Deed: Demurrer; Deposition; Document;
to satisfy the mind and conscience of a common man,
Doubt; Estoppel; Examination, 9: Exception, 4;
and so convince him that he would venture to act upon
Fact; Handwriting; Inspection, 2; Insanity; Law;
that conviction in matters of the highest importance
Letter, 3; Njonsuit; Notice, 1, Judicial; Offer, 2;
to his own interests. ^
Opinion, 1; Practice; Procedure; Rebut; Record;
Questions respecting the competency and admissi- Res, Gestae; Scintilla; Stenographer; Weight, 2;
bility of evidence are entirely distinct from those Witness.
which respect its suffloiency or effect. The former
are conclusively within the province of the court; the EVIDENT. Clear to the mind ; obvious ;
latter belong earolusively to the jury.* plain; apparent; manifest; notorious; pal-
Minor terms descriptive of species of evi-
dence: affirmative as opposed to negative Under the constitutional provision that bail must be
evidence ; adminicular or ancillary evidence ; taken pable.in capital cases except where the " proof is evi-
dent," bail will be denied if the evidence adduced on
corroborative evidence; extrinsic as opposed the application would sustain a verdict of murder in
to intrinsic evidence ; inculpatory as opposed the first degree.*
to exculpatory evidence ; newly or after-dis- EVIL. See Malice; Malum; Wrong.
covered evidence ; rebutting evidence ; state's EX. 1. The Latin preposition — out of,
evidence by an accomplice ; substitutionary proceeding from, from, of, by, on, on account
evidence, qq. v. of, by virtue of, according to ; also, — beyond.
The object of evidence being to prove the point in See Extra.
issue, fundamental rules regulating its production are: In composition intensifies or else has little effect -
1. T,he evidence must correspond with the allegations, lipon the signification. Before a consocant becomes
and be confined to the point in issue. 3. It is sufficient simply e; the x remains before the vowels and c, p,
if the substance of the issue be proved. 3. The burden
g, s, t; assimilates with a following /; is dropped be-
of proving a proposition or issue rests upon the party fore other consonants.
holding the affirmative. 4. The best evidence of which In French es: as, in estreat, estrepe, escrow.
the case is susceptible must be produced.^
3. Prefixed to the name of an official, de-
The general rules of evidence ai'e the same in civil
and criminal cases. ^ notes that he formerly held the office desig-
The mode of conducting trials, the order of intro- nated :as, ex-attorney-general, ex-judge, ex-
ducing evidence, and the time when it shall bo intro- minister, ex-marshal, ex-sheriff.
duced, belong -largely to the practice of the court Prefixed to a word denoting a civil status
where the fact is tried.'
or condition, indicates that the person re-
ferred to formerly occupied that relation: as,
■Waller v. Graves, 20 Conn. 310-11 (1850), cases.
Church, C. J. See also 2 Ark. 363; 42 Conn. 519; 27 ex-convict, ex-partner, ex-wife.
Ga. 464; 28 Me. 383; 84 N. J. L. 156; 7 Barb. 278. .
» [1 Greenl, Ev. §§ 2, 32; 107 U. S. 332. ■' First Unitarian Society v. Faulkner, 91 U. S. 417-18
'1 Greenl. Ev. § 2; 30 Me. 481. (1875), Clifford, J.
■> 1 Greenl. Ev. § 2; 2 Pet. 44, 133, 149. a R. S. § 721: Act 1789; Potter v. Third, Nat. Bank of
' 1 Greenl. Ev. § 50; Travelers' Ins. Co. v. Mosley, 8 Chicago, 102 U. S; 165 (1880), cases, Harlan, J.
WaU. 409 (1869). 'State 1). Taylor, 36 Kan. 334 (1887), cases. French
« 4 Wheat. 472; 12 id. 469; 91 U. S. 438; 57 Wis. 157; 4 law of evidence, 19 Am. Law Rev. 380 (1885).
Bl. Com. 356. « Exp. Foster, 5 Tex. Ap. 646-47 (1879); Exp. Gilstrap,
' WUls V. Russell, 100 U. S. 633 (1879). 14 id. 240, 264 (1883).
 EX EXAMINATION
423

3. Prefixed to other words, denotes absence Ex necessitate. From necessity ; neces-

sarily.
or privation of the notion conveyed by the
simple word; without: as, ex-coupon, ex- Ex necessitate legis. From urgency of the
law.
divi^end, ex-interest.
" Ex-dividend " is used of sales of stocks which re- Ex necessitate rei. From urgency of the
serve to the seller the dividend presently payable. thing or case.
See Dividend, 3.
Ex nudo pacto. Out of an engagement
A sale of bonds "ex July coupons" means a sale without a consideration. See Pactum.
reserving the coupons, a sale in which the seller re-
ceives, inaddition to the purchase-price, the benefit of Ex ofB.cio. By virtue of office. See Of-
the coupons, which benefit he may realize either by FICIUM.
detaching them or receiving from the buyer an equiv- Ex parte. On behalf of. Abbreviated
alent consideration.!
Ex abvindantia cautela. Out of excess- ex p., and exp. See Pars.
ive care. See Cautela. Ex post facto. After the fact. See Fac-
Ex aequo et bono. By what is fair and tum, Ex post facto. .
Ex proprio. Of his or its own.
good : in justice and fair dealing. See As-
sumpsit; Equity. Ex proprio motu. Of his own volition.
See Motion, 1.
Ex anteeedentibus, etc. See Inteepre-
tatio. Ex proprio vigore. Of its own inherent
force. See Vigor.
Ex arbitrio judlois. By discretion of
Ex relatione. On the information of.
the magistrate or judge.
Abbreviated ex rel. See Relation, 2.
Ex colore. Under color of. See Color, 2.
Ex comitate. Out of courtesy. See Ex tempore. Extemporaneously.
Comity. Ex testamento. From the will. See
Testamentum.
Ex contractu. Out of a contract. See
Action, 3. Ex tlirpi causa. Out of an unlawful en-
Ex curia. Out of court. gagement. See Actio, Ex turpi, etc.
Ex uno disce omnes. From, .one (act)
Ex debito justitiae. Out of an obliga- learn all. Compare Falsus, In tino, etc.
tion of justice: as a matter of legal right.
SeeDEBiTUM; Grace. Ex vi termini. By force of the word.
Ex delicto. Out of a fault or wrong. Ex vi terminorum. From the very mean-
See Action, 2 ; Delictum. ing of the language. See Terminus, 3.
Ex visceribus. From the vitals : from
Ex demissione. By demise, q. v. Ab- the inherent nature ; of the essence.
breviated exdem.
Ex visceribus verborum. From the natural
Ex dolo malo. Out of fraud. See Do-
lus. * meaning of the words.
Ex visitatione Dei. By divine dispen-
Ex facie. From appearance. See Facies.
sationfrom
: natural cause.
Ex facto. From a thing done. See Fac- Ex voluntate. From free will.
tum.
Ex gratia. Out of favor, by indulgence. EXACTIOM'. A wrong done by an offi-
See Grace. cer, or one in pretended authority, by taking
a reward or fee for that which the law does
Ex hypothesi. Upon the supposition or
theory. not allow, — when he wrests a fee or reward
From fixed purpose : in- where none is due.'
Ex industria. " Extortion " is where he extorts more than is due.'
tentionally.
See Extortion; Payment, Involuntary.
Ex lege. From, or by force of, the law. EXAMINATION.^ A weighing, bal-
Ex malefioio. On account of miscon- ancing: search, investigation; hearing, in-
duct :by reason of an illegal act. See Male- quiry. Compare Inspection ; View.
FICIUM.
Examined. Compared with the original :
Ex mero motu. Out of pure free-wUl. as, an examined copy, q. v.
See Motion, 1.
Ex mora. From delay, or default. Litt.re,368;to Jacob's Law Diet.
[Coke,
2' L. examina weigh carefull y: examen, tongue
■ Porter V. Wormser, 94 N. Y. 445 (1884), Andrews, J. of a balance.
 EXAMINATION EXAMINATION
424

Examining. Conducting an examina- nothing less than that he was not present when she
tion : as, the examining counsel. was examined, and satisfies a statute (of Maryland)
JBxaminer. A person charged with the requiring an examination " out of the presence." i See
further Acknowledgment, 2.
duty of making or conducting an examina- 6. Examination of a jiational bank.
tion : as, an examiner — in chancery or By an officer of the United States treasury,
equity, of customs, of national banks, of to discover whether the bank is complying
patents, of titles, in- divorce, lunacy, parti- with the law as to issues, reserve, etc.^
tion, qq. V. 7. Examination of a student-at-law.
1. Examination of a bankrupt or of a This is preliminary to his admission to prac-
debtor. Interrogation as to the state of his tice, as a test of qualification.
property. 1 8. Examination of a title. A search to
3. Ez:amination of an accused person. determine whether the title to land, proposed
Investigation, by an authorized magistrate,
for conveyance or mortgage, is free from de-
of the grounds of an accusation of crime fects, and marketable, q. v.
against a person, vpith a view to discharge Whence examiners of titles, and abstract or brief
him or to secure his appearance at trial, and of title. See Abstract, 2; Convbyancek; Title, 1.
to preserve the evidence. 9. Examination of a witness. The in-
Had before a justice of the peace, an alderman, or terrogation or questioning of a witness, to
other magistrate, a United States commissioner, and, elicit his personal knowledge as to one or
possibly, before a judge. On a,prima facie case bail will more facts.
be required, or a commitment made ; otherwise, the ac-
cused isdischarged. The examination may be waived. Direct examination, or examination in
The accused has no right to the assistance of counsel; chief. The first examination, on behalf of
and, in many cases, he himself is not examined. the party who calls the witness. Opposed,
3. Examination of an invention. Of 1, to examination in pais, or on the voir dire:
an alleged new invention, for which applica- a, preliminary questioning intended to test
tion for a patent has been made, to ascertain competency ; 3, to cross-examination: by the
whether it is sufBciently new and useful, or adverse party, confined to the subject-matter
whether it interferes with any other inven- elicited upon the direct examination.
tion. ^ See Patent, 3. Re-direct examination. Follows the cross-
4. Examination of a long account. By examination, and is confined to matters
a referee, of the proofs of the correctness of brought out under it.
the items composing a long account.^ See Re-cross examination. Follows the re-
Account, 1. direct examination, and is restricted to the
5. Examination of a married woman. new or additional information or answers
Of a wife, separate and apart from her hus- given thereunder.
band, to learn whether her acknowledgment Re-examination. The re-direct or the re-
of a mortgage, conveyance, or other deed is cross examination in the same hearing; also,
voluntary, without coercion of her husband. another and distinct examination in a subse-
Also called her private or separate examina-
quent trial.
tion.* Separate examination. Is of a witness '
Where a statute requires a "private " examination apart from or out of the hearing of another
of the wife, to ascertain that she acts freely aijd not
or other witnesses.
by compulsion of her husband, but prescribes no pre-
cise form of words to be used in the certificate of ac- Cross-examination, which is the right of the party
knowledgment, itis sufficient if the words of the against whom a witness is called, is a means of sepa-
acknowledgment have the same meaning, and are in rating hearsay from knowledge, error from ti'uth,
substance the same with those in the statute.^ opinion from fact, inference from recollection; of
Such statutes provide for privacy from the husband ascertaining the order of the events as narrated by
the witness in his examination in chief, the time and
only. A certificate "privately c amined apart from
and out of the hearing " of the husband, can mean place when and where they occui'red, and the attend-
ing circumstances; and of testing the intelligence,
memory, impartiality, truthfulness, and integrit.y of
' See E. S. §§ C086-87.
= E. S. § 4803. the witness.^
' See Magown v. Sinclair, 5 Daly, 66 (1874). ' Deery v. Cray, 5 Wall. 807 (1866).
* 1 Bl. Com. 444. » See E. S. § 5240.
' Dundas v. Hitchcock, 12 How, 269 (1851). 8 The Ottawa, 3 Wall. 271 (1865), Clifford, J.
 EXAMPLE 435 EXCEPTION

Cross-examination is " tlie crucial test " of truth. A EXCAVATE. Se? Digging.
witness may not be cross-examined as to facts and cir- EXCEEDING. See More oe Less.
cumstances not connected with matters stated in his
Under an indictment for embezzlement, alleging
du'ect examination; if a party wishes to examine him
as to such facts and circumstances he must call him as the gross receiptof a sum " exceeding " a sum named,
proof may be made of the receipt of any amount, al-
a witness in the subsequent progress of the case; ^ that thoiigh it exceed that sum.i
is, " make him his own witness."
Greater latitude is allowed in the cross-examination EXCELLENCY. "His Excellency" is
of a party than in that of another witness. Still, this, the title given by the constitution of Massa-
in its course and extent, where du'ected to matters not cliusetts to the governor of that State ; also,
inquired into in the principal examination, is largely by custom, to the governors of the other
subject to the control of the court in the exercise of a
States, and to the President of the United
sound discretion,— as is the cross-examination of other
witnesses." '
A party may ask questions to show bias or preju- EXCEPTANT. See Exception.
States.'
dice, or to lay a foundation to admit evidence of a EXCEPTIO. L. A keeping out; an
prior contradictory statement.^ exclusion; exception.
An adverse party may now generally be called in
chief " as for cross-examination " whenever his testi- Exceptio probat regulam. The excep-
mony may be needed to make out a prima facie cause tion proves, that is, either confirms or tests,
of action or defense. the rule: '• proves," by not being within the
The court may order the separate examination of a
reason ; " tests " the form in which expressed,
witness. Refusal to answer a proper question is a
by observing whether exceptions must be
contempt of coiu-t. The com-t itself may examine. allowed.
Prompting is not permitted. On the direct examina-
tion leading questions are generally prohibited. The EXCEPTION. Something withheld,
extent and' severity of an examination rests with the not granted or parted with ; the exclusion of
court. Examination is not allowed as to a conclusion
a thing, or the thing or matter itself as ex-
of law, nor, in chief, as to motive, nor as to an opin-
ion. Answers are privileged. The substance of a cluded an
; objection made. Compai-e Eeg-
conversation or of an absent writing may be given. ULAR.
Vague impressions are inadmissible. Answers are ac- Exceptant. One who takes or files ob-
cording to recollection and belief. A witness may jection to a thing done or proposed.
refresh his memory from memoranda.* 1. In a deed or contract, excludes from the
On cross-examination leading questions may be
put. All such questioning is to be on the subject of operation of the words some part of the sub-
the examination in chief. Collateral facts cannot be ject-matter then in being.
introduced to test memory. A witness is not compelled A clause in a deed whereby the donor or lessor, ex-
to criminate himself; nor to answer a question imput- cepts somewhat out of that which he had granted by
ing disgrace, unless the question is material. Slay in- his Always
deed.* part of the thing granted, and the whole of
quire as to religious belief, motive, veracity, bias, and
the res gestce. And may draw inferences from refusal the part excepted. A "reservation" is of a thing not
to answer.^ in being, but newly created. The terms arp often used
Re examination is permitted as to a matter requir- in the same sense.* See Reserve, 4.
ing explanation, and as to new matters introduced by 3. In a statute, excludes from the purview
- the opposition. For this reason a witness may be re- a person or thing included in the words.
called.* Exempts absolutely from the operation of the
Re-cross examination is discretionary with the
enactment. A "proviso" defeats the' operation con-
court.*
Ex- ditonaly.*
See Call; Confront; Cbimisate; Evidence;
pert; Impeach, 3; Pbbwtodice; Question, 1; Refresh; > State V. Ring, 29 Minn. 78, 88 (1882).
Voir; Witness. 2 " The style of the Executive, as silently carried
EXAMPLE. See Damages, Exemplary ;
Precedent. forward from the committee of detail, was still ' his
of revis-
Excellency; ' this vanished in the committee
I Philadelphia, &c. R. Co. v. Stimpson, 14 Pet. 461 ion,"—2Bancroft, Formation of the Const. 210, 187.
(1840) Story, J.; Houghton v. Jones, 1 Wall.
704 (1863). * [Darling v. Crowell, 6 N. H. 423 (1833).
, 17 Wall. 5-12 (1873), cases, Brad- "State V. Wilson, 42 Me. 21 (1856); Kister v. Reeser,
= Rea V Missouri
ley J- ; Schultz,;. Chicago, &c.R. Co.,67 Wis. 617(1886); 98 Pa. 5 (1881); Green Bay, &c. Canal Co. v. Hewitt, 66
Knapp V. Schneider, 34 id. 71 (1809); 3 Dak.
78. Wis 40.5-86(1886); 24 Am. Law Reg. 716-32 (1886), cases;
» Wills V. Russell, 100 U. S. 635 (1879), cases; Schuster 2 McLean, 391; 41 Me. .311; 51 id. 498; 10 N. H. 310; 37
V. Stout, SO Kan. 631 (1883). id 107; 4 Johns. 81; 3 Wend. 633; 1 Barb. 407; 19 id.
« 1 Whart. Ev. §§ 491-515, cases. 192; gs'ohio St. 568; 47 Pa. 197; 5 R. I. 419; 6 Abb. N.
s 1 Whart. Ev. §§ 527-47, cases. Cas. 331 ; 81 Va. 28.
« 1 Whart. Ev. §S 572-75, cases. s Waffle V. Goble, 53 Barb. 523 (1868).
 EXCEPTION 436 EXCEPTION

If an exception occurs in the statutory description or design, counsel, by statute of Westminster 2, 13

of an offense it must be negatived, or the party wiJI Edw. I (1286), c. 31, may require him publicly to " seal
be brought within the description; but if it comes by a bill of exceptions," stating the point in which he is
"way of proviso and does not alter the offense, merely supposed to err. Should the judge refuse to seal the
states what persons are to take advantage of it, then bill, the party may have a writ commanding him to
the defense must be specially pleaded or else be given seal it, if the fact alleged be truly stated: and if he
in evidence under the general issue, according to oir- returns that the fact is untruly stated, when the case
cumstances.i is otherwise, an action will lie against him for a false
An exception ought to be of that which otherwise return. This bill of exceptions is in the nature of an
would be included in the category from which it is appeal, examinable, after judgment entered in the
excepted. ''Where an exception is incorporated in court below, in the next immediate superior court,
the body of the clause, he who pleads the clause ought
upon a writ of prror.i
also to plead the exception, but when there is a clause The principles of the statute of Westminster have
for the benefit of the pleader, and afterward follows a been adopted in all of the States ; in the Federal courts,
proviso which is against him, he shall plead the clause bills are still drawn as at common law under the stat-
and leave it to the adversary to show the proviso." ^
See Act, 3, Enact; GKNERiL; Provided; Proviso. The object is to secure a record which may be re-
viewed. In theory,, the biU states what occurred while
3. In equity and admiralty practice, a for-
the trial was going on. < Exception must be taken at
mal allegation that a previous adverse pro-
theute."
moment a ruling is made, or before verdict.'
ce ding isinsufficient in lav?. A bill should present only the rulings of the court
4. In common-law practice, a formal no- upon some matter of law, as, the admission or rejec-
tice, following the denial of a request or the tion of evidence, and should contain only so much of
overruling of an objection, made in the the testimony, or such a statement of the proofs made
course of a trial, that the exceptant intends or offered, as may be necessary to explain the bear-
ings of the rulings upon the issues.*
to claim the benefit of his request or objec- It is not usual to reduce the bill to fon& and to ob-
tion in future proceedings ; as, upon a writ tain the signature of the judge during the progress of
of error.* the trial; the statute of Westminster did not require
It is also used to signify other objections in the it. The exception need only be noted at the time it is
course of a suit. Thus, there may be exception taken made, and may be reduced to form within a reason-
to bail or security, to the ruling of a judge or master, able time after the trial is over. *
to an appraisement, award, decree, report, or return. It is sufficient if the judge simply signs the hUl.^
It was early held that a bill must be signed within
Bill of exceptions. An "exception" the term, unless by consent or special order. Other-
being an objection to or a protest against a wise the judge might be asked to sign a bill after his
ruling or decision of the court upon a ques- recollection of facts had faded, and parties might be
tion of law, — taken or stated at the time of burdened with unnecessary delay and expense. While
the ruling, unless otherwise prescribed, — a the rule may have been established when short-hand
reports were not usual, the Supireme Court considers
" bill of exceptions" is a written statement the rule still obligatory.'
of the exceptions duly taken by a party to At common law, a writ of error might be had for
the .decisions or instructions of a judge in the an error apparent on the record or for an error in fact,
trial of a cause, with so much of the facts, but not for an error in law not appearing on the rec-
ord; hence, anything alleged ore tenus and overruled
or other mattei-, as is necessary to explain the could not be assigned for error. To remedy this evil
rulings.* was the object of the statute of Westmihster. Under
Every bill must be settled, allowed, and signed by its provisions a bill of exceptions is founded on some
the judge, in the manner, upon the notice, and within objection in point of law to the opinion and direction
the time pointed out by statute.* of the court, either as to the competency of a witness,
Its sole office is to make matters which are extrin- the admissibility or the legal effect of evidence, or
sic, or out of the record, part of the record.*
If, in his directions or decisions, the judge who tries > 3 Bl. Com. 373.
a cause mistakes the law by ignorance, inadvertence, ' Pomeroy v. Bank of Indiana, 1 Wall. 599 (1863).
» Railway Co. v. Heck, 102 U. S. 180 (1880), Waite,
> Simpson v. Eeady, 12 M. & W. *740 (1844), Alder- C. J. ; Hanna v. Maas, 122 id. 26 (1887), cases. Gray, J.
son, 6. * Lincoln v. Claflin, 7 Wall. 136 (1868), Field, J.;
"United States v. Cook, 17 Wall. 177, 173 (1873), Clif- Worthington v. Mason, 101 U. S. 149 (1879); Moulor v.
ford, J.,— quoting Treby, C. J., in Jones v. Axon, 1 Ld. American Life Ins. Co., Ill id. 337(1884); New York,
Ray. 120 (1698), and Steel v. Smith, 1 B. & Al. 99 (1817). &c. R. Co. V. Madison, 183 id. 526 (1887), cases.
3 Abbott's Law Diet. 'Hunnioutt v. Peyton, 102 U. S. 354 (1880), cases,
Strong, J.
< Saint Croix Lumber Co. v. Pennington, 2 Dak. 470
(1881), Shannon, C. J.; 1 N. M. 115. > Stanton v. Embrey, 93 U. S. 555 (1876), cases.
» Kitchen v. Burgwin, 21 111. 45(1858); 20 id. 22S; 3 ' Marine City Stave Co. v. Herreshoff Manuf . Co., 32
Col. 800, 235, 851; 5 HUl, 5T9; 7 Baxt. 56; 77 Va. 250. F. E. 824 (1887), cases.
 437
EXCESSIVE EXCHANGE

other matter of law arising from facts not denied in Power to "sell and exchange " lands includes power
which either party is overruled by the com't. The seal to partition them.'
attests that the exception was taken at the trial. If An exchange is as much within the statute of frauds
the bill contains matter false or untruly stated, the as is a sale."
judge ought to refuse to affix his seal. The substance At common law, the contract carried a warranty of
of the bill should be reduced to writing while the thing title, with a right to re-enter one's original possession,
is transacting. An exception not tendered at the trial if evicted from the later acquisition. ^
is waived.' A person seeking specific performance of a con-
The statute of Westminster did not apply to crimi- tract for an exchange of lands must prove: the con-
nal cases. At common law, no bill of exceptions was tract; that the consideration has been paid or tend-
permitted in such cases; the right depends upon en- ered; such part performance that a rescission would
actment:* be a fraud on the plaintiff, and could not be compen-
See Charge, 2 (2, c); Ebeok, 2 (3), Writ ot;,SBAi-, 2. sated by a recovery of damages at law; and that de-
EXCESSIVE. Surpassing in amount, livery of possession has been made in pursuance of
the contract, and acquiesced in by the other party.'
degree, or extent that which is usual, reason- See Deed, 3.
able, proper or lawful in the particular case : 2. An abridgment of bill of exchange:
as, excessive — bail, damage, distress, fine, an open letter of request from one man to
taxation, qq. v.
another, desiring him to pay a sum named
To constitute bail excessive it must be per se unrea-
sonably great and clearly disproportionate to the therein to a third person on his account. In
offense involved, or the peculiar circumstances appear- common speech, a " draft." *
ing must show it to be so in the particular case.^ A written order or request from one party
EXCHA.N'GE.* A reciprocal contract to another for the payment of money to a
for the interchange of property, each party third person or his order, on account of the
, being both a vendor and a vendee.* drawer. 5
(1) Of personalty : a commutation of goods Originally invented among merchants in different
countries, for the more easy remittance of money.
for goods.6
He who writes the letter is called the
The giving of one thing and the receiving
drawer; he to whom it is written, the
of another thing. ^
" A contract by which the parties mutually give, or drawee; he to whom it is payable, the payee.
agree to give, one thing for another, neither thing, When both dravrer and drawee reside in
or both things, being money only."' the same country, the bill is termed an " in-
A " sale " is the giving of one thing for that which
land" bill; when in different countries, a
is the representative of all values — money .• The dis-
tinction between a "sale" and an "exchange" is " foreign " bill."
rather one pf shadow than of substance. In both A foreign bill is usually drawn in three counter-
cases the title is absolutely transferred; and the same parts or duplicates, and numbered as the "first,"
rules of law are applicable to the transaction, whether "second," and "third" of exchange. The first in-
the consideration is money or a commodity." See Sale. strument that reaches the drawee is paid. Each men-
tions the others, and all three together compose a
(3) Of realty : a mutual grant of equal in- " set " of exchange. The device obviates delays.'
terests, the one in consideration of the other. " Exchange is "at par " when the price of a draft is
The estates exchanged must be equal in quantity;
the face of it; " at a premium " or " above par," when
not in value, for that is immaterial, but in interest:
as, a fee-simple for a fee-simple." the price is more than the face; "at a discount" or
" below par," when the price is less than the face.
> Wheeler v. Winn, 53 Pa. 126 Woodward, C. J.
The price paid is the " rate " of exchange.
' Haines v. Commonwealth, ! Pa. 419 (1882), Shars- "Arbitration of exchange:" converting the cur-
wood, C. J. rency of one country into that of another, through the
» Exp. Eyan, 44 Cal. 558 (1878), WaUace, C. J. ; 6 Q. B. medium of an intervening currency. " Course of ex-
D. 206.
change: " the quotations for a given time. "Par of
« P. eschanger: L. ex-cambiare, to barter, put one exchange:" the value of the money of one country
thing for another, change. in that of another,— either real or nominal. " Ee-
a See Bixby v. Bent, 69 Cal. 638 (1882). exchange: " the expense incurred on a bill dishonored
•2BI. Com. 446.
' 1 Pars. Contr. 521. > Phelps V. Harris, 101 U. S. 380 (1879).
2 Purcell V. Miner, 4 Wall. 517 (1868).
« Cal. Civil Code, § 1804; Gilbert v. Sleeper, 71 Cal.
392-93 (1886). s 3 Bl. Com. 323.
• 1 Pars. Contr. 531; 2 Bl. Com. 446. *2 Bl. Com. 466; 61 N. Y. 365; 33 Ga. 188.
» [Cox V. Nat. Bank of New York, 100 U. S. 709 (1879),
10 [Commonwealth v. Clark, 14 Gray, 373 (1860), Bige- Clifford, J.
low, J.
"3 Bl. Com. 323. « 3 Bl. Com. 466.
»22 Bl. Com. 323; 7 Barb. 638; 31 Wis. 138. ' See Bank of Pittsburgh v. Neal, 23 How. 108 (1859).
 EXCHANGE 428 EXCHANGE

in a foreign country, where made payable, and re, to distinguish between the two classes of mstruments.
turned to the drawer, i But an instrument di'awn upon a bank and simply di-
By the act of issuing a bill the drawer agrees that, recting payment to a party named of a specified sum ■
if it is not paid according to its terms, he will pay it. of money, at the time on deposit with the drawee,
His liability is fixed by due presentment, demand, and without designating a future day for payment, is to
notice of dishonor. 2 be treated as a check. If the instrument designates a
A bill payable at sight, or at a date subsequent to future day for payment, it is, according to the weight
acceptance, must be duly presented for payment, or a of authorities, to be deemed a bill of exchange, when,
party conditionally liable will be discharged. ^ without such designation, it would be treated as a
The acceptor is the principal debtor; the drawer check. . . A check implies a contract on the part
and indorsers are sureties. Discounting a bill is neither of the drawer tbat he has funds in the hands of the
acceptance nor payment. Acceptance is an engage- drawee for its payment on presentation. If it is dis-
ment to pay the bill according to its tenor and effect honored the drawer is entitled to notice; but, unlike
when due. A bill is paid only when there is an inten- the drawee of a bill of exchange, he is not discharged
tion to discharge and satisfy it.* from liability for the want of such notice, unless he
On the question of timely presentation for pay- has sustained damage or is prejudiced in the assertion
ment, the law of the place where a foreign bill is pay- of his rights by the omission. *
able governs. 5 See fiUTther Accept, 2; Assignment, Equitable;
Proof of failure of consideration is a good defense Check; Collection; Current, Funds; Forgery; In-
as between the immediate parties — drawer and ac- dorse; Drait; Due, 1; Honor, 1; Letter, Of credit;
ceptor, and payee and drawee. But as between re- Negotiate, 2 ; Note, Promissory ; Noting ; Protest, 2.
mote parties, an action will not be defeated unless 3. A place where merchants and brokers
there is an absence or failure of the two considera-
tions; that which the defendant received for his lia-
meet for business, at specified hours. Con-
tracted into 'Change.
bility, and that which" the plaintiff gave for his title.
These remote parties are the payee and acceptor, or Called " stock " exchange, *' produce" ex-
the indorser and acceptor. The rule presupposes that
the payee or indorsee became the holder of the bill
change, petroleum
" " exchange, ** grain "
before it was overdue and without knowledge of facts exchange, "pork" exchange, etc., from the
which impeach the title as between the immediate
nature of the business in which contracts, for
the purchase and sale of securities or com-
parties. *
The essential characteristic of a draft or bill of ex- modities, are made. The distinctive word
change isthe order of one party upon another for the may designate the association itself, as well
payment of money. . . The instmments in suit as the place where its meetings are held.
are in strictness bank-checks. They have all the par- All the members of an exchange, considered to-
ticulars inwhich such instruments differ or may differ gether, usually constitute the board of exchange.
from regular bills of exchange. They are drawn upon
a bank having funds of the drawer for their payment, Membership in a board may be qualified by any con-
ditions the creators could lawfully impose. Thus,
and they are payable upon demand, although the
provision in the constitution of a board, whose mem-
time of payment is not designated. A bill of exchange bers are limited in number and elected by ballot, that
may be so drawn, but it usually states the time of a member, upon failing to perform his contracts or
payment, and days of grace are allowed upon it. becoming insolvent, may assign his seat to be sold and
There are no days of grace upon checks. The instru- the proceeds be first applied for the benefit of mem-
ments here are also drawn in the briefest form possi- bers of the exchange to whom he is indebted, is
ble in orders for the payment of money, which is the
usual characteristic of checks. A bill of exchange Is Merchants may voluntarily associate together, and
lawful.*
generally drawn with more formality, and payment prescribe for themselves regulations to establish, de-
' at sight, or at a specified number of days after date, fine, and control the usages or customs that shall pre-
is requested, and that the amount be charged to the vail in their dealings with each other. These are useful
drawer's account. When intended for transmission institutions, and the courts enforce their rules when-
to another State or country they are usually drawn
ever parties cleal with them, in which case the regula-
in duplicate or triplicate, and designated as first, sec-
ond, or thii'd of exchange. A regular bill of exchange,
1 Bull V. Bank of Kasson, 123 U. S. 105, 109-11 (1887),
it is true, may be in a f oi-m similar to a bank-check, cases. Field, J.
so that it may sometimes be difdcult, from their form, The instruments in suit read thus:
i See Adams v. Addington, 16 F. R. 91 (1883), cases. "'S500. The First National Bank, Kasson, Minn.,
Oct. 15, 1881. Pay to the order of Mr. A. La Due five
' 2 Cummings v. Kent, 44 Ohio St. 95-98 a886), cases. hundred dollars in current funds.
3 Cox V. Nat. Bank of New York, anie.
E. E. Fairchild, Cashier.
*3wope V. Ross, 40 Pa. 188-(1861), Strong, J.
6 Pierce v. Indseth, 106 U. S. 549 (1882). To Ninth National Bank, New York City.
fl Hoffman v. Bank of Milwaukee, 12 Wall. 190-91 [Indorsed:] Pay to the order of M. Edison, Esq.
(1870), cases, Clifford, J. See generally Goodman v. A. La Due.
Simonds, 20 How. 364 (185T); as to unification of the M. Edison.
law, 3 Law Quar. Rev. 297-313 (1SS6). a Hyde v. Woods, 94 U. g. 533 (1876), Miller. J.
 EXCHEQUER 420 EXECUTE

tions become a part of the contract. Part of these the State: also, upon any business or calling, franchise
regulations may be observed, and part discarded.' or privilege conferred by or exercised therein, '
See AnBfTRATioN; Bakqain, Time; BitoEBn; Cor- See Commodity; Duty, 2; Impost; Tax, 2.
ner; Wase'r, 2. EXCLUSIO. See Expressio.
EXCHEQIIEK.2 The treasury depart- EXCLUSIVE. That which debars, de-
ment of the English government. prives, or excepts: as, an exclusive right,
Estabjished by William I; reRulated by Edward I.
privilege, or jurisdiction, which is possessed,
Consisted of two divisions; one, for the receipt of rev-
enue; the other, for the administration of justice in enjoyed or exercised independently of an-
matters of revenue, and known as the court of ex- other or others.2 Opposed, inclusive.
chequer, and presided over by the chancellor of the See Enumeration; Only; Possession, Adverse.
exchequer. This court originally had limited equity EXCULPATOBY. See Culpa ; Fault.
jmisdlction; then the chancellor, the Lord Chief EXCUSE. A reason for doing or not
Baron, sat apart in a hall called the exchequer cham- doing a thing.
ber. Its present jurisdiction does not differ materially
from other co-ordinate courts of common law.^ See Excusable. 1. Admitting of excuse ; ex-
Chancellor, 1, Of the Exchequer. empting from liability or responsibility : as,
EXCISE.* An inland imposition, paid an excusable default, an excusable misde-
sometimes upon the consumption of the livery by a carrier.
commodity, or frequently upon the retail 2. Done under circumstances of accident
trade.* Whence excise duty, excise law. or necessity, and without legal malice: as,
An inland imposition, sometimes upon the an excusable homicide, q. v.
consumption of a commodity, and sometimes Ignorance of a fact may excuse; ignorance of the
law never excuses. Infants, lunatics, married women,
upon the retail trade ; sometimes upon the
and persons under duress or necessity are sometimes
manufacturer, and sometimes upon the excused for acts done or sought to be enforced. See
vendor." Ignorance; Knowledge, 1; Notice.
A term of very general signification, mean- EXEAT. See Exire, Ne exeat.
ing tribute, custom, tax, tollage, assessment.' EXECUTE.' To complete or perfect
Though often synonymous with tax, may have a what the law directs to be done ; to complete
distinct signification. It is based on no rule of ap- as an effective instrument.
pomtment or equality, as is a tax. It is a fixed, abso- 1. Referring to a conveyance, mortgage,
lute and direct charge laid on merchandise, products
or commodities, without regard to the amount of prop- lease, will, contract, note, or other document,
erty belonging to those on whom it may tall, or to any
may mean, as in popular speech, to sign, 01"
supposed relation between money expended for a pub-
lic objectanda special benefit occasioned to those by to sign and deliver ; but in strict legal under-
whom tub charge is to be paid.' standing, when said of a deed or bond, al-
Under the constitution of Massachusetts the legis- ways means to sign, seal, and deliver.*
lature may impose reasonable excises upon " produce, Until a promise has been performed it is te'Tned
goods, wares, merchandise and commodities " within "executory;" after performance, "executed."' Ob-
viously, one of two mutual promises may have become
executed while the other yet remains executory; as
I Dillard v. Paton, 10 F. R. 624 (1884), Hammond, J. where a seller pays the price, and the buyer promises
Goddard v. Merchants' Exchange, 9 Mo. Ap. 290 (1880), delivery in the future. So, one or more of several
cases; Thome v. Prentiss, 8-3 111. 99 (1878); 20 Cent. connected promises of one party may be executed
while his other engagements remain executory. Wh&t
Law' J. 444-50 (1885), cases; 45 III. 113; 80 id. 134; 18
Abb. Pr. 271; 2 Mo. Ap. 100; 29 Wis. 48; 47 id. 670. is usually meant by speaking of a contract as execu-
2F. eschequier, chess-board — from the cloth that tory or executed is not that it is so as an entirety, but
originally covered the table or counter. that the promise particularly under discussion is so.
3 3 Bl. Com. 44. 56. be deliv-
Thus, to speak of a sale for cash, of goods to would be
< A misspelling of Old Dutch akaus, aksys: F. as- ered in the future, as an executory contract,
sise,a. tax,— Skeat; Webster. natural it the seller's obligation to deliver were the
» 1 Bl. Cora. 318.
« Pacific Ins. Co. v. Soule, 7 Wall. 445 (1868), Swayne, 1 Connecticut Ins. Co. ■.;. Commonwealth, 133 Mass.
219 161 (1882).
J.; Tax on Capital of Banks, 15 Op. Att.-Gen. S.
(1877); lOchigan Central R. Co. u. Collector, 100
V. 2 See 3 Story, C. C. 131; 2 Ball. 211; 8 Blackt. 361; 29
595 (1879). Kan. 541; 38 id. 366; 60 Md. 80; 83 N. Y. 328.
'Portland Bank o. Apthorp, 12 Mass. 350 (181o), s F. exccuter: L. ex-sequi, to follow out, follow to
Parker, C. J. the end, perform.
8 Oliver v. Washington Mills, 11 Allen, 274 (1865), 1 See Hepp v. Huefner, 61 Wis. 151 (1884); 32 Ark. 453;
v. People's Savings 9 Cal. 430; 17 Ohio, 645; 12 Ired. L. 321; 37 Mich. 459; 23
Bigelow,
Bank. ; Commonwealth
5 id.C.431J. a802). Minn. 551.
 EXECUTE 430 EXECUTE

matter chiefly M question; but if the controversy re- ofiicer, but is held ili abeyance or unexe-
lated to the buyer's payment the contract would be cuted; a writ as to which action has been
called executed. And " executed " is (although " ex-
ecutory "is not) applied to contracts in a sense relat-
deferred by suggestion of the creditor.
ing to the completion of the written instruments in A levy for any other purpose than to realize money
whicK they are embodied, and not to performance of is fraudulent as against a subsequent execution.
their substance. In this sense " to execute " means to Equitable execution. The appointment of
complete the paper as an effective instrument ; to sign a receiver to take charge of property of an
it, and to seal and deliver it whenever these formali-
ties are essential to its inception. * equitable nature, i
Execution-creditor. A creditor who has
3. Referring to a power or trust : to per-
form or fulfill the requirements thereof; to prosecuted his claim to execution; in dis-
tinction from a creditor who has obtained a
give effect thereto according to the intent of
the creator or of the law. judgment upon which he has not issued, from
3. Eeferrins to a decree, judgment, writ a mortgage creditor, and from a general cred-
itor, q. V.
or process : for the officer addressed to carry
Writ of execution. A written command
out the command therein contained.
or precept to the sheriff or other ministerial
"Executed," indorsed on a writ, means that the
officer complied with the mandate.^ officer, directing him to execute the judg-
4. Referring to a criminal : to put him to ment of the court.2
death. Whence to execute the sentence, and Process authorizing the seizure and ap-
executioner. See Death, Penalty, propriation ofthe property of a defendant for
Executed. Completed, finished, per- the satisfaction of the judgment against him. '
formed, perfected ; vested. Executory. A judicial pfrocess, issuing upon some rec-
Yet to be completed, incomplete, not yet ef- ord enrolled in court ; as, at common law, to
fective, finished, perfected, or vested : as, an
repeal a patent.*
executed or executory — agreement, consid- Execution is "the end and fruit of the law: "it
eration, contract, devise, estate, remainder, gives the successful party the fruits of his judgment.^
At common law, the omfcer may be commanded to
sale, trust, use, writ, qq. v. take — the body of the defendant, his goods, his goods
Executive. Carrying out ; pertaining to and the profits of his lands, his goods and the posses-
the enforcement of the laws : as, the execu- sicm of his lands, or, his body, goods, and lands.'.
tive department, executive business; also, Property is held by the competent authority which
first actually attaches it.^ This is known as the rule
the ofiicer who superintends the enforce- in Payne v. Drewe.^ See Jurisdiction, Exclusive.
ment of the laws. See Department ; Docu- At common law, all writs of execution wefe to be
ment; Government; Officer; Pebsident. sued out within a year and a day after final judgment;
Execution. 1. Doing or performing a otherwise, the judgment ^as presumed to haVe been
satisfied. By statute, the lien of such judgment may
thing required.
be fevived by a scire facias,^ q. v.
2. Completion of the obligation of an in- All proceedings under a levy of execution have re-
strument by the final act of delivering it. lation to the time of the seizure of the property.^"
See Execute, 1. Writs of execution, named from the oper-
3. Putting the sentence of the law in ative words in them when all kinds of pro-
force. 3 cesses were in Latin, are :
The act of carrying into effect the final Fieri facias (abbreviated fl. fa.), that yoii
judgment of the court; also, the writ which
authorizes this.*
■ Davis V. Gray, 16 Wall. 317-22(1872), cases.
A writ issuing out of a court, directed to 2 [Kelley v. Vincent, 8 Ohio St. 420 (1858).
an officer thereof, and running against the ' Lambert v. Powers, 86 Iowa, 20 (1872), Beck, C. J.
body or goods of a party.^ ' [Stearns v. Barrett, 1 Mas. 164 (1816). See also
Dormant execution. A writ of execu- Labette County Commissioners v. Moulton, 112 U. S.
223 (1884); 20 III. 155; 11 Wend. 635; 9 Ohio, 160.
tion which has been delivered to the proper
= United States v. Nourse, 9 Pet. *28 (1835).
' Addison, Contr. *2, Am. ed., A. & W. (1888), note. « 3 Bl. Com. 414. See 2 Tidd. Pr. 993.
2 Wilson V. Jackson, 10 Mo. 337 (1847); State v. Will- ' Taylor v. Oanyl, 20 How. 594 (1857), oases; Covell v.
iamson, 57 id. 198 (1874). Heyman, 111 U. S. 176 (1884), cases.
s 3 Bl. Com. 412; 9 Ohio, 160. » 4 East, 547 (1804), Ellenborough, C. J.
»3 Bl. Com. 421.
, * [Lockridge v. Baldwin, 20 Tex. 306 (1857).
» Brown v. United States, 6 Ct.Cl. 178 (1870). 10 Freeman v. Dawson, 110 U. S. 270 (1883), cases.
 EXECUTE 431 EXECUTOR

cause to be made out of the goods, or lands, Mandamus- execMtion. Enforces payment
or both, the amount of the claim. of a judgment against a municipality. See
Applies to personalty, realty, chattels real, and further Mandare, Mandamus.
choses in possession. May be oonomrent with an at- Sequestration. Reaches the revenues of a
tachment inexecution. A single fieri facias may ex-
haust the personalty of the debtor, and an alias fieri corporation, a life-estate, or the property of
facias be issued to sell his realty. But an alias fieri an absconding debtor. See Sequestration, 2.
facias may denote a second or new levy upon either Capias ad satisfaciendum, that you take
personalty or realty. A sale of realty upon a single for satisfying. Process under which the of-
fieri facias may also be by express authorization from ficer arrests and detains the debtor till the
the debtor.!
Levari facias (abbreviated lev. fa.), that judgment is satisfied. See Capere, Capias.
Testatum execution, certifies that the
you cause be levied — out of the land speci-
fied. Used to collect a charge upon land: debtor has property in another county. Is-
sues into another county than that in which
as, a mortgage, mechanic's lien, municipal the record remains. See Testis, Testatum.
claim, taxes, and the like.
May issue after a scire facias has been determined Writs and processes of execution are: those which
in favor of the creditor, as, after judgment on a scire point out specifically the thing to be seized, and those
which command the officer to malie or levy certain
facias upon a mortgage.* sums of money out of the property of a party named.
Venditioni exponas (abbreviated vend, ex.), In the first class the ofiftcer has no discretion, but must
that you expose for sale — realty embraced do precisely what he is commanded. Therefore, if the
in a levy made under a preceding .^eri facias, court had jm-isdiction to issue the writ it is a protec-
tion to the offlcer. In the second class the officer must
and condemned under proceedings in ex- determine at his own risk whether the property he
tent, q. V. proposes to seize is legally liable to be taken. For a
Regarded as a completion of a previous execution, mistake he is responsible to the extent of the injury.
by which the property is appropriated, not as an orig- As to this he exercises judgment and discretion — as
inal or independent proceeding.^ to who is the owner of the property, the kind that may
Attachment-eoceeution. Reaches a chose be taken, and the quantity. '
in action, money and other property in the If a writ be sued out of a court of competent juris-
hands of a stranger, to which the defendant diction, directing an officer to seize specifically de-
has no present right of possession; also scribed property, as in admiralty, replevin, or eject-
ment cases, it is a protection to the officer, when he is
called an " execution-attachment." See At- sued in trespass for executing it. If, however, it in
tach, 2. general terms authorizes him to seize property, with-
Liberari facias, that you cause to be de- out a specific description, he acts at his own risk as
livered — to the creditor, such portion of the regards the ownership of the property."
See JcRisDioTioN, 2, Concurrent; Levy, 2; Minis-
premises, not sold under a previous levari terial, 1;Writ.
facias, as will satisfy the claim, according to EXECUTOR. He to whom another com-
the valuation of the inquest, to hold as his mits by will the execution of his last will
own free tenement. See Extent, 2. and testament.3 Feminine form, executrix.
Elegit, he has chosen. Delivers chattels Correlative, testator, testatrix.
to the creditor at an appraised value, and, if He so closely resembles an " administrator " that
that term will not amount to a substantial misdescrip-
they are not suflScient, then one-half of the
defendant's freehold, till the rents and profits tion in a deed or prosecution.''
Acting executor. Such executor, of two
pay the debt.
performs the duties of
Then plaintiff " elected " this writ, rather than a or more, as actually
fieri facias, or a levari facias, which last writs gave the trust.
satisfaction only to the extent of chattels and present General executor. An executor whose
profits of lands. Authorized by statute of Westmin-
ster 3,0. 18. Prior thereto, possession of land could power is unlimited as to time, place, or sub-
not be taken, the feudal principle being that service ject-matter. Special executor. An exec-
was not transferable to a stranger. The writ is still in utor who serves for a limited time, in a
use, enlarged or narrowed in operation.' particular place, or as to a part of the estate.
1 See 8 Bl. Com. 417. ■ Buck V. Colbath, 3 Wall. 313-44 (1865), Miller, J.
s Mitchell v. St. Maxent's Lessee, 4 Wall. 843 (1866). •Sharp V. Doyle, 103 U. S. 689 (1880), Miller, J.
«3 Bl. Com. 418; 2 id. 161; 4 Kent, 431, 436; Hutchin- s 3 Bl. Com. 503; 1 Ga. 330; 55 Md. 194; 31 Wend. 436;
son V. Grubbs, 80 Va. 254 (1885); 3 Ala. 561; 10 Gratt. 60 Barb. 173; 5 Hun, 21 ; 5 Humph. 468.
« Sheldon v. Smith, 97 Mass. 35-36 (1867), cases; ib. 401.
 EXECUTOR 432 EXEMPTION

Instituted executor. Has the option power to administer the estate. A payment therefore
to serve before another who is named as sub- to one is payment to all. ■
At common law executors have a 3oint authority
stitute—the substituted executor. and a joint interest in the property of the estate.
Rightful executor. The executor They are esteemed in law as one person, and, as such,
named in the will; the lawful executor. represent the testator, although each may be respon-
Executor de son tort. An executor of sible only for his own acts.''
Wiiether an executor may be imprisoned for not
his own wrong : he who, without authority, paying over an amount due upon final account, the
does such acts as only the rilghtful executor statutes and decisions, of the States are not in accord.
may do. In Vermont and South Carolina, though refusal to pay
At common law an executor de son tort is one who, is a contempt of court, imprisonment is not allowed
.without authority from the deceased or the court of under the constitutional inhibition against imprison-
probate, does such acts as belong to the office of an ment for debt.^
executor or administrator. ^ See Administee, 4; Assets; Bona; Charge:; Com-
Not unauthorized are, acts ot kindness in providing mission, 3; Dbvastavit; Devisavit; Donatio; Fu-
for the family of the deceased or in preserving the neral; Goods; Improvident; Inventory; Legacy;
estate.2 Letters; Perishable; Power, 2; Probate; Repre-
An executorde son tort is liable to all the trouble sentative, (i);Settle, 4; Trust, 1; Voucher; Wit-
ness.
of an executorship without the profits or advantages.^
Sole executor. The one person named EXEMPLARY. See Damages.
to serve as executor. Co-executjor, joint- EXEMPLIFICATIOIiT. An official
executor. One of two or more executors. transcript of a record, for use as evidence.
A wife, with her husband's consent, or a minor over Primary evidence; in the United States courts, by
seventeen, or other person of gound mind, may be an act of May 26, 1790, which does not exclude other
executor. He takes title from the will; is a personal proof and is to be strictly followed. The seal of the
representative, identified in interest with the testator; court is essential. An exemplification of the record of
holds the estate in trust for creditors and legatees. the record of a deed is admissible; of a foreign will,
His power being founded upon the special confidence or grant, may be proven by a certificate.* See further
the deceased had in him, he is not ordinarily required Copy; Evidence, Secondary; Faith, Full, etc. ; Lost, 2;
to furnish security for the faithful performance of the Record.

duties of the trust.' EXEMPTION.^ The privilege of being

He is to do the things set forth in the will: to bury
the deceased, prove the will, give notice of letters is-
excepted, excused, or freed from the oper-
ation of a law.
sued, make an inventory, collect the moiiey and per-
Used especially of goods not liable to seizure under
sonal effects,* pay the debts and legacies, and file an
account or accounts. the law of distress for rent; •* of merchandise not sub-
Contract rights pass to him, but not contract duties ject to duties under the internal revenue laws; ' of the
of a purely personal nature. He can buy no part of property of bankrupts and insolvents excepted from
the estate ; nor let assets lie unproductive ; nor use the sale under execution laws; ' and of the property of a
estate for his own benefit. He may be surcharged in decedent not subject to administration.
his accounts. Also, the property itself, In the aggregate.
He is held to the care of a man of ordinary pru-
dence, and to the most scrupulous good faith.
If he honestly exercises a discretion conferred upon > Stone V. Union Sav. Bank, 13 R..L 26 (1880); 8 Ga.
him by the will hh cannot be held liable for a loss occa- 388; 2 Williams, Exec. 946.
sioned by an honest error of judgment.^ ^ Caskie v. Harrison, 77 Va. 94 (1882); Peter v. Bever-
The act of one co-executor is the act of all: each is ley, 10 Pet. *633, 604 (1836); Wilson's Appeal, 115 Pa.
liable for the other's wrong, effected through negli- 93 (1887); M'Cormick v. Wright, 79 Va. 533 (1884), cases;
gence or connivance. All sue and are to be sued to- 24 Cent. Law J. 147 (1887), cases. ' .
gether. Death vests all rights and duties in the sur- See generally Williams, Exec; Schouler, Ex;. &
vivor. Adm., and Wills; 2 Kent, 409; 1 Pars. Contr. 127; Stacy
The rule is that each co-executor has complete V. Thrasher, 6 How. 58-60 (1848); Hill v. Tucker, 18 id.
466-67 (1851); Smith v. Ayer, 101 U. S. 337 (1879); Colt v.

' Emery v. Berry, 28 N. H. 481 (1864), Eastman, J. Colt,

(1886); 111 id. 581559;(1884);
9 Gratt. 21 id.Glasgow
800, 759. v. Lipse, 117 id. 333'
'See 29 Minn. 421-22; 17 Ark. 125; 5 Heisk. 194; 26 'i?e Bingham, 32 Vt. 335(1859); Golson v. Holman,
N. H. 49B; 1 Baxt. 9; 30 Conn. 3S9; 12 Ga. 588; S»id. Sup. Ct. S. C. (1888) ; 26 Cent. Law J. 521-22 (1888), cases.
264; 26 Me. 361; 8 Miss. 437; 19 Mo. 196. 4 See 2 Whart. Ev. Ch. Ill, §§ 95-119; 1 Greenl. Ev.
s 2 Bl. Com. 507. §501; 7W. Va. 413.
• See generally Wall v. Bissell, 125 U. S. 387, 389 (1888), »»3B1.
L. ex-imere,
Com. 6. to take out, remove, free.
cases.
'R. S. §3187.
'Cooper V. Cooper, 77 Va. 203 (1883); 75 id. 747; 24
» E. S. § 5045.
Gratt. 835; 28 id. 442; 32 id. 262.
 EXEQUATUR EXIRE
433

Exempt. Excepted from the burden or Consuls on exhibiting proof of their appointment
operation of law ; also, a person so excepted, receive an exequatur, or permission to discharge their
excused, or relieved. functions within the limits prescribed, which permis-
sion can be withdrawn for any misconduct.^
Exemption laws. Specifically, laws EXEECITOK. L. Exerciser : manager.
which except a part of a debtor's property Exercitor maris. In civil law, he who
from seizure on execution, or other process, equips a vessel; in English and American
as not liable to the payment of his debts.
This property, In its nature and extent, varies in the
law, the managing owner of a vessel.^
different States. In some it extends only to the merest EXHIBIT.3 1, V. To produce, offer, or
implements of household necessity; in others it in- expose for inspection: as, to exhibit an ac-
cludes the library of the professional man, however count, abalance, a bill in equity, a complaint
extensive, and the tools of mechanics;, and in many it or information, written interrogatories, a bill
embraces the homestead in which the family resides.
The creditor, when he parts with the consideration ot or note for payment.*
his debt, knows that the property so exempt cannot 3, n. A document produced and identified
be seized in payment. *
for use as evidence, before a jury, referee,
Exemption in favor of debtors is favored by liberal master, or in the course of pleading.
interpretations. The exemption law of a State bars "Where there are several such documents it is cus-
an execution on a judgment in favor of the United tomary to identify them as " Exhibit A," " B," or A 1,
States." A 2, etc.; and, when produced in evidence, to mark
Exemption laws seek to promote the general wel- upon them also the date, and the stenographer's or
fare of society by taking from the head of a family commissioner's name.
the power to deprive it of certain property by con- A document cannot be proved as an exhibit when it
tracting debts which will enable creditors to take such requires more to substantiate it than proof of the exe-
property in execution. Parties ought not, therefore, cution or of the handwriting.'
to be permitted to contravene the policy of the law " Ex. A " was held to mean " Exhibit A." •
by contract.^ EXHIBITION. Compare Entertain-
Waiver of the right, if permitted at all, must be in
distinct and unequivocal terms, and not rest upon in-
ment; License, 3; Prize-fighting.
Unless skating rinks are so conducted as to be
ference.*
clearly shown to be "public performances or exhibi-
"Widow's exemption. For the benefit of the
widow and children of a decedent.* tions," they cannot be brought within a statute requir-
See Ageicultdre; Expbessio, Unius, etc.; Heifer; ing a license to be taken out for such " performances
Homestead; Horse; Immujiitt; Implement; Pbiti- or EXIGENCY.
exhibitions."' Going forth; issuing:
leqe; Tax, 2; Team^Tool; Wagon; Works.
EXEQUATOTl. L. Let it be executed, mandate ; urgency. See Exire.
performed, discharged. A sheriff must execute a writ addressed and deliv-
ered to him, accordmg to its exigency, without inquir-
1. In French practice, placed at the foot of ing into the regularity of the proceeding.
a judgment obtained in another jurisdiction, The " exigency of a bond " refers to the event upon
authorized execution upon the judgment the happening or not happening of which the bond is
to become operative, by changing a contingent to an
within the jurisdiction to which it was ex- absolute liability.
emplified. EXIGENT. See Outlawry.
2. An order issued by the foreign de- EXIRE. L. To go away, go out ; to issue.
pai-tment of a state to which a consul or Exit. It has gone forth ; it has issued.
commercial agent is accredited, that he be TKe exit of a writ means simply the issuing ot that
permitted to discharge the duties of his ap- particular writ; and the word "exit," as a docket
pointment. entry, indicates that thei^rrithas in fact been formally
issued.

J Nichols V. Eaton, 91 V. S. 726 (1875), Miller, J.

Ne exeat. That he do not depart. A
' Fink V. O'Neil, 106 U. S. 280 (1882), cases; R. S. § 916. writ in equity practice issued to prevent a
'Kneettle v. Newcomb, 22 N. Y. 249 (1860); Crawford
V. Lockwood, 9 How. Pr. 547 (1854); Harper v. Leal, 10 ' Woolsey, Intern. Law, § 100; 13 Pick. 528.
» See 3 Kent, 161.
id. 276 (1854). Contfa, McKinney v. Reader, 6 Watts,
= L. ex-hibere, to hold out or forth.
(1837); Case v. Dunmore,23 Pa. 93 (1854); 24 id. 426;
34 id.
31 226. » See 3 Bl. Com. 450; Byles, Bills, 208; 2 Conn. 33.
« O'NaU V. Craig, 56 Pa. 161 (1867); Commonwealth v. « Lake v. Skinner, 1 Jao. & W. 9, 15 (1819); Plunkettv.
Kansas Com-
Dillon, 4 Del. Ch. 222 (1871), cases. See generally (1842).
Boyd, ib. 402 (1867). Exemptions of personalty,
mercial Bank r. Bank of New York, 4 Hill, 519
cases', 2 Kan. Law J. 146-49 (18S5), cases. « Dugan V. Trisler, 69 Ind. 555 (1880).
' HufN. man's Appeal, 81 Pa. 329 (1876) ; Nixon's Appeal,
6 W. C. 496 (1878). ' Harris v. Commonwealth, 81 Va. 240 (1883).
(38)
 EXISTING EXPERT
434

defendant from withdrawing his person .and EXPECTANCY. A present, vested, con-
property beyond the jurisdiction of the court tingent right to the future enjoyment of land.
before a judgment and execution can be had A future estate ; an estate in expectancy, or,
against him. simply, an expectant estate or interest.
In effect, a process to hold to bail, or to compel a Expectant. Contingent as to enjoyment ;
party to give security to abide the decree. Not
also, the person entitled thereto.
granted in the Federal courts unless a suit in equity is
An expectancy is always an estate in remainder, or
already commenced, and satisfactory proof is made a reversion. The idea is that the time of enjoyment
that the defendant designs quickly to depart from the
United States.^ is postponed — depends upon some subsequent circum-
stance or contingency. It is an executory estate, as
The full form of the writ is ne exeat repuhlKa; the
opposed to an estate in actual, present possession —
original in England was ne exeat regno or regnum.
an estate executed, i
The constitutions of the States declare that all per- In New York, any present right or interest which
sons have a natural right to emigrate from the State.'^
by possibility may vest in possession at a future day.'
EXISTING. SeeCBEDiTOE; Prb-bxist- See Bargain, Catching.
ING; Previous; Prioe. EXPENDITURE. An actual payment
"Existing laws," in the saving clause of an act, re- of money.
fers to laws in force at the passage of the act.^ To incur an expenditure is to make a payment, to
EXIT. See Exieb, Exit. expend money. To incur a liability and to incur an
EXONERATION; EXONEKETUK. expenditure are different things.^
See Onus, Exoneretur. EXPENSE; EXPENSES. Vary in
EXP. See Ex, Parte. meaning with the intention of parties and
EXPATRIATION.* Voluntarily leav- testators, and the circumstances of, particu-
ing one's native or adopted country to be- lar cases.* See Costs.
come a citizen in another country. EXPERIMENT. See Invention.
Expatriate. To leave one's country, re- EXPERT.* A person instructed by ex-
nouncing allegiance to it, with the purpose
of making a home and becoming a citizen in A skilled or experienced person ; a person
perience."
another country. having skill, experience or peculiar knowl-
Includes more, then, than changing one's domicil.^ edge on certain subjects or in certain profes-
Act of Congress of July 37, 1868, declares that "the
right of expatriation is a natural and inherent right of
sions ;a scientific witness.'
On questions of science, skill, trade, art or others
all people, indispensable to the enjoyment of the
of like kind, a person of skUl, soMetimes called an ex-
rights of life, liberty, and the pursuit of happiness; " pert, may not only testify to facts, but may give his
disavows the claim made by foreign states that hatu-
ralized American citizens are still the subjects of such opinion. His qualification must fh-st be shown to the
states; and enacts, further, that "any declaration, in- Whether
court. = a witness who is called as an expert has
struction, opinion, order, or decision of any officer of
the requisite qualifications to enable him to testify is
the United States which denies, restricts, impairs, or
a preliminary question for the court, the decision of
questions the right of expatriation, is declared incon-
which is conclusive, unless it appears upon the evi-
sistent with the fundamental principles of the repub- dence to have been en-oneous or to have been founded
Thelic." ' right is inalienable, and extends to individuals upon some error in law."
of the Indian race.'
The contrary is the English doctrine, expressed in f [2 BI. Com. 163.
the maxim nemo potest exuere pairiam.^ 2 1 N. Y. Rev. St. '723, § 10; ib. 725, § 35; 7 Paige, 76;
20 Barb. 462. See also 17 F. E. 323; 10 Ohio St. 106; 1
1 E. S. § 717; Lewis v. Shainwald, 7 Saw. 416-17 (1881), Story, Eq. § 3.34.
cases. 'Improvement of South Pass, 16 Op. Att.-Gen. 133
' 2 Kent, 34; 1 Bl. Com. 266; 2 Story, Eq. §§ -1466-74,; (1878).
3 Daniel, Ch. Pr. 1698-1714; Adams v. Whitcomb, 46 Vt. « See 1 Minn. 48; 1 Cliff. 158; 8 N. J. E. 506; 12 Ct. 01.
708 (1873). 179; 98 E.G. L. 199. , »
3 Lawrie v. State, 5 Ind. B36 (1854). See 63 lU, 117; 38 * L. expertus, practiced, experienced, skilled.
Iowa, 215. "Hyde v. Woolfolk, 1 Iowa, 167, 166 (1855): 2 Best,
* L. ex patria terra, from one's fatherland. Ev. B13; !54Cal. 517.
5 Ludham v. Ludham, 31 Barb. 489 (1860). 'Heald v. Thing, 45 Me. 394 (1868): Burrill; 52 Me.
« R S. §§ 1999, 2000 ; 9 Op. Att.-Gen. 3B6 (1859). 77; 41 N. H. 547; 50 id. 454; 48 Vt. 377.
'United States, ex rel. Standing Bear v. Crook, 5 5 Congress, &c. Spring Co. v. Edgar, 99 U. S. 657
Dill. 45.3 (1879). (1878), cases, Clifford, J.; 1 Greenl. Ev. $ 440; 20
8 2 Kent, 36; Morse, Citizenship, §179; 21 Am. Law Johns. 76.
Beg. 69-79 (1873); Canad. Law Times, Oct. 1863. > Perkins v. Stickney, 132 Mass. 218 (1882).
 EXPLOSION 485 EXPOSITIO

An expert may be asked his opinion upon a case that " explosion " is the cause, while " rupture " is the
hypothetically stated, or upon a case in which the
facts have been established; but he may not detei-mine effect.'
An insurance against "loss or damage by fire"
from the evidence what the facts are, to give an opin- covers a loss arising in part from an explosion and in
ion upon them. » part from combustion of gunpowder.'' See' Fire-
works.
"When the subject of a proposed inquiry is not a
matter of science but of common observatio n, upon EXPORT. To carry away : send out of
which the ordinary mind is capable of forming a a country. Exports: merchandise sent from
judgment, an expert may not state his opinion." one country to another.
An expert testifies as a specialist. He may be ex-
amined on foreign laws, and as to scientific authori- As used in the Constitution, Art. 1, sees. 8, 10, does
not include articles transported from one State .into
. tie^. Whether a conclusion belongs to him or not is
another.' See fm-ther Import.
for the court to say. He may give an opinion as to a
condition known in his specialty; as, the opinion of a EXPOSE. To set out, bring into view;
physician, surgeon, lawyer, scientist, practitioner in display, exhibit; show: as, to expose prop-
a business, artist, one familiar with a market, or with
erty to sale,* to expose the person.s See In-
decent.
values generally, or cognizant of danjage done. On
sanity, friends and attendants may give their opinion.
An expert may explain his opinion. His testimony is EXPOSITIO. L. A setting out — the
to be jealously scrutinized, particularly when given ex meaning of language; (explanation; inter-
parfe.^
The opinions of witnesses are constantly taken as pretation.
Contemporanea expositio optima et
to the result of their observations on a great variety
of subjects. All that is required is that the witnesses fortissima in lege. The explanation of
should be able properly to make the observations, the the time is the fittest and strongest in law.
result of which they give ; and the confidence bestowed Contemporaneous interpretation is the most
on their conclusions will depend upon the extent and satisfactory.
completeness of their examination, and the ability Words in constitutions, treaties, statutes, — old
with which it is made.*
writings generally, will be given the sense and scope
The testimony of an expert has not the weight of they had with the makers or framers. The courts will
testimony from observation. His statements are mere
not distm'b the construction put upon a doubtful law
opinions, and entitled to such weight only as his e!^-
by long usage.*
perience justifies.^ Contemporaneous construction " can never abro-
The weight of authority is that he cannot be com- gate the text, it can never fritter away its obvious
pelled to give a professional opinion without compen- sense, it can never narrow down its true lunitations, it
sation." can never enlarge its natural boundaries." '
If specially feed, the jury may consider the effect The contemporaneous construction of a statute by
on his credibility.' those charged with its execution, especially when it
See Design, 2 ; Handwriting ; Insanity, 2 (6) ; Inspec- has long prevailed, is entitled to great weight, and
tion, 2; Science. should not be disregarded or overturned except for
EXPLOSION. Sudden and rapid com- cogent reasons, and unless It be clear that such con-
bustion, causing violent expansion of the air, struction iserroneous.^ Compare Error, 1, Commu-
nis, etc.
and accompanied by a report.*
There is no difference in common use, between ' Evans v. Columbian Ins. Co., 44 N. Y. 151-62 (1870).
"explode" and "burst." . . The ordinary idea is ' Scripture v. iowell Mut. Fire Ins. Co., 10 Cush. 366
(ia52). See also 56 Md. 81; 81 Wend. 367; 3 Phila. 333;
> Dexter v. Hall, 16 Wall. 9, 26 (1872), Strong, J. 19 C. B. N. s. 126.
' Milwaukee, &c. E. Co. v. Kellogg, 94 U. S. 472 (1876), 5 Ejrp. Martin, 7 Nev. 142 (1871); Woodruff u.Parham,
cases; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 8 Wall, 131 (1868).
id. 618(1884); Carter «. Boehm, 1 Sm. L. C. 286, cases. * Adams Express Co. v. Schlessinger, 75 Pa. 256 (1874) ;
'1 Whart. Ev. |§ 434-66, cases. 12 Vt. 212.
* Hopt V. Utah, 120 U. S. 437-^ (1887), cases. » 2 Bishop, Cr. L. § 318; 46 N. J. L. 16.
» United States v. Pendergast, 32 F. E. 198 (i887). •Ames 11. Kansas, 111 U. S. 4(M (1884).
»J Whart. Ev. § 379, cases: Sprague, 276; 6 South. ' 1 Story, Const. § 407.
Law Eev. 793-809(1880), cases; 6 id. 706-18 (1880), cases; ' United States v. Johnston, 124 U. S. 253 (1888), cases,
12 Cent. Law J. 193 (1881), cases; 21 Am. Law Eev. 571- Harlan, J.; Cohens v. Virginia, 6 Wheat. 418 (1821),
77(1887), cases; Medico-Leg. J., Sept., 1883; 59 Ind. 15; Marshall, C. J.; Harrison v. Commonwealth, 83 Ky.
13 Abb. Pr. 207, 240. 171 (1885); United States D.,SayIor, 31 F. R. 548 (1887).
' 1 Whart. Ev. §§ 456, 380; Harvey v. Packet Co., 8 See also 5 Cranch, 22; 12 Wheat. 210; 99 U. S. 266; 101
Biss. 99 (1877). See generally Ware v. Starkey, 80 Va.
id. 461;
268; 107 92;
6 Col. id. 9406; 113 id.
id. 93; 671, 733';
6 Conn. 89; 116 id. 622;
119 111. 345; 31
36 F. E.
Kan.
204 (1886); 13 Bradw. 343; 70 Iowa, 432, 474; 30 Mmn.
411; 2 Utah, 189; 41 N. Y. 647; 43 Pa. 12; 3 Tex. Ap. 157. Ill; 83 Ky. 103; 17 Mass. *144; 44 N. J. L. 22; 16 Ohio
* United Life, &c. Ins. Co. v. Foote, 22 Ohio St. 348 St. 619; 70 Pa. 203; 73 id. 84; 94 id. 249; 14 S. C. 195; 66
(1872). Wis. 468.
 EXPRESS 436 EXPEESSIO

EXPRESS. 1. To declare in terms, state The regulation of the business of an express com-
in words, mention distinctly, avow openly. pany upon the property of a railroad company, in the
absence of legislation, is for the parties themselves to
Express; expressed. Openly tittered determine. . . In a few States, by recent statutes or
and avowed ; stated or mentioned in words, by judicial interpretation, railroad companies are re-
oral or written; made known; opposed to quired to furnish equal facilities to all express com-
implied: left to implication or inference ;^s, panies desiring to use their property. . . But the
reason is obvious why special contracts are necessary.
express or an express or expressed — abroga- The transportation required is of a kind which must,
tion, assumpsit or undertaking, condition, if possible, be had for the most part on passenger
consent, consideration, contract, covenant, trains. It requires not only speed, but reasonable cer-
dedication, malice, repeal, trust, warranty,! tainty as to the quantity that will be carried at one
qq. V. Seevalso Expekssio. time. As the things carried are to be kept in the per-
sonal custody of the messenger of the express com-
(2) Intended for a special service ; contract- pany, a certain amount of car space must be set apart,
ing for expedition in the transportation of and, as far as practicable, be put in the exclusive pos-
packages: as, express — company, .business, session of the expressman in charge. As the business
facilities, matter. to be done is " express " it implies access to the train
for loading at the latest, and for unloading at the
Express ear, See Bueglaey, p. 141, n. 2. earliest, convenient moment. All this is inconsistent
Express companies are organized to with the idea of an express business on trains free to
carry small and valuable packages rapidly, all express carriers. Passenger trains are primarily
in such manner as not to subject them to the for the transportation of passengers and their bag-
danger of loss and damage which attends the gage. This must be done with reasonable promptness
and comfort to the passenger. The express business
transportation of heavy and bulky articles of is in a degree subordinate to the passenger business,
commerce.2 See Package. and it is consequently the duty of the railroad com-
Express companies are common carriers. Origi- pany in arranging for the express to see that there is
nally formed to transport money, treasure, and other as little interference as possible with the wants ofpas-
valuables, they have become carriers of goods and sengers. This implies a special understanding as to
merchandise generally.^ the amount of car space that will be afforded, and the
Before railroads came into use, common carriers by conditions on which it is to be occupied, the particular
land delivered parcels to the consignees. Railway trains that can be used, the places at which they shall
companies were held bound only to carry goods to their stop, the price to be paid, etc. It by no means fol-
destination, and put them safely in a warehouse. To lows that -because a railroad company can serve one
remedy this defect in the railway transportation of express company in one way it can as well serve an-
packages of great value in small compass, express other company in the same way. . . As long as
companies were instituted. They undertake to deliver the public are served to their reasonable satisfaction,
to the consignee in person.* it is a matter of no importance who serves them.
The style " express forwarders " does not necessa- The railroad company performs its whole duty when it
rily make them simple forwarders.* al^ords the public all reasonable express accom-
' What they are is to be determined by the nature of modations. The company may choose its own means
their business, not by contracts made respecting their of carriage, always provided they are such as to in-
liability.* sure reasonable promptness and security.'
Express business. Involves the idea of See Carrier, Common.
regularity, as to route or time, or both. In EXPRESSIO. L. Definite statement
the act of June 30, 1864, § 104 (13 St. L. 276), or enumeration; expression.
does not cover what is done by a person who Expressio unius, exclusio alterius.
The statement of one thing is the exclusion
carries' goods at special request, not running
regular trips nor on regular routes,' of another. Sometimes put, indusio unius,
1 See 8 Bl. Com. 443 ; 101 V. S. 670. etc., — " including one excludes all others." ^
' Southern Express Co. u. St. Louis, &c. R. Co., 10 Still another form is, expressum faeit oes-
F. E. ai3 (1882), Miller, J. See 3 Redf. Railw. 15, Car- sare taoitum: the expressed controls the
riers, 60, § 33: American Union Express Co. v. Robin-
son, 72 Pa. 278 (1872). 'Express Cases: Railroad Companies (Memphis &
' Southern Express Co. v. Cook, 44 Ala. 473 (1870). L., St. Louis, I. M. & S., and Missouri, K. & T.) v. Ex-
<8 Eedf. Railw. 21; United States Express Co. v. press Companies (Southern and Adams), 117 U. S. 1, 23
Baokman, 28 Ohio St. 161 (1875). (1886), Waite, C. J. Commented on, Pfister v. Central
' Christensou v. American Express Co., 16 Minn. 883 Pacific R. Co., 70 Cal. 183 (1886). See also 67 Me. 194;
(1870). 115 Mass. 416; 4 Brewst. 663. Contra, 8 F. E.4C5; 3 id.
• Bank of Kentucky v. Adams Express Co., 93 U. S. 693, 775; 4 id. 481 ; 6 id. 427; 8 id. 799; 10 id. 213, 869; 15
181-85 (1876). id. 568; 18 id. 671, 672; 19 id. 21.
' Beteer v. Wood, 109 U. S. 187 (1883). »12F. R. 414; 6 Col, 83, 94.
 437 EXTENT
EXPRESSIO

unmentioned ; an unequivocal statement They are never more applicable than when applied
to the interpretation of a statute.'
prevails over an implication.! See Incident; Remedy; Surplusage.
Express mention ot one act, condition, stipulation,
class or number, person or place, implies the exclusion EXPRESSIONS, GENEEAL. See
of another or others not mentioned. The maxim re- Construction ; Dictum, 3; Expeessio, Unius,
stricts what is implied by what is expressed, what is etc. ; Opinion, 3.
general by what is particular and specific.'' EXPULSIOIf. See Amotion; Fran-
The mode provided in a constitution for its amend-
ment is the only mode in which it can be amended. chise, Disfranchise; Eviction.
The ordinary rule is, that where power is given to do EXPUNGE. See Alter, 3; Cancel;
a thing in a particular way, there afiflrmative words, Scandal, 3.
marking out the way, by implication prohibit all other EXPURGATORY. See Oath.
ways.' EXTEND. To stretch or lengthen out;
It would have been impracticable for the framers
of the Constitution to have enumerated all the means to continue, enlarge, expand. Compare En-
by the use of which the powers expressly conferred large; Extent; Renew.
upon the government of the United States should be To extend a charter is to give one which now exists
exercised. A sovereign must have a choice of means greater or longer time in which to operate than that
by which to exercise sovereign powers.* See Nkces- to which it was originally limited.*
srrY. In its primary sense, when applied to a railroad
Offenses not mentioned in a treaty of extradition track or other line, may import a continuation of the
are excluded from its operation.' line without a break. But power to authorize a rail-
A special provision in an act for levying a tax of a way "to extend the location of its tracks" maybe
fixed per centum excludes the levy of a higher, al- held to include the location of an additional track, not
though necessary, tax." connected with existing tracks except by those of an-
The creation of specific means'for exercising pow- other corporation. 3
ers of municipal government excludes all other For proper cause shown, a court will usually extend
means.' the time within which a thing was previously directed
The charter of a corporation is the measure of its to be done; as. the taking of testimony.*
powers, and the enumeration of those powers implies Extension. Imports the continuance of
the exclusion of others.'
A general statement of the duties for which a bond
an existing thing.5 ,
Since the act of March 2, 1861, c. 88 (12 St. L. 249),
is given will be construed to include only such other
patents are granted for the term of seventeen years,
duties ot the same kind as were not specifically enu- and further extension is forbidden, except as to de-
merated."
The expression, in a policy of insurance, that a ves- In the construction of statutes a term of an inferior
sel should proceed to a port in Cuba and thence to class will not be extended to a superior class. See
Europe, implies that she should visit no other port in Genebai., 6.
Cuba.'» Creditors extend, that is, increase the time of pay-
An express guaranty of a bill or note cannot be con- ment ot their claims, by agreeing to wait a certain
verted into an indorsement. ' * time after the claims become due.
Where a party specifies an obiection to the admis- EXTENT. 1. In common parlance,
sion of evidence it must be considered that he waives
varies somewhat in meaning according to
or has no ground for other objections.'^
The maxims express the principle of the rule that the subject to which it is applied, and as that
excludes such parol testimony as would vary the terms changes, it may as well refer to time as to
of a written instrument.
They also serve to prevent fraud and perjury." 628; 18 Ct. CI. 117, 457; 31 J". E. 220; 32 id. 60, 564; 4 Del.
Ch. 135; 66 Ga. 108; 87 Ind. 291; 59 Iowa, 77; 36 Kan.
> 71 Ala. 87; 82 id. 629; 62 Cal. 639; 4 Wash. C. C. 186. 637; 34 La. An. 225; 98 Mass. 29; 117 id. 448; 10 Minn.
' Broom, Max. 651, 664. 113; 30 id. 297; 44 N. J. L. 45; 3 N. Mex. 56; 73 N. Y.
'Be Constitutional Convention, 14 E. I. 651 {18E3), 440; 59 Pa. 178; 71 id. 88, 429; 76 id. 03, 125, 501 ; 80 id.
cases. See also Smith v. Stevens, 10 Wall. 326 (1870). 412; 19 S. C. 147; 80 Va. 327, 373, 374; 60 Wis. 252; 62 id.
* 2 Story, Const, § 1213. 41; 66 id. 383, 565; 67 id. 89; L. R., 3 Exch. 177; 2 Pars.
» United States v. bauscher, 119 U. S. 420 (1886). Cont., 6ed.,515(r, t).
.« United States v. County of Macon, 99 U. S. 5C0 (1878). ' Coast-Line E. Co. v. City of Savannah, 30 F. E. 649
' Mayor of Nashville v. Bay, 19 Wall. 475 (1873). (1887).
' Thomas v. West Jersey E. Co., 101 U. S. 82 (1879). 2 Moers v. City of Reading, 21 Pa. 201 (1868).
' South V. Maryland, 18 How. 402 (1855). 8 South Boston R. Co. v. Middlesex E. Co., 121 Mass.
"Hearne v. Marine Ins. Co., 20 Wall. 493 (1874). 489 (1877), Morton, .1. See also A'olmer's Appeal, 115
" Central Trust Co. v. Nat. Bank of Wyandotte, 101 Pa. 166 (1887): 19 W. N. C. 183.
V. S. 70 (1879). * See James v. McMillan, 65 Mich. 136 (1884).
"Evanston v. Gunn, 99 U. S. 665 (1878). » Brooke v. Clarke, 1 B. & Al. *403 (1818).
« See E. S. § 4924.
" See Smith v. McCullough, 104 U. S. 25 (1881); 109 id.
 EXTENUATION 438 EXTRADITION

No public ofBcer may take other fees or rewards

space, or proportion ; especially so, when ap-
than such as are given by virtue of some statute.'
plied to interests, as in patents, for a par- The taking or obtaining of anything from another
ticular term of years, l by a public officer by means of illegal compulsion or
3. At common law, a writ of execution by oppressive exaction. The offense, by § 3169, Rev. St.,
which the defendant's body, lands, and goods is the same as extortion at common law.*
may all be taken at once, to compel payment Compare Exaction; Blackmail; Oppression, See
Payment, Involuntary; Protest, 1.
of a debt. At present, concerns lands only.
Originally enforced a recognizance or debt ac- EXTKA. A Latin preposition and ad-
knowledged on a statute merchant or staple. The verb, contracted from extera {parte) : exter,
sheriff caused the lands and tenements to be appraised or exterus, outward : ex; out.
to their full " extended " value that it might be known 1. On the outside: outside; without; be-
how soon the debt would be satisfled." Compare
;Statute, Merchant.
Sometimes denotes a writ by which the creditor may 3. Except; besides.
obtain possession of the debtor's land till the debt be
yond.
3. In extra costs, extra services, extra
paid.^ See Inquest, Of lands. wages, and the noun extras, supposed to be
EXTENUATION. See Aggravation.
an abbreviation of " extraordinary : " beyond
EXTINGUISH.* To put out or quench : what is common, additional to what is due
to destroy, annihilate ; to pay in full, satisfy : or expected.
as, to extinguish a debt, an estate, a right to See Dermott v. Jones, under Contract, Executed.
rent, a right of way, the rights of a corpora- Extra-dotal. Beyond dower. See Dotal.
tion. Extra-hazardous. Specially risky. See
Extingtushment. Whenever a right, Hazard.
title or interest is destroyed or taken away Extra-judicial. Boyond the jurisdiction ;
by the act of God, operation of law, or act of not judicial; outside of, or out of, court: as,
the party. 5 an extra-judicial — act, admission, decision,
Extinguishing one debt by substituting another is oath. See Judge ;. Judicial.
always a question of intention.' Extra-o£B.cial. Outside the duties of an
See Release; Merger, 1; Satisfy, 2.
office, q. V.
EXTORTION.' That abuse of public jus-
Extra-territorial. Beyond the terri-
tice which consists in an officer's unlawfully
taking, by color of his ofifice, from any man, tory, q.V.
any money or thing of value that is not due EXTRACT. See Copt; Estreat; Evi-
dence, Secondary ; Review, 8.
to him, or more than is due, or before it is
due.* Whence extorsively. EXTRADITION.^ ' Surrender, by one
government to another, of a person who has
Obtaining money or other valuable thing
by compulsion, actual force, or the force of fled to the tei-ritory of the former to escape
arrest and punishment under the criminal
motives applied to the will.^
The wrongful exaction of money. The law, at the laws of the latter. Whence extradite, ex-
time of payment, creates an obligation to refund. traditable, non-extraditable.
Notice to refund is not necessary, therefore, vinless to International or foreign extradition.
serve to rebut the inference that the payment was
Exists between independent nations. Inter-
voluntary or made through njistake.'"
State extradition. Exists between indi-
1 Wilson V. Rousseau, 4 How. 698 (1846). vidual States of the same nation or union.
» 3 Bl. Com. 430. For a crime committed against the law of a State,
s See 1 Troub. & H. CPa.) § 12S2. extradition of the offender from a foreign country
* L. extinguere, to quench. must be negotiated through the Federal government^
'Moultrie v. Smiley, 16 Ga. 343 (1854): 3 Bac. Abr.; conformably to the existing treaty.
SO Sa. 403; 4 McCord, 101; 88 N. J. L. 20. 1. As between nations, the surrender of a
» Potter V. McCoy, 26 Pa. 482, 460 (18S6). See 3 W. &
S. 377; 4 Watts, 379; 6 Ma. 26; 35 N. H. 421; 12 Barb.
fugitive is a matter of conventional arrange-
128; 29Vt. 488. 442: 2 Bish. Cr. L. § 300; 4 Conn. 480; 3 Sneed, 162; 7
7 L. extorquere; to twist or wring out. Pick. 287.
"4 Bl. Com. 141; 6 Cow. 663. 1 E. S. §§ 3169, 5481: United States v. Waltz, 3 Saw.
474 (1875).
' [Commonwealth v. O'Brien, 13 Cush. 90(1853), Shaw,
Chief Justice. 2 United States v. Deaver, 14 F. E. 597 (18S2), Dick,
>° United States Bank v. Bank of Washington, 6 Pet. District Judge.
*19(1833). See also 3 skw. 474; 14 F. E. 597; 35 Ark. ^ L. ex-tradere, to deliver over.
 EXTRADITION 439 EXTRADITION

ment, not a matter of right. The obligation Nicaragua, June 25, 1870 (17 St. L. 815).
Peru, Sept. 12, 1870 (18 St. L. 719).
is not iraposed by the law of nations. De-
Orange Free State, Deo. 22, 1871 (18 St. L. 751).
liveries not provided for by treaty stipulation Feuador, June 28, 1872 (18 St. L. 756).
have been made in many cases, but always Belgium, March 19, 1874 (18 St. L. 804); June 13, 1883
(22 id. 972).
upon the principle of comity.'
The trespass of a kidnaper, unauthorized by either 991).Ottoman Empire, Aug. 11, 1874 (19 St. L. 572).
government, is not a case provided for in the treaties Spain, Jan. 5, 1877 (19 St. L. 650); Aug. 7, 1882 (22 id.
hitherto made, and the remedy for the trespass is hy
a proceeding by the government whose law he may Netherlands, May 23, 1880 (21 St. L. 769).
have violated, or by the party injured. How far a Luxemburg, Oct. 29, 1883 (23 St. L. 808).
forcible transfer, made with no reference to the exist- Japan, April 29, 1886 (24 St. L. 1015).'
ing treaty, may be set up against the right to try the Treaties have also been made with Indian tribes by
accused, is for the State court to decide: it presents which they stipulate to siurender persona accused of
no question upon which the Supreme Court can review crime against the laws of the United States; and some
the decision.^ provide for the mutual extradition of offenders."
Treaties have been made between the United States Treaties also provide for the mutual surrender of
and the following foreign states, for crimes specified deserting seamen.
and defined in the treaties themselves respectively: Most of the treaties prescribe the evidence required
Great Britain, Aug. 9, 1842 (8 St. L. 676). to authorize an order of extradition.
France, Nov. 9, 1843 (8 St. t. S82); Feb. 24, 1845 (i6. . All hearings under treaty stipulation or convention
617j; Feb. 10, 1858 (11 id. 741). shall be held on land, publicly, and in a room or of&ce
Hawaiian Islands, Dec. 20, 1849 (9 St. L. 981). easily accessible to the public.^ . . On the hearing
Swiss Confederation, Nov. 25, 1850 (U St. L. 587). of any case, upon afiidavit being filed by the person
Prussia and Germanic Confederation, June 16, charged, that he cannot safely go to trial without cer-
1852 (10 St. L. 964); Nov. 16, 1852 {ib. 964). tain witnesses, what he expects to prove by each of
Bavaria, Sept. 12, 1853 (10 St. L. 1032). them, that he is not possessed of sufficient means and
Hanover, Jan. 18, 1855 (10 St. L. 1138). is actually unable to pay the fees of such witnesses,
Two Sicilies, Oct. 1, 1855 (11 St. L. 651). the judge or commissioner before whom the hearing ia
Austria, July 3, 1856(11 St. L. 691); re-declared Sept. had may order that they be subpoenaed; the costs to
SO, 1870 (17 id. 835). be paid as similar fees are paid in the case of wil>-
Baden, Jan. 30, 1857 (11 St. L. 713); re-declared July nesses subpoenaed in behalf of the United States.* . .
19, 1868 (16 id. 733). - Fees and costs shall be certified to the secretary of state
Sweden and Norway, March 21, 1860 (12 St. L. 1125). of the United States, who shall authorize payment of
Venezuela, Aug. 27, 1860 (12 St. L. 1143). the same out of the appropriation to defray the ex-
Mexico, Dee. 11, 1861 (12 St. L. 1199); re-deolared penses of the judiciary, and shall cause the amount
July 10, 1868 (15 id. 688). to be reimbursed by the foreign government by whom
Hayti, Nov. 3, 1864 (13 St. L. 711). the proceeding may have been instituted.* . Where
Dominican Bepublic, Feb. 8, 1867 (15 St. L. 473). any depositions, warrants, or other papers or copies
Italy, March 23, 1868 (11 St. L. 629); Jan. 21, 1809 (16 thereof shall be offered in evidence upon the hearing
id. 767); June 11, 1884 (24 id. 1001). of any case, the same shall be received as evidence
Salvador, May 23, 1870 (18 St. L. 693, 796). for all the purposes of such hearing if they shall be
legally authenticated so as to entitle them to be re-
1 Be Metzgar, 5 How. 188 (1847); United States v. Da- ceived for similar purposes by the tribunals of the
vis, 2Sumn. 482 (1837) ; United States v. Eauscher, 119 foreign country from which the accused shall have es-
U. S. 411 (1886); 12 Blatch. 391; 59 N. H. 110; 14 How. caped, and the certificate of the principal diplomatic
112; 16 Alb. Law J. 444; 1 Kent, 36; Woolsey, Int. Law, or consular officer of the United States resident in
§§77-^. such foreign country shall be proof that any deposi-
» Ker V. Dlinois, 119 U. S. 436 (Dec. 6, 1886), Miller, J. tion, warrant, or other paper or copies thereof, so
Ker, wlio was charged with larceny in Cooli county, offered, are authenticated in the manner required by
Illinois, fled to South America. He was apprehended
in Peru by one Julian (who had proper extradition thisThe
act.'
complaint made before the United States com-
papers), forcibly placed on board the Umted States missioner should show on its, face that he who makes
vessel Essex, transferred at Honolulu to the City of
it is a representative of the foreign government.'
Sydney, carried to San Francisco, and thence taken to
Cook county, where he was convicted and sentenced. 1 See generally R. S. §§ 5270-80; 23 Cent. Law J. 247
Same case, 110 111. 627; 51 Am. B. 706; 35 Alb. Law J. 69. (1886) — London Times.
2 See 11 St. L. 612, 703.
As to abducting an escaped criminal from another
State, see Mahon v. Justice, Jailer, etc., 127 U. S. 700 3 Act 3 August, 1882, sec. 1 : 23 St. L. 215.
< Ibid., sec. 3.
<1888), in which case Mahon, residing in West Virginia, " Ibid., sec. 4.
was, by persons acting as private citizens, forcibly
and without process conveyed back to Kentucky, to be 'Ibid., see. 5. Sec. 2 prescribes the fees to be paid
tried for murder. The circuit court of Kentucky, and, to commissioners. Sec. 6 repeals Act 19 June, 1876:
later, the Supreme Court of the United States, refused B. S. § 6271.
to discharge the accused upon a writ ot habeas corpus. ' Be Herris, 32 F. B. 683 (1887).
 EXTRADITION 440 EXTRADITION

Most of the treaties exclude '* political offenses" which the demand is made also uniformly exercises a
from their operation, that is, offenses incidental to and discretion in weighing the evidence of the crime, and
forming part ot a political disturbance.' the character of the offense. . . And as the States,
Some treaties also provide that a citizen or subject although united as one nation for certain specified
of the comitry on which the demand is made shall not purposes, are yet, as far as concerns their internal
be surrendered. government, separate sovereignties, independent of
Under the Ashburton Treaty of 1842, between Great each other, it was deemed necessary to show, by the
' Britain and the United States, a fugitive who has been terms used, that this compact was not to be regarded
surrendered to this country cannot lawfully be tried as an ordinary treaty for extradition between nations
for any other offense than that for which he was ex- altogether independent of each other, -but was in-
tradited — at least until he has had an opportunity to tended to embrace political offenses against the sover-
■ return to the country from which he was taken. Na- eignty of the State, as well as all other crimes. -\nd
tional honor requires that good faith be kept in this as treason was "felony" it was necessary to insert
regard.' those words, to show, in language that could not be
Act of 33 and 34 Vict. (1870) c. 53, sec. 3, provides mistaken, that political offenders were included in it.
that a fugitive shall not be surrendered to a foreign For this was a compact binding the States to aid each
state unless provision is made *' by the law of that other in executing their laws and preserving order
state, or by arrangement," that, "until he has been within their respective confines. . '. As early as
restored or had an opportunity of returning to her 1643, certain plantations in New England pledged
Majesty's dominions," he shall not "be detained ^r themselves to deliver up fugitives from justice found
tried in that foreign state for any offense committed within their borders. The advantages derived from
prior to his surrender, otheE than the extradition this compact doubtless suggested the introduction
crime." ^ into the Articles of Confederation of the provision
2. Extradition as between the States, Ter- that " If any person guilty of, or charged with treason,
felony, or other high misdemeanor in any State, shall
ritories, and the District of Columbia, is reg-
flee from justice, and be found in any of the United
ulated by the Constitution and by statutes.
States, he shall upon demand of the Governor or Ex-
The former provides that " A Person charged ecutive power, of the State from which he fled, be
in any State with Treason, Felony, or other delivered up and removed to the State having, jurisdic-
Crime, who shall flee from Justice, and be tion of the offense. Full faith and credit shall be
,given in each of these States to the records, acts and
found in another State, shall on Demand of
judicial proceedings of the courts and magistrates o£
the executive Authority of t^he State from every other State." (Art. IV, sec. 2-3.) The colonies,
which he fled, be delivered up, to be removed having learned from experience the necessity of this
to the State having Jurisdiction of the provision for the internal safety of each of them, and
to promote concord and harmony among all their
Crime." * members, incorporated it in the Constitution substanr
The words "treason, felony, or oth^r crime" em-
brace every act forbidden and made punishable by a tially in the same word's, but substituting the word
"crime" for "high misdemeanor," thereby showing
law of the State. The words "treason and felony" the deliberate purpose to include every offense known
were introduced to guard against any restriction of
to the law of the State from which the party charged
the word "crime," and to prevent the provision from had fled. . . The compact gives the right to the ex-
being construed by the rules and usages of independ- ecutive authority of the State to demand the fugitive
ent nations in compacts for deliverijig up fugitives
from the executive authority of the State in which he
from justice. According to these usages, even where
the obligation to deliver the fugitive was admitted, is found. The right to " demand " implies that it is an
absolute right; and it follows that there must be a
persons who fled on account of " political offenses " correlative obligation to deliver, without reference ta
were almost always excepted; and the nation upon
the character of the crime charged, or to the policy or
>2 Steph. Hist. Cr. L. Eng. 70; 2 Law Quar. Eev. laws of the State to which the fugitive has fled. This
177-87 (1886), cases; Kentucky v. Dennison, post. is the construction put upon this Articlp in the Set of
» United States v. Rauscher, 119 U. S. 411-33 (Deo. 6, Congress of 1793, a statute passed by many who had
1886), cases. Miller, J.; Waite, C. J., dissenting. Same been f ramers of the Constitution.
case, 26 Am. Law Eeg. 241-46 (1887), cases; 85 Cent. If the duty of providing by law the regulations nec-
Law J,. 267(1887); 35 Alb. Law J. 204r^ (1887), cases, essary to carry the compact into execution had been
S. T. Spear. See also 19 Cent. Law J. 22-24 (1884), left to the States, each State might have required dif-
cases. Evidence under treaty with Great Britain, ferent proof to authenticate the judicial proceeding
Exp. McPhun, 30 F. E. 57 (1887). Our state depart- upon which its demand was to be founded; and as the
ment and extradition, 20 Am. Law Rev. 540 (1886). duty of the governor of the State in which the fugitive
2 See also Exp. Coy, 32 F. E. 911 (1887), Turner, J. ; is found is merely ministerial, without the right ta
ib. 917, cases; Be MUler, 23 id. 32 (1886), cases. Clarke, exercise either executive or judicial discretion, he
Extrad. XXXVI; Spear, Inten. Extrad. 158-69; 14 Alb. could not lawfully issue a warrant to arrest an indi-
Law J. 85-99 (1876); 6 Can. Law J. 227; 8 Blatch. 131. vidual without a law of the State or of Congress to
See generally 10 Am. Law Eev. 617 (1876); 17 id. 316-49 authorize it. These difficulties presented themselves
(1883). in 1791, in a demand by the governor of Pennsylvania
» Constitution, Art. IV, sec. 2, cl. 2. upon the governor of ^Virginia, and both of them
 EXTRADITION 441 EXTRADITION

brought the subject before the President, who imme- It is within the power of each State, except as her
diately submitted the matter to the consideration of authority may be limited by the Constitution, to de-
Congress. This led to the act of February 12, 1793. clare what shall be offenses against her laws, and cit-
Difficulty as to authenticating the judicial proceeding izens of other States, when within her jurisdiction, are
was removed by the Article in the Constitution which subject to those laws. In recognition of this right, the
declares that " Full Faith and Credit shall be given in words of the clause in reference to fugitives from jus-
each State to the public Acts, Records, and judicial tice were made sufficiently comprehensive to include
Proceedings of every other State. And the Congress every offense against the demanding State, without
may by general Laws prescribe the Manner in which exception as to the nature of the crime. The demand
such Acts, Records, and Proceedings shall be proved, may be made upon the governor of a Territory. Upon
and the Effect thereof." (Art. rV, sec. 1.) The pro- the executive of the State in which the accused is
vision for the deliveiy of fugitives was doubtless in found, rests the responsibility of determining, in some
mind when this power was given to Congress. legal mode, whether he is a fugitive from the justice
The act of 1793, as re-enacted in the Revised Stat- of the demanding State. He does not fail in his duty
utes, reads as follows; "Sec. 5278. Whenever the ex- if he makes it a condition precedent to surrender that
ecutive authority of any State or Territory demands it be shown by competent proof that the accused is in
any person as a fugitive from justice of the executive fact a fugitive from such State.'
authority of any State or Territory to which such per- The accused is entitled to have the lawfulness of
son has fled, and produces a copy of the indictment his arrest inquired into, by a coiu*t of the State or of
found or an affidavit made before a magistrate of any the United States, by a writ of Jiabeas corpus. . .
State or Territory, charging the person demanded It must appear to the governor of the State on whom
with having committed treason, felony, or other crime, the demand is made that the person demanded is sub^
certified as authentic by the governor or chief magis- stantially charged with a crime against the laws of the
trate of the State or Territory from whence the per- demanding State, by an indictment or an affidavit,
son so charged has fled, it shall be the duty of the certffied as authentic by the governor of the latter
executive authority of the State or Territory to which State; and that the person is really a fugitive from
such person has fled to cause him to be arrested and the justice of that State. The first of these prereq-
secured, and to cause notice of the arrest to be given uisites is «. question of law, always open upon the
to the executive authority malnng such demand, or to face of the papers to judicial inquiry, on an applica-
the agent of such authority appointed to receive the tion for a discharge. The second is a question of fact^
fugitive, and to cause the fugitive to be delivered to which the governor upon whom the demand is made
such agent when he shall appear. If no such agent must decide, upon such evidence as he may deem satis-
appears within six months from the time of the arrest, factory. Acertified copy of the law alleged to have
the prisoner may be discharged. All costs or ex- been broken need not be furnished. The courts of the
penses incurred in apprehending, securing, and trans- United States take judicial notice of the laws of all the
mitting such fugitive to the State or Territory malcing States. To be a " fugitive from justice " it is not neces-
such demand shall be paid by such State or Territory. " sary that the accused should have left the State after
" See. 5279. Any agent, so appointed, who receives the an indictment found, or to avoid a prosecution antici-
fugitive into his custody, shall be empowered to trans- pated or begun, but simply that, having within a
port him to the State or Territory from which he fled. State committed that which by its laws constitutes a
And every person who, by force, sets at liberty or res- crime, when he is sought to be subjected to its crim-
cues the fugitive from such agent while so transport- inal process to answer for his offense, he has left its
ing him, shall be fined not more than five hundred jurisdiction and is found within the territory of an-
dollars, or imprisoned not more than one year." (1
St. L. 302, oh. 7, S§ 1,2.)
The judicial acts which are necessary to authorize other.2
emor of Ohio, 34 How. 66, 99-110 {I860), Taney, C. J.
the demand are plainly specified m the foregoing en- This was a motion for a rule on Dennison to show
actment; and the certificate of the executive author- cause why a mandamus should not be issued by the
ity is made conclusive as to their verity when pre- Supreme Court, commanding him to cause one LagO'
sented to the executive of the State where the fugitive to be surrendered to the authorities of Kentucky.
is found. He has no right to look behind them, or to Lago, a free man of color, after being indicted for as-
question them, or to look into the character of the sisting aslave to escape, fied to Ohio. The governor
crime specified in the judicial proceeding. His duty is of that State, on the advice of the attorney -general, re-
merely ministerial — to cause the party to be arrested fused to deliver up the fugitive, on the ground that the
and delivered to the agent of the State where the
act for which Lago was indicted was neither " trea-
crime was committed. The words " it shall be the son," nor " felony " nor any " other crime," either ab
duty " were not used as mandatory and compulsory, common law or under the laws of Ohio.
but as declaratory of the moral duty which the com- 1 Exp. Reggel, 114 U. S. 642, 650, 6.53 (1885), Harlan, J.
pact between the United States and each State created, Reggel was indicted in Pennsylvania for obtaining
when Congress had provided the mode of carrying it goods by false pretenses, and fled to Utah.
into execution. There is no power delegated to the = Roberts v. Eeilly, 116 U. S. 80, 94-97 (1885), Mat-
general government to use coercive means to compel thews, J. Roberts petitioned the District Court for
the governor of a State to discharge his duty in this the Southern District of Georgia for a discharge, al-
respect.i ^ leging that he was illegally restrained of his liberty
'Commonwealth of Kentucky v. Dennison, Gov- by ReUiy, agent of the State of New York, in which
 EXTRAORDINARY 443 FACERE

A State may legislate In aid of t'he enactments of EABRICATE. In. a statute against
Congress.* And,, as seen above, the courts of a State
"fabricating" a voting paper, impotts an
may pass upon the legality of an arrest.*
The provision is a national police regulation.^
act done with criminal intent ; implies fraud
or falsehood, a false or fraudulent concoc-
See FuGiTivEi' Requisition; Expressio, Unius, etc.
EXTBAOEDINAEY. 1. The utmost; tion, by one knowing that it is wrong and
the highest under the circumstances: as, contrary to law. 1 Compare Foege, 3.
extraordinary care or diligence. See Cake ; EAC. See Faceee.
Negligence. PACE. 1. As a thing is made: impres-
3. Out of the common order; rot usual or sion ;expression ; appearance, g. v. : as, the
regular : as, extraordinary jurisdiction, rem- face of a bill, bond, note, check, draft, judg-
edies. See Chancbby, 1 ; Minister, 3. ment, record.
Poverty or financial embarrassment is not an "ex- A purchaser must look at the face of a bond,' g. v.
traordinary circumstance," within the meaning of a, A contract,on its face, may be ultra vires.^
statute excusing laches in proceeding with a cause.* 3. The sum, less interest, which appears to
As between ship-owner and insurer, the former is be due by an instrument or record : as, the
bound to provide against ordinary^ while the latter in-
sures against extraordinary perils. By " extraordi- face of a judgment.*
nary "is not meant what has never been previously
8. Presence; sight; front; view: as, for
heard of, or is within former experience, but what is parties or witnesses to meet face to face;
beyond the ordinary, usual, or common.^ that is, front to front, and, perhaps, facing
EXTRAVAGANT. See Impeovidbnt;
the court or jury. See Confeont; Con-
Spendtheipt. tempt.
EXTREME. See Cruelty; Penalty.
4. Mere appearance or aspect ; phase ; sem-
EXTREMIS. See In Extremis. blance, likeness : as, an act intended to give
EXTRINSIC. See Evidence. an honest face to a transaction. See Inten-
EYE. See Mayhem ; Security, Personal. tion.
PACERE. L. To make, do, perform.
Compare Fieri.
Pac simile. Made like in appeUrance ; a
copy.
F.
Said marks,
ofqQ.^.counterfeits, design^, signatures, trade-
F. 1. Was anciently branded upon the
•ear or face of a person guilty of falsity, Paeias. That you make or cause to be
fighting, or of a felony admitted to clergy. made. See Execution, 3, Writs of.
Abolished by 7 and 8 Geo. IV (1837), c. 28, s. 6: Pacies. Appearance; view. SeePiOMUS,
8. Stands for words sometimes abbrevi- Prima, etc.
ated: as, first, French. Pactum. A thing done; a fact. See
E. P. Fieri facias. See Execution, 3, Factum.
Writs of. Qui facit per alium, facit per se. He
P. J. First judge or justice. who acts through another acts by himself.
The act of the agent is the act of the prin-
JKoberts stood indicted for the larceny of railroad
bonds. cipal— within the scope of the employment.
The authorized act of an agent is imputed to his
1 Exp. Ammons, 34 Ohio St. 518 (1878); Wilcox v.
Nolz, ih. 520 (1878), oases. employer.
An act done by one under the command and direc-
» Eobb V. Connolly, 111 U. S. 624, 637 (1884).
tion of the owner of a vessel, with his approbation and
s See generally Re Leary, 10 Bened. 208, 205-23 (1879);
18 Blatch. 430; 8 Law. 370; 2 Flip. 183; 16r. E. 93; 7 Op. for his benefit, is as much his own act in contempla-
tion of law as if done by himself. To this extent at
Att.-Gen. 6; 8 id. 308, 396, 521; 63 Ind. 344; 50 Iowa, 106; least the maxim applies. And it is not material
34 Ohio St. 71-79; 4 Tex. Ap. 663; 60 "Wis. 594; 18 Alb. whether the act is done in his absence from, or his
Law J. 146-51 ; 2 West Coast Rep. 599.
presence in, the scene.' See Asekt; Contractor.
Rules proposed by Inter-State Conference, 36 Alb.
Law J. 220 (Sept. 10, 1887). The new extradition bill, • Aberdare v. Hammett, L. E., 10 Q. B. 165-66 (1875).
3T id. 88-93 (1888), A. T. Spear. »1 Wall. 93; Sid. 734.
> 96 U. S. 267.
■"Whalen v. Sheridan, 10 P.E. 663 (1880); MilUer v.
Ehlers, 91 U. S. 251 (1875). ' See Osgood v. Bringolf , 32 Iowa, 270 (1871).
» Moses V. Sun Mut. Ins. Co., 1 Duer, 170 (1853); The 'United States v. Gooding, 12 Wheat. 472 (1827),
Iltania, 19 P. E. 105 (1883). Story, J. See also 1 Bl. Com. 474; 91 U. S. 312; 48 Ark.
 FACT 443 FACTOR

FACT. Anything done, or said ; an act In fact. In reality; in a matter of fact.

or action ; an actual occurrence ; a circum- Opposed, in Uw: in a matter of law; em-
stance; -whatever comes to pass; an event. powered hylaw; imputed in law: as, an at-
See Factum. torney infact, and an attorney at-law ; error
Subjects of jurisprudence are facts and laws: tacts or fraud in fact and in law. See Attorney;
are the source and cause of laws. From facts pro- Error, 2 (2) ; Fraud ; Pais.
ceed rights and wrongs. By fact is meant anything
the subject of testimony. Perception is a fact. If " Fact " is contrasted with " law." Law is a prin-
ciple, fact is an event; law is conceived, fact is actual;
any emotion is felt, as joy, grief, anger, the feeling is law is a rule of duty, fact is that which accords with
a fact. If the operation of the mind is productive of or contravenes the rule. ^
an effect, as intention, knowledge, sidll, the possession Questions, issues, conclusions, and errors are of law
of this effect is a fact. If any proposition be true, or of fact, or of mixed law and fact.
whatever is affirmed or denied in it is a fact.'
Facta, not evidence, are to be pleaded; and are
"Fact" and "truth" are often used in common
proven by moral evidence. Questions of fact are said
parlance as synonymous; as employed in pleadings
they are widely different. A fact in pleading is a cir- to be solved by the jiu-y, questions of law by the court.
See Demurreii; Ignorance; Inquiry; Jury; Knowl-
cumstance, act, event or incident; a truth is a legal
EDOE, 1 ; Law; Mistake ; Notice, 1 ; Presumption; Hes,
principle which declares or governs the facts and their Gestse; Ultimate.
operative effect."
An act, deed, circumstance, or event is none the FACTOR.^ An agent who is commis-
less a fact because reached as a conclusion of law.^ sioned by a merchant or other person to sell
See Circumstances, 1. goods for him and receive the proceeds.?
After the fact; before the fact. See A commercial agent, transacting the mer-
Accessary ; Factum, Ex post, etc. cantile affairs of other men, in consideration
Collateral fact. A fact not directly con- of a fixed salary or certain commission, and,
nected with the matter under consideration. principally, though not exclusively, in the
Material fact. Such a fact as influences buying and selling of goods.*
action in favor of or against a thing about to An agent employed to sell goods or mer-
be done; such a fact as is essential to the chandise, consigned or delivered to him, by
right of action or defense. Immaterial or for his principal, for a compensation called
fact. A fact not important to a determina- his " factorage " or commission.*
tion ;not essential to a conclusion ; not neces- Often called a "commission merchant" or "conr
sary to be alleged, nor to be proved if alleged. signee;" and the goods received by him a "consign-
In fire insurance any fact is material, the knowl- ment." When, for an additional compensation in ease
edge or ignorance of which would naturally influence of sale, he undertakes to guarantee the payment of the
an insurer in making the contract, in estimating the debt due by the buyer, he is said to receive a del cred-
ere commission; that is, a commission of trust or
degree and character of the risk, or in fixing the rate
of insurance.* See Conceal, 5. A factor or commission merchant may buy and sell
credit.'
Verbal fact. (1) A fact which, if stricken in his own name, and he has the goods In his posses-
out, would have the effect produced by strik- sion. A " broker " cannot ordinarily buy and sell in
ing out the controlling member {verb) of a his own name and has no possession of the goods.'
sentence, or the controlling sentence from Domestic factor. A factor who resides
its context. in the same country with his principal. A
(2) A declaration accompanying a thing foreign factor resides in a different country.
done, explanatory of it, unfolding its nature A factor may sell sufficient of the merchandise to
reimburse himself for advances, or to meet liabilities
and quality ; as, what is said about sickness incurred, unless he has agreed not to do so, or the
or affection, where either is the subject of consignor is ready to reimburse him. He must obey
inquiry. 5 the orders of his principal.'
330; 22Ind. 471; 15 La. An. 456; 1 Pick. 476; 10 Mass. ' [Abbott's Law Diet.
155; 3 Gray, 361; 11 Meto. 71; 18 Me. 137; 68 N. H. 53; ^ L. facere^ q. v.
9 Pa. 13; 98 id. 9; Story, Ag. § 440; Whart. Max. 165. " Cotton V. Hiller, 62iMiss. 13 (1876), Sunrall, C. J.
' Bam on Facts, Ch. I. * Lawrence v. Stonington Bank, 6 Conn. 537 (1827),
= Drake u. Cockrof t, 4 E. D. Smith, 37(1855), Wood- Hosmer, C. J.
ruff, J. See Lawrence v. Wright, S Duer, 674-75 (1853). » Story, Agency, §§ 33, 357; Duquid v. Edwards, 50
s Levins v. Eovegno, 71 Cal. 277 (1886). Barb. 295 08C7); Whart. Ag. § 784; JBxp. White, L. E.,
» Boggs V. American Ins. Co., 30 Mo. 68 (1860); Clark 6 C. Ap. 403(1871); 1 Pars. Contr. 78; 1 Bl. Com, 437.
V. Union Mut. Fire Ins. Co., 40 N. H. 338 (1860). « Slack V. Tucker, 23 Wall. 330 (1874), Bradley, J.
= See Beaver v. Taylor, 1 Wall. 642 (1863); Travelers' See also Perkins v. State, 50 Ala. 166 (1873).
Ins. Co. V. Mosley, 8 id. 404-5 (1869), Swayne, J. ' Brown v. M'Gran, 14 Pet. 494 (1840).
 FACTORY 444 FACTUM

To the extent of advances and charges, he has a , power in place of the lawful government ; * of increase
lien, a special property, in the merchandise; and he
may pledge articles to the amount of that lien. He of stock."
Ex facto jus oritur. Out of the fact the
may protect his possession by a suit against a' tres- law arises : the law attaches to facts.
passer. He cannot sell to his own creditor in payment
of his debt; nor can he delegate his authority without Ex post facto. From an after fact — a
assent of the principal. Before he has effected a sale, subsequent matter ; after the fact or act.
the principal may reclaim possession by paying ad- "No State shall . . pass any . . ex
vances, interest thereon, and expenses.* The princi-
pal may sue and be sued on a contract made by the post
Thatfacto
is, aLaw." 3
law concerning, and after, a fact,
factor in his own name."
If guilty of gross negligence in conducting the busi- or thing done, or action committed.*
ness, he forfeits all claim to compensation for his Eelates to penal and criminal proceedings, which
servites.' See further Agent. impose punishments or forfeitures, not to civil pro-
ceedings which affect private rights retrospectively. ^
raptor's Act. Statute of 6 Geo. IV Embraces only such laws as impose or affect penal-
(1826), c. 94. Empowered a factor to pledge ties or forfeitures. A retrospective act is not there-
the goods, and protected persons who be- fore necessarily such a law."* See Eetrospective.
lieved him to be the real owner. Includes every law : (1) That makes an ac-
Statute of 6 and 6 Tict. (184S) further enabled him, tion' done before the passing of the law, and
as if the true owner, to enter into any agreement re- which was innocent when done, criminal,
specting the goods by way of "pledge, lien or secu-
and punishes such action. (2) That aggra-
rity," excepting as to antecedent debts; and this,
notwithstanding the lender is aware that the bor- vates a crime, 6r makes it greater than it was
rower is a factor only. Similar legislation exists in when committed. (3) That changes the pun-
the States.
ishment, and inflicts a greater punishment
Factorizing process. Trustee process; than the law annexed to the crime when
garnishment,* q. v, committed. (4) That alters the rule of evi-
FACTORY. A contraction of " manu- dence, and receives less or different testi-
factory,— a building, or collection of build- mony than the law required at the time of
ings, appropriated to the manufacture of the commission of the offense, to convict the

goods."
Includes the building, the machineiy necessary to offender.'
A law which imposes a punishment for an
produce the particular goods, and the engine or other
power requisite to propel such machinery.* See Con-
act not punishable at the time it was com-
tained. mit ed ;or imposes additional punishment to
PACTUM. L. A thing done ; a deed ; a that then prescribed ; or changes the rules of
fact. Compare Fait. evidence by which less or different testimony
De facto. In point of fact : actual. Op- is sufficient to convict than was then re-
posed, dejure: by right, rightful.
Said of a blockade (q. v.) actually maintained; " of The term necessarily implies a fact or act done,
actual duress; ' of a wife or husband whose marriage " after " quwhich ired. ^ the law in question is passed. Whether
may be annulled; ^ of a person in ofSce under ap- it is ex post facto or not relates, in criminal cases, to
parent right or under color of right — as by an appoint- which alone the phrase applies, to the time at which,
ment or election not strictly legal; » and of a vacancy the offense charged was committed. If the law com-
(g. V.) in an oflce; of a government (g. v.) actually in plained of was passed after the commission of the of-
fense, itis as to that ex post facto ,though whether of
> Warner v. Martin, H How. 223 (1850), oas6s; United the class forbidden by the Constitution may depend
States V. Villalonga, 23 Wall. 42(1874); Mechanics', &c. on other matters. But so far as this depends on the
Ins. Co. V. Kiger, 103 IT. S. 355 (1880); Steiger v. Third time of its enactment, it has reference solely to the
Nat. Bank, 2 MeCrary, 503 (1881); Goodenow v. Tyler,
1 Am. L. C. 788, 797; Laussatt v. Lippinoott, ib. 806, 812; ' 93 U. S. 133; 96 id. 186; 97 id. 616; 43 Ala. 213; 42
73 111. 103; 5 S. & E. 540; 70 E. C. L. 418; 2 Kent, 6SS. Miss. 703;S.47668.
Pa. 170. '
" 96 U.
» Higgins V. MoCSea, 116 TJ. S. 680 (1886), cases.
= Fordyce v. Pepper, 16 F. E. 516, 520-21 (1883), cases. ' Constitution, Art. I, sec. 10. See 8 Bancroft, Const.
* See Drake, Attach. § 451. 213.
» Schott V. Harvey, 105 Pa. 227 (1884). See 76 Va. * Calder v. Bull, 3 Call. 390-91 (1798), Chase, J.
|>1012; 8Md. 495. ' Watson V. Mercer, 8 Pet. 110 (1834), cases. Story, J.
» 1 Kent, 44. •Locke V. New Orleans, 4 WaU. 172 (1866).
' 15 Gray, 471. ' Calder v. Bull, supra; State v. Hoyt, 47 Conn. 532
' 1 Bl. Com. 435; 4 Kent, 36. (1880).
= 2 Kent, 295; 1 Bl. Com. 371; 27 Minn, 293; 3 Mont. » Cummings v. Missouri, 4 Wall. 326 (1866), Field, J.;
430; 55 Pa. 468. 9 Wall. 38.
 FACULTY 445 FAIE

date at which the pfEense was committed to which indispensable to the finding of the issue for the plaint-
the new law was sought to be applied. . . Any law
passed after the commission of an offense which " in Failure of issue. Want or non-existence
relation to that offense or its consequences, alters the of descendants; more particularly, lack of
situation of a party to his disadvantage," is an ex post iff.'
issue who may take an estate limited over
facto law, and forbidden.^
' Does not involve a change of place of trial.' by an executory devise.
Illustration: a State may not disqualify from fur- This may be definite or indefinite. See further
ther emplo.yment as such, teachers and clergymen Die, Without children.
who took part in the late rebellion.' Failure of justice. Defeat of right and
A statute which simply enlarges the class of per- justice from want of legal remedy.
sons who may be competent to testify is not ex post Failure of record. Neglect to produce
facto as to offenses previously committed. Such alter- a record relied upon in a plea.
ation in the law relates to the mode of procedure only,
in which no one can be said to have a vested right, and Failure of title. Defector want of title.
which the State, upon grounds of public policy, may When discovered before the money has been paid,
regulate at pleasure.* the purchaser may deduct an amount equal to the
ractuin probandum. The fact to be value of the land of which he is deprived.
Failure of trust. Defeat of a proposed
proved.* trust from want of constituting facts or ele-
Ipso facto. By the fact itself; by the
mere fact; from the effect of the fact or act. ments or of law to efEectuate the object.
The mere fact of a collision between trains is evi- 3. Default; omission; neglect; non-per-
dence ipso facto of negligence.' Attaining twenty- formance, q.V. ; as, failure to perform a con-
one years of age ipso facto emancipates from the dis- tract, q..V.
abilities of infancy.
3. Inability to pay debts, from insolvency ;
Ifoii est factum. It is not his deed. The
name of the issue joined in an action on a suspension of payment: as, failure in busi-
ness, afailing debtor.
specialty, by a defendant who denies that he
Palling oiroumstanoes. In a statute, may im-
executed the instrument.^ ply that the insolvent is about failing and closing his
PACTJIiTY. A special privilege or affairs, knowing his inability to continue in business
license granted to a person permitting him to and
ENOY.
meet his payments." See Bakkruptct; Ihsolv-
do something which otherwise the law would
not allow. FAIR. 1, adj. Equal; just; proper; rea-
FAILURE. 1. The state or condition of sonable equitable.
; See Equity.
Fair abridgment. A real substantial
being wanting; a falling short; deficiency
condensation of copyrighted materials, as the
or lack; defect, want, absence; default; de- See Abrid&e.
feat. result of labor and judgment.
average crop. Takes into account the nat-
Failure of consideration. Want or ab- lurePair
of the season and unforeseen events beyond the
sence of a legal consideration. control of a prudent, faithful overseer.'
This may be either partial or total.' See Consideb- Fair criticism. See Eeview, 3.
ATION.
Fair knowledge or skill. A reasonable
Failure of evidence. Absence of legal
evidence. degree of knowledge or measure of skill.4
ab- Fair preponderance. Of evidence — a
Total failure of evidence. Not only the utter
sence of all evidence, but also failure to offer proof, preponderance perceptible upon fair consid-
either positive or inferential, to establish one or more
eration. *
of the many facts, the establishment of all of which is Fair sale. A sale conducted with fair-
ness as respects the rights of the parties
1 Kring V. Missouri, 107 U. S. 225, 227, 835, 238, 250
(1888), Miller, J. Approved, Hopt v. Utah, infra. affected.''
1 Gut V. Minnesota, 9 Wall. 37 C1869).
' Locke V. New Orleans, ante. » Cole V. Hebb, 7 Gill & J. 28 (Md., 1835).
* Hopt V. Utah, 110 U. S. 689-90 (1884), Harlan, J. See aUtley v. Smith, 84 Conn. 310 (1855); Bloodgood V.
Pacific Coast Law J., May 26, 1883; 23 Am. Law Eeg. Beecher, 35 id. 482 (1868).
680-95 (1886), cases. ■ Wright V. Morris, 15 Ark. 450 (1855).
• 1 Greenl. Ev. § 13. * Jones V. Angell, 95 Ind. 383 (1663).
« 91 U. S. 492.
« [State V. Grear, 39 Minn. 235 (1882); Bryan v. Chi-
'See^ Bl. Com. 305; 1 Litt. 158; 6 Hand. 86; Gould, cago, &c. E. Co., 63 Iowa, 466 (1884); City Bank's Ap-
PI. 300-2. Pa. 288.
274 (1886);2486Minn.
' See Torinus v. Buokham, 29 Miim. 131 • [LalorConn.
peal,'54 V. M'Carthy, 419 (1878).
 FAIT 446 FAITH

Fairly. Equitably; reasonably. . value, before maturity, takes it freed from all infirmi-
ties in its origin, unless it is absolutely void for want
In " fairly merchantable," conveys the idea of me-
diocrity inquality, or something just above that.^ of power in the maker to issue it, or its circulation is
by law prohibited by reason of the illegality of the
May be deemed synonymous with " equitably." ^
But is not synonymous with "truly:" language consideration. His transferee, with notice of the in-
may be truly yet unfairly reported.' See Faithfully. firmities, may equally recover.^
A party who, before its maturity and for a valuable
Fairness. In speaking of a sale, "fairness and
consideration, purchases mercantile paper from the
good faith " refers to the fair dealing which usually
characterizes business transactions.* apparent owner thereof, ' acquires a right thereto
which can only be defeated by proof of bad faith or
2, n'. In English law, a species of market of actual notice of such facts as impeach the validity
held by grant from the crown.5 of the transaction.*
In the United States, "fairs" are governed by the A holder in good faith is a purchaser for value with-
law as to partnerships and sales. See Market.
out notice, or his successor. ^
FAIT. F. A fact. Compare Factum. . The bad faith in the taker of negotiable paper-'
Before or at full' age an infant may avoid a matter which will defeat a recovery by him must be some-
in fait; and a matter of record, during majority.^ thing more than a failure to inquire into the consider-
"Wife de fait; a wife de facto. ation upon which it was made or accepted, because of
FAITH. Belief; confidence; reliance; rumors or general reputation as to the bad character of
credence; trust, q. v. Fair intent of pur- the maker or drawer.* See further Negotl^te, 2;
pose ;honesty, openness, uprightness ; sin- Notice, 1; Lost,' 2.
One who buys at a voluntary sale from his debtor,
cerity; fidelity to a representation, promise, crediting the consideration on a pre-existing debt,, is
or duty. not a bona fide purchaser for value: he advances
Good faith. Honest, lawful intent; thfe nothing, and, if the title fails, loses nothing.^
condition of acting without knowledge of The highest good faith' is exacted of a person deal-
ing with a trustee respecting the trust property. See
fraud and without intent to assist in a fraud- Trust, 1; Fiduciary.
ulent or otherwise unlawful scheme. Bad
Full faith and credit. ' ' Full Faith and
faith. Guilty knowledge or willful igno- Credit shall be given in each State to the
rance.
public Acts, Eecords, and judicial Proceed-
The corresponding Latin expressions are bona fides,
and mala fides. See Fides. ings of every other State. And the Congress
A creditor,' holder, possessor,^ pi^rchaser,^ or trans- may by general Laws prescribe the Manner
feree in good faith is one who has loaned monpy or in which such Acts, Records and Pro-
purchasecTprbperty faiiiy,.in the usual bourse ofbusi; ceedings shall be proved, and the Effect
ness, and without being cognizant of, or implicated in,
Khy intent which the borrower or seller may have had For the " history of this prdvision, see Extradition,
to evade the claims of his creditors or to defraud some thereof. *
person interested in the matter.^*" page 441.
A record must be authenticated as prescribed by
The title of a person who takes negotiable paper
before it is due, for a valuable consideration, can only act of May 35, 1790.' The records and judicial pro-
ceedings of the courts of any State (authenticated as
be defeated by showing bad faith in him, which im-
plies guilty knbwledge or willful ignorance of the herein prescribed) " shall have such faith and credit
facts impairing the title of the party from whom he given to them, in every (jourt within the United States,
as they have by law or usage in the courts of the
received it. The burden of proof lies on the assailant
State frora which they are taken." **
of the taker's title.," The judgments of the courts of the United States
A purchaser in good faith of negotiable paper for
have invariably been recognized as upon the same

1 Warner v. Arctic Ice Co., 74 Me. 479 (1883).

2 Satcher v. Satcher, 41 Ala. 40 (1867). 1 Cromwell v. County of Sac, 96 U. S., 61, 59 (1877),
s Lawrence v. Fmch, 17 N. J. B. 239 (1865). cases. Field, J.; Bowditch v. New England Life Ins.
< Morgan v. Hazlehurst Lodge, 53 Miss. 683 (1876). Co., 141 Mass. 396 (1886). ,
= See 1 Bl. Com. 274. = Swift V, Smith, 103 U. S. 444 (1880), Strong, J.
« 1 Pars. Contr. 333. 3 McClure li. Township of Oxford, 94 U. S. 432 (1876),
' See 66 Ga. 722;' 30 Minn. 87S. Waite, C. J.
8 See 31 Md. 454; 8 Wheat. 79; 12 Tex. 322; 24 id. 379. * Goetz V. Bank of Kansas City, 119 U. S. 660 (1887),
"See 71 Ala. 231; 44 Conn. 459; 65 Barb. 231; 7Johns. Field, j; See, in general, 22 Cent. Law J. 437-42 (1886),
Ch. 65; 2 Utah, 52. cases.
i« [1 Abbott's Law Diet. 636; 111 U. S. 80. = Overstreet v. Manning, 67 Tex. 661 (1887); 61 id. 648.
" Hotchkiss V. Tradesmen's, &c. Nat, Banks, 31 Wall. " Constitution, Art, IV, sec. 1.
359 (1874), cases; Dresser v. Missouri, &c. Co., 93 U. S. ' Caperton v. Ballard, 14 Wall. 241 (1871).
94^-95 (1876), cases; Collins v. Gilbert, 94 id. 754 (1876)^ 8 Act 26 May, 1790, o. 11; Act 27 March, 1804, o. 56:
cases. R. S. § 905.
 447 FALSE
FAITH

footing, so far as coucerns the oblig:ation created by force of the word "faithfully," and should not be
them, with domestic judgments of the States.' omitted from a statutory form of an oath of offiee.i
A judgment duly rendered in one State is con- A bond that one will "well, truly, firmly, and im-
clusive as to the merits of the case in evei*y other partial y perform
" the duties of an office, is not in-
State, a valid as varying from the statutory form "for the
But want of jurisdiction over the party, or matter, faithful performance of his duties." ^
may be shown dehors, emd even in contradiction of
the record.^ FALCIDIAN LAW, or POBTIOTJ".
The Federal courts give the judgment of a State_ In the reign of Augustus, on motion of Pub-
court the force and effect to which it is entitled in the ■
lius Falcidius, it was enacted (40 B. C.) that
Courts of the State. a testator could not bequeath away from his
No greater effect can be given to any judgment of heir more than three-fourths of his estate. ^
a court of one State in another State than is given to In principle, adopted in Louisiana, and perhaps
It in the State where rendered. Any other rule would elsewhere.
contravene the policy of the provision of the Consti- FALL. A life estate is sometimes said to
tution and laws of the tTnited States on that subject.'
The evils which would result from a general system "fall into," that is, to merge with, the fee.
FALSA. See Falsus.
of re-examination of the judicial proceedings of other
States are apparent. The f ramers of the Constitution FAlLSE. Somewhat more than errone-
intended to attribute to the " public acts, records, and ous, untrue, or illegal: distinctively charac-
judicial proceedings " of each of the States positive terizes awrongful act known to involve an
and absolute verity, so that they cannot be contra-
dicted, or the truth of them denied, any more than in error or untruth.''
the State where they originated.* As, false or a false '■— action, answer, claim,
The duty to follow the courts of a State, upon ques- date, imprisonment, oath, swearing, testi-
tions arising upon the construction of its own statutes, mony or witness, personation, pretenses, rep-
rests upon comity. . . The provision relates only to resentation, return, token, signature, weights
the conclusiveness of judgments as between parties
and measures, writing, qq. v. Compare
and privies.' See Comity; Law, Foreign.
The Federal courts, exercising their original juris- Sham.
diction, take notice, without proof, of the laws of the Falsehood. Any untrue assertion or
several States; but, as no State court is charged with
a knowledge of the laws of another State, in the proposition ; a -jviHf ul act or declaration con-
Supreme Court, when acting under its appellate juris- trary to the truth.5
diction, whatever was matter of fact in the court Does not necessarily imply a lie or willful untruth.^-
See CoMMENDATio, Simplex; Cohceal; Crimen,
whose judgment is under review, continues matter
Falsi; Deceit; Estoppel; Falsus, In uno; Fbaod;
of fact.'
Oath; Perjcky.
FaitMally. When a public officer gives
a bond conditioned faithfully to discharge Falsely. Applied to forging an instru-
ment, implies that the writing is false, not
his official duties, " faithfully " implies that
he has assumed the measure of responsibility genuine, fictitious, not true,-^ without re-
laid on him by law had no bond been given. gard to the truth or falsehood of the state-
ment it contains,— the counterfeit of some-
Everything is unfaithfulness which the law
does not excuse.^ thing which is or has been genuine, which
" Fairly and impartially," in the expression " faith-
purports to be a genuine instrument when
it is not such.6 See further Counterfeit;
fully, fairly, and impartially," add something to the FORGEEY.

Falsify. 1. To represent a fact falsely.

1 Embry v. Palmer, 107 V. S. 10-11 (1882), cases.
a M'Elmoyle v. Cohen, 13 Pet. 336 (1839). 3. To tamper with a document by inter-
lineation, ololiteration, or otherwise. See
s Thompson v. Whitman, 18 Wall. 463-64 (1873), cases ;
Altbbation, 3 ; Eecord.
Pennoyer v. Nell, 95 V. S. 729 (1877); 30 Gratt. 266.
* Board of Public Works v. Columbia College, 17
3. To prove a thing to be false, particulai-ly
WaU 529 (1873); Robertson v. Piokrell, 111 U. S. 611 an item of debit in an account.
119
(1883); Chicago, &c. E. Co. v. Wiggins Ferry Co.,
id. 622 (1887).
s 3 Story, Const., 3 ed., § 1310. I Perry v. Thompson, 16 N. J. L. 73 (1837).
'Wiggins Ferry Co. v. Chicago, &c. E. Co., 3 ' Mayor of Hoboken v. Evans, 31 N. J. L. 343 (1865).
384. > See Hadley, Eom. Law, HSi.
McCrary, 609, 613 (1883), oases; 11 F. E. 381,
' Chicago, &c. E. Co. v. Wiggins Ferry Co., 119 U. S. 4 See People v. Gates, 13 Wend. 320-21 (1835). Cr. Ev.
623 (1887). ' Putnam v. Osgood, 51 N. H. 307 (1871) ; Eoso.
163.
8 State 1). Chadwiok, 10 Oreg. 468 (1881); 16 Op. Att.-
GJen. 318. ' [State V. Young, 46 N. H. 270 (1665).
 FALSUS FAMILY
448

Falsification. Applied to some item Defame. To maliciously injure a name;

among debts which is wholly false or in some to slander. Whence defamation, q. v.
part erroneous. 1 See further Surcharge. Good fame. Favorable reputation. Ill-
FALSUS; FALSA. L. Deceptive; er- fame. Evil fame or name ; ill-repute.
roneous; false. "Hl-fame" distinctively describes n person who
Crimen falsi. The offense of deceiving visits gaming houses, bawdy-houses, and other for-
bidden resorts, as well as the resorts themselves.
or falsifying. See further Crimen, Falsi.
While in popular parlance the term designates bawdy-
Falsa demonstratio non nocet. An
houses, with no reference to their " fame," some courts
erroneous designation does not impair. See allow proof of the fact to be aided by proof of the
further Demonstratio. fame.' See further Housb, Of ill-fame.
Falsa grammatica non vitiatchartam. Infamous. Not of good repute; incom-
Bad grammar does not invalidate an instru- petent to testify by reason of conviction of
ment. See further Gbammae. crime. Whence infamy, q. v.
Falsus in uno, falsus in omnibus. FAMILY.^ Originally, servants; in its
modern comprehensive meaning, a collective
False in one (particular), false in all. Delib-
erate falsehood in one matter will be imputed body of persons living together in one house,
to related matters. or within the curtilage.'
If the circumstances respecting which testimony is In popular acceptance includes parents,
discordant be immaterial, and of such a nature that children, servants — all whose domieil or
mistakes may easily exist, and be accounted for in a home is ordinarily in the same house and
manner consistent with the utmost good faith and
probability, there is much reason for indulging the under the same management and head.<
In its limited sense signifies father, mother,
'belief that the discrepancies arise from the infirmity
■of the human mind, rather than from deliberate error. and children; in its ordinary acceptation,
But where the party speaks to a fact in respect to all the relatives who descend from a common
which he cannot be presumed liable to mistake, as in
relation to the country of his birth, or his being in a root ; in its most extensive scope, all the in-
vessel on a particular voyage, or living in a particular dividuals who live together under the au-
place, if the fact turn out otherwise, it is extremely thority of another, including even servants.*
difficult to exempt him from the charge of deliberate The most comprehensive definition is, a
falsehood; and courts of justice, under such circum- number of persons who live in one house and
stances, are bound upon principles of law, morality,
and justice, to apply the maxim falsus in uno, faUus under one management or head."
No specific number of persons is required; nor that
in omnibus.^
The maxim is applied to discredit the testimony of they eat where they live, nor that they be employed
witnesses; it is the foundation of the old rule which in or about the house.^
excluded the testimony of infamous persons. Holds Children, wife and children, blood relatives, or the
good where the pasty calling the witness is cognizant members of the domestic circle; according to the con-
of the falsehood, or where the falsehood affects the
nection.'
Includes children over age, if they have no home
.credibility of the witness's testimony. Never applied
to misstatements which are wholly inadvertent, or at- elsewhere."
tributable to the ordinary fluctuations of memory. Family arrangement. An arrangement
Proper where the special falsity is of a nature to im- between members of a family as to the dis-
ply falsity as to the whole case; and where contra-
dictions are so numerous as to show imbecility of position of their property. -
> See 1 Bish. Or. L. § 1088; 2 Greenl. Ev. § 44; 88
memory. 3 Conn. 467; 132 Mass. 2; 74 Me. 153; 29 Minn. 193, 195.
He who would embezzle a ship's furniture would
not hesitate to embezzle the cargo.* * L. familia, household: domestics: famulus, a serv-
ant.
FAME. Report or opinion generally dif- s Wilson V. Cochran, 31 Tex. 680 (1869); Eooo v. Green,
50 id. 483 (1878).
fused; repute, reputation; public estima-
tion; name. < Cheshire v. Burlington, 81 Conn. 339 (1803); 51 Mich.
494.
' Galligar v. Payne, 31 La. An. 1058 (1883), Bermu-
> [Bailey v. \Vestcott, 6 Phila. 537 (1868), Sharswood, dez, C. J.: 15Eeti. 464.
J.; 2 Barb. .592; 2Edw. Ch. 23. • Poor V. Hudson Ins. Co., 3 F. E. 488 (1880).
2 The Santissima Trinidad, 7 Wheat. 339 (1833), ' Spencer v. Spencer, 11 Paige, 160 (1844), Walvrorth,
Story, J. Ch. See also Muir u Howell, 87 N. J. L. 39 (1883),
»See 1 Whart. Ev. § 412; 30 F. E. 577; 18 Fla. 463; 97 eases; Race v. Oldridge, 90 111. 253 (1878); 3 Woods, 494;
Mass. 406; 63 Miss. 28; 91 Mo. 439; 14 Neb. 101; 44 N. Y. 53 Iowa, 707; 56 id. 389; 125 Mass. 377; 138 id. 334; 137
172; 15 Wend. 603; 81 Va. 154; 3 Wis. 645. id. 56.
* The Boston, 1 Sumn. 356 (1833). e StUson u Gibbs, 53 Mich. 880 0884): Exemp. Law.
 FARE 449 FAST

Family Bible. Containing entries of family inci- the use of money became more frequent. So that a
dents,—births, marriages, and deaths, made by a farmer, flrmarius, was one who held his lands upon
parent, since deceased, will be received in evidence. ^ payment of rent or feorme; though at present, by a
See Pedigree. gradual departure from the original sense, the word
Family ootincil, or meeting. In Loui- " farm " signifies the very estate or lands so held upon
siana, a meeting of the I'elatives or friends of farm or rent.'
a minor or other person incompetent to act That which is held by a person who stands
for himself, may be held, by j\idicial appoint- in the relation of a tenant to a landlord.^
ment, to advise upon the interests of such An indefinite quantity of land, some of
which is cultivated.'
person. 2 ' ' Farm " and ' ' homestead farm " are words
^ Fam.ily physician. The physician who
usually attends and is consulted by the mem- of large import. In England, farm com-
bers of a family as their physician.' monly implies an estate leased. The word is
It is not necessary that he should invariably attend collective, consisting of divers things gath-
and be consulted by each and all the members of the ered into one, as a messuage, land, meadow,
family.*
pasture, wood, common, etc. In the United
Family use. Such use as is appropriate States, it is a parcel of land used, occupied,
to the individual needs of the members of a
household, and to the needs of the household managed, and controlled by one proprietor.*
See Crop.
in its collective capacity.'' "To farm," in a lease bf mineral lands, means to
To supply water for family use in a city includes
bring the minerals up to light tor purposes of com-
supplying city buildings, such as a 'jail, and hospitals, merce, and make them profitable to lessor and lessee,"
poorhouses, schools, and other institutions * See Agriodltuke; Exemption; Implement; Plan-
Groceries kept by a merchant as part of liis stock tation; Tool.
are not "provisions found on hand for family use,"
within the meaning of an exemption law.*
Fee-farm. To let lands to farm in fee-
Head of a family. The person who con- simple, instead of for life or years ; also, the
land itself , so held on perpetual rent.
trols, supervises or manages the affairs about
a house. Fee-farm rent. A rentcharge issuing out of an es-
tate in fee." Compare, Feud, To feu.
Where there is a husband or father, he is ordinarily
the head; but there may be a head where there is no
To farm let. A technical expression in
marriage relation.* Compare Householder; Pater.
a lease creating a term for years.
FAHE. See Bridge; Carrier; Ferry; Usual, but not essenti al.'
Passenger; Railroad; Toli.-, 3. To farm out. To rent for a term of years ;
also, to give over something to another for a
FAB.M.'^ 1. Provision; rent; tenure by share of the income or profit : as, to farm out
rent. 3. Land rented ; land devoted to pur-
revenues, or taxes.
poses of agriculture. FARO. See Game, 3.
Farm, or feorme, is an old Saxon word signifying
provision. It came to be used instead of rent or ren- FASHI ONS. See Perishable.
der, because anciently the greater part of rents were FAST. 1. As descriptive of days, see
reserved in provisions — com [grain], poultry, etc.,tlll Holiday.
' See 1 Whart. Ev. § 219; 1 Greenl. Ev. § 104; 53 Ga. 3. Referring to an estate — real, of the nat-
535; 80 Iowa, 301. ure of realty.^
' See La. Civ. Code, Art. 305-11 ; 6 Mart. 455.
3. Moving more than a specified number
s [Price v. Phoenix Ins. Co., 17 Minn. 519 (1S71); Reid
V. Piedmcnt, ic. Ins. Co., 58 Mo. 434 (1874).
of miles, as eight, per hour."
« Spring Valley Water Works v. San Francisco, 52 1 2 Bl. Com. 318, 57.
C»l. 120 (1877).
» [Lane v. Stanhope, 6 T. R. 353 (1795), Kenyon, C. J. ;
» State V. Conner, 73 Mo. 575 (1881). 4 Best & S., Q. B. 931.
"See 17 Ala. 480; 41 Ga. 163; 00 HI. 250; 110 id. 533; 11
s Commonwealth v. Carmatt, 2 Binn. *23S (1810),
Iowa, 266; 48 id. 186: 5J id. 431: 53 id. 706; 20 Mo. 75; 45 Tilghman, C. J.
id. 483; 69 id. 415; 51 N. H. 253; 9 Wend. 476; 5S. C. > Aldrich V. Gaskill, 10 Cush. 158 (1852), Shaw, q. J.;
493; 32 Gratt. 18.
Black V. Hill, 32 Ohio St. 318 (1877): Shep. Touch. 93.
'A. S. feorm, food, property, use: L. L. firma, a
" [Price V. Nicholas, 4 Hughes, 619 (1878).
fe:st, tribute: firmus, durable. From the "fixed" «2 Bl. Com. 43; De Peyster v. Michael, 6 N. Y. 497
rent,— Skeat. L. firmus: flrmare, to make fast Farms
were at first enclosed or fortified with walls; or, the (1852); Washb.317.R. P., 4 ed., 274.
' 2 Bl.2 Com.
leases were made more .certain by signature,— Web- 8 See 6 Johns. 185; 9 N. Y. 502.
ster.
•Indianapolis, &c. E. Co. v. Peyton, 76 111. 310 (1875).
(39)
 FAT CATTLE 450 FEDERALIST

4. In Georgia, describes a bill of excep- Malfeasance. The doing of an act wholly

tions by -which the proceedings in an injunc- wrongful and unlawful. Misfeasance. A
tion case, or other case in equity of an ex- default in not doing a lawful act in the proper
traordinary nature, may be reviewed by the manner — omitting to do it as it should be
supreme court without the delay incident to done. Non-feasance. Any omission to
ordinary cases.' perform a required duty at all, or a total
FAT CATTLE. See Pebishable ; Peo- neglect of duty.i
VISIONS. Misfeasance may amount to non-feasance; as, in
FATHER. See Ancestor; Bastard; cases of gross negligence.^ See Trustee,
SeeDAMAGfE, Feasant; Defeasance; Tort, 2, Feasor,
Child ; Consanguinity ; Descent ; Mother ; FEBRUARY. See Holiday; Year,
Name, 1 ; Parent. Compare Pater ; Partus.
FAUCES TEBRiE. L. The jaws of Leap-year.
FEDERAL.3 1. Pertaining to a league
the land : projecting headlands inclosing an
arm of the sea.^ See Sea. or compact between independent sovereign-
ties. 3. Composed of states which retain
FATTLT. 1. An improper act due to
only a portion of their original sovereignty ;
ignorance, negligence or willfulness,' qq. v. relating to the constitution, treaties, or laws,
Compare Culpa ; Delictum.
In averments in pleadings, lias substantially the or the power or government of the organiza-
same meaning as "negligence."* tion thereby foi-med.
Attributed to a carrier, may mean actual negli- Appropriate to our General Government,
gence.* the government of the United States, considr '
2. Defect; blemish. ered as a Union of States or local govern-
With all faults. In the absende of fraud
ments. The word "National" recognizes
in the vendor, a sale "with all faults" the State governments and the government
1 covers such defects as are not inconsistent
of the Union as distinct systems.*
with the identity of the goods as those de- In the second sense are the common ex-
scribed.
pressions Federal or federal — amendments.
Parol evidence is admissible to'sbicwtlie meaning in Constitution, courts, elections, decisions,
trade."
FAVOR. See CsALLENaE, 3 ; Prefer, 3 ; judges, laws and statutes, question, govern-
-Prejudice.. ment, officer. In these phrases the word of
FEALTY.' The oath or obligation of a contrast is "State:" as. State constithitions,
courts, laws, etc. See those titles.
vassal, under the feudal system, to be faith-
FEDERALIST. A publication issued
"ful to his lord and defend him against all from 1787 to 1789, and consisting of papers,
enemies. 8
The original of the oath of allegiance, g. u. See written by Hamilton, Madison, and Jay, in-
also Fedd. tended to prepare the people for accepting the
FEAR. See Affray; Defense, 1; Du- Constitution.
Of its eighty-flve numbers. Jay wrote five, Madison
' RESS ; Influence ; Quia Timet ; Robbery.
.FEASANCE.^ A doing; a performing twenty-nine, and Hamilton fifty-one. " They form a
work of enduring interest, because they are the earli-
or performance. est commentary on the new experiment of mankind
Gratuitous feasance. A voluntary serv- in establishing a republican form of government for a
ice— rendered or undertaken. country of boundless dimensions." *
The essence of bailment by mandate, q. v. In itself a complete commentary on the Constitu-
tion, The opinions expressed in it have always been
considered as of great authority. Its intrinsic merit
1 See SeweU v. Edmonston, 66 Ga. 3B3 (1881). entitles it to high rank ; and the part which two of its
2 6 Wheat. 106-; 1 Story, 259; 1 Kent, 367. authors [Madison, the chief autl^or, and Hamilton]
3 See 5 Ct. CI. 489. performed in framing the Constitution, put it very
* Rogers v. Overton, 87 Ind. 411 (1883). much in their power to explain the views with which
' School District v. Boston, &c. E. Co., 103 Mass. 556 it was framed. These essays, published while the

" Whitney v. Boardman, 118 Mass. 347-48 (1876), cases ; 1 Coite V. Lynes, 33 Conn, 114-15 (1865), Butler, J,
1 Pars, Contr. 690. 2 Story, Agency, § 318; 1 Woolw, 374-75; 3 Pet, 233,
' L. ftdelitas! fides, confidence, trust, faith, 3 L, faedus, a league, treaty, compact.
e 1 Bl. Com. 367; 2 id. 45, 53; 44 Pa. 499. < See United States v. Cruikshank, 98 U. S, 643 (1875),
• F. /aire; L. facere, to make, do. » 2 Bancroft, Formation Const, 336.
 FEE 451 FEE

Constitution was before the nation for adoption or re- Called a "fee-simple" because it signifies a pure
jection, and written in answer to objections founded inheritance, clear of any qualifliation or condition.
upon the extent of its powers, and on its diminution of It is an estate of perpetuity, and confers an unlimited
State sovereignty, are entitled to more consideration
power of alienation.'
where they franltly slv-ow that the power objected to That "heirs" or other appropriate word of per-
is given, and defead it.' petuity ina deed conveying land is essential to pass a
PEE. 1. (1) In feudal law, an allotment fee simple e.itate is not a rule admitting of no excep-
of land in consideration of military service ; tion. When, for example, a mortgage evidences an
intention to pass the entire estate as security, and ex-
land held of a superior, on condition of ren- press provisions cannot otherwise be carried into
dering him service, the ultimate property- effect, the instrument will pass such an estate, al-
remaining in him. Opposed to a?;odium. See though no formal word of perpetuity is employed.''
Allodial. A " fee limited " is an estate of inheritance clogged
The districts of land allotted by the conquering gen- or confined with a condition or qualification of some
eral to his superior officers, and by them dealt out sort. This may be one of the following estates:
again in smaller parcels, were called feoda, feuds, Base, qualified, or detepninable fee.
flefs, or fees — a conditional stipend or reward." See, Has a qualification subjoined thereto, and
at length. Feud.
terminates whenever the qualification is at
" Fee," at its origin, related to the quality of the es-
tate. It now denotes tho quantity of interest the an end.'
owner ha.s in land.^ As, a grant " to A and his heirs, tenants of the manor
(2) An estate of inheritance — the highest of Dale, " that is, as long as they continue tenants. This
estate is a fee, because it may endur^ forever, yet the
and most extensive interest a man can have duration depends upon a circumstance, and this de-
in a feud. bases the purity of the donation.*
Fee-simple. An absolute inheritance, Conditional fee. At common law, a fee
clear of any condition, limitation or restric- restrained to particular heirs, exclusive of
tion to particular heirs, but descendible to the others; as, to the heirs "of a man's body,"
heirs general, whether male or female, lineal by which only his lineal descendants were
or collateral.* admitted, in exclusion of collateral heirs ; or
"Fee," with or without the adjunct "simple," is
used in contradistinction to the fee-conditional of the
to the " heirs-male of his body," in exclusion
of collaterals, and of lineal females.
common law, and to fee-tail created by statute.
Called " conditional " from the condition, expressed
Tenant in fee-simple, or tenant in fee, is or implied in the donation, that if the donee died with-
he that has lands, tenements, or heredita- out such particular heirs, the land should revert to the
ments, to hold to him and his heirs forever — owner. Such fees were strictly agreeable to the nature
of feuds, when they first ceased to be mere estates for
generally, absolutely and simply; without
life, and had not yet become absolute estates in fee-
mentioning what heirs, but referring that to simple. . . As soon as the grantee had issue bom,
his own pleasure or to the disposition of the his estate was supposed to become absolute; at least
to enable him to alien the land, and thereby bar not
law.*
only his own issue, but also the donor of his reversion;
The term " fee '^' alone implies an inheritable estate. to subject the land to forfeiture for treason; and to
" Simple " or " absolute " adds nothing to the compre-
hensivenes ofthe original term. In modem estates, charge the land with incumbrances, so as to bind the
fee, fee-simple, and fee-simple absolute are synony- issue. If the tenant did not in fact alien the land, the
course of descent was not altered by fulfillment of
mous.'
the condition; the land, by the terms of the donation,
"An estate in fee-simple is where a man
has an estate in land or tenements to him could descend to none but the heirs "of his body,"
and, therefore, in default of them, reverted to the
and his heirs forever," donor. Hence, to subject the land to the ordinary
Limitation of the power of sale for a limited period, course of descent, the donees of these conditional fee-
as for five years, is not inconsistent with a fee-simple simples aliened as soon as issue was bora, and after-
estate.' ward repurchased the lands, which gave them a fee-
simple absolute that would descend to the heirs in
' Cohens v. Virginia, 6 Wheat. 418 (1881), Marshall,
Chief Justice. 1 4 Kent, 5; 1 Barb 675; 11 Wend. 277; 12 Johns. 177;
' 2 Bl. Com. 45, 104-^. 62 Me. 261 ; 54 id. 426; 2 Greg. 32; 42 Vt. 690; 83 N. J. E.
8 Wendell v. CrandaU, 1 N. Y. 495 (1843); Taul v. 308.
Campbell, 7 Yerg. 326 (1835). s Brown v. National Bank, 44 Ohio St. 273 (1886), cases,
igBl. Cora. 106, 105. Owen, C. J.
6 JecliB V. Taussig, 45 Mo. 169 (1869). 3 [2 Bl. Com. 109. See also 3 Law Quar. Eev. 799
« Libby v. Clark, 118 U. S. 255 (1886), Miller, J., quot- (1887); 5 Dill. 411; 94 Ul. 93: 19 Allen, 168; 1 Whart. 427;
ing 4Com. Dig., Estates, 1. 1 Barb. 575; 11 id. 28; 35 Wis. 36.
 F'EE

FEE
453

general, according to the course of tUe common law.

to spring, dies without issue, or, having left
The courts favored " this subtle finesse of construc-
tion," to shorten the duration of these conditional es- issue, that issue becomes extinct.'
tates. But the nobility, to perpetuate possessions in As the word " heirs " is necessary to create a fee,
their own families, procured the enactment of the " body," or some other word of procreation, is neces-
statute rfe donis conditionixUbus, 13 Edw. I (128fj), c. 1. sary to make a fee-tail. "
This statute revived, in some sort, the ancient feudal " Issue forever," and "posterity," have been held
restraints, by enacting that the will of the donor not less extensive than "heirs of the body." "Oflil-
should be observed, and that the tenements should go dren," or equivalent words, will not create the estate.
to the issue, if any; if none, should revert to the donor.^ Where such estates are forbidden, estates which for-
See further Donum, De donls. merly would have been deemed such are now held
A "fee-simple " is the largest estate a man can have to be estates in fee-simple, and words will begiven this
in lands, being an absolute estate in perpetuity. The construction if possible."
essential matter is that such an estate is so brought Growth of the estate tail: (1) Permission was
into existence that it viay continue forever. Where granted the heirs of the tenant to succeed him as their
an estate is granted subject to some condition in the deceased ancestor. (2) " Heirs " acquired a breadth of
instrument creating it, or to some condition implied meaning sufficient to admit collaterals. (3) Collater-
als were excluded by limiting the estate to a man and
by law to be thereafter performed^ it is called a " con-
ditional fee." A "determinable fee" embraces all the "heirs of his body." (4) This limitation was con-
fees which are determined by some act or event ex- strued to be a conditional gift — the condition being
pressed, intheir limitation, to circumscribe their con- "issue; " and, a child being born, the estate became
tinuance, orinferred by law as bounding their extent. a fee-simple, alienable, etc. (5) The statute de donis
In its broader sense, a determinable fee embraces what created the estate tail as it at present exists.
is known as a conditional fee. When it becomes an
See FEun; Recovery, Common; Shelley's 'Case;
established fact that the event which may terminate, Tail. See also Abeyance; Demesne; Descent; Es-
the estate will ne^er occur, a determinable fee en- cheat; Farm, Fee-farm; Felony; Heir.
larges into a fee-simple absolute. So, when the con- 2. Compensation for services,* paid to an
dition upon which a conditional fee rests has been attorney, an officer of the law, a physician,
performed,the estate becomes an absolute fee.^ or an expert.
Fee-tail. Upon the construction of the A sum of money paid to a person for a
statute of de donis, the judges held that the
service done by him to another.^
donee had no longer a conditional fee-simple, A recompense allowed by law to an officer
but a particular estate, which they denom- for his labor and trouble."
inated a"fee-tail;'' and the donor had the Contingent fee. Compensation payable
ultimate fee-simple, expectant on the failure upon an event more or less uncertain, as,
of issue; i. e., the reversion. s upon success in a lawsuit.
The term " fee-tail " was borrowed from the feud-
An attpmey may contract with his client for a con-
ists, among whom it signiiied any mutilated or trun- tingeijt fee, but the law will see that the transaction
cated inheritance, from which the* heirs general were is fair, and that no undue advantage has been taken of
" cut " off; being froma verb tailare, to cut.^ the necessities or the ignorance of the client.'
Estates tail general. Where lands and County commissioners may employ counsel to col-
tenements are given to one and the "heirs lect a claim due the county, for a reasonable compen-
of his body begotten." Estate tail-special. sation only.'
An agreement to pay for services of a legitimate
Where the gift is restricted to certain heirs
character in prosecuting a claim against the United
of the donee's body ; as, to the " heirs of his States, in an executive department, violates neither
body, to be begotten by his present wife." law nor public policy. 'When the amount of compensa-
An estate in general or special tail given to a man tion is not agi'eed upon, evidence of what is ordinarily
and the heirs- male of his body begotten is an " estate charged in cases of the same character is admissible. »
, in tail-male general; " given to a man and the heirs
1 2 Bl. Com. 124.
female of his body begotten, is an "estate tail-
2 2 Bl. Com. 114.
female." '
Estate tail after possibility of issue ex- = Brann i'. Elzey, 83 Ky. 442-43 (1883), Holt, J.
■1 3 Bl. Com. 28.
tinct. Where one is tenant in special tail,
5 Bloor V. Huston, 28 E. L. & E. 360 (1854). Maule, J.
and a person, from whose body the issue was « Harbor Master v. Southerland, 47 Ala. 517 (18?2): 3 4
Bac. Abr. 463; Musser v. Good, 11 S. & B. 248 (1824);
Camp V. Bates, 13 Conn. *9 (1838); Williams v. State, 3
'2 Bl. Com. 110-11; Pierson v. Lane, 70 Iowa, 62 Sneed, 162 (1854).
(1882); 3 Kent, 11. ' County of Chester v. Barber, 97 Pa. 455, 463 (1881),
2 Fletcher v. Fletcher, 88 Ind. 420 (1832), Niblack, J. cases.
3 2 Bl. Com. 112; 11 Wend. 278. s Stanton v. Embrey, 93 U. S. 557 (1876), cases; Taylor
«8B1. Com. 113-14. V. Bemiss, 110 id. 45 (1883).
 453
FEED FELONY

But a contract for lobbying services stands upon a his own death; a self-murderer.i See further
different footing.* Suicide.
Docket fee. A fee payable to counsel, as
2. A destroyer of itself; a thing that de-
part of the costs of record, usually for the feats its own purpose.
use of the successful party. In this category are: a construction of a proclama-
In Federal practice, " docket fees " in civil cases are tion," or instrument," in effect nugatory of the purpo83
a lump sum substituted for the small " fees " formerly thereof; a bill for peace which makes litigation;* a
allowed attorneys and solicitors, chargeable to and decree which, instead of removing a cloud from a title,
collectible from their clients. This sum is only tax- places another upon it; unauthorized action by a
able as costs against the losing party " in cases where
by law costs are recoverable in favor of the prevailing court. ^
FELONY.* An offense which, at com-
"^ case where there is a final trial before a
In a law
party." mon law, occasioned a total forfeiture of
jmy, the attorney's fee of twenty dollars, allowed by lands or goods, or both, and to which capital
Hev. St. §§ 803-^4, is always to be taxed; and it is for or other punishment could be added, accord-
the court to determine who is the prevailing party.^ ing to the degree of guilt. . . In general
A. solicitor for an intervener in an equity case who
prevails is not entitled to the fee ; the termination not acceptation, comprises every species of crime
which occasioned at common law the forfeit-
being such " a final hearing in equity " as is meant by
the statute. A special master in .chancery is not a ure of lands and goods.'
referee within the statute. < See Marshat,, 1 (2); Pre- The term is incapable of definition, and descriptive
vail. of no oilense. It conveys no distinct idea. Its origin
At common law, an attorney's fee was not recover- has puzzled law-writers. It comprehended two de-
abla by an action. The reason was, fees were orig- scriptions ofpunishment, the one capital, with the
inally given as a gratuity, an honorarium^ expressive forfeiture of lands and chattels; the other not capi-
of gratitude. The rule is traceable to the relation be- tal, with forfeiture of chattels only, and burning in
tween patron and client in ancient Rome: the patron the hand, to which imprisonment could be added.*
practiced for honor and influence. See Honorarium. A vague term, definable by the statutes and decis-
Fee-bill. A schedule prescribing the ions of each State for itself."
charges to be paid by litigants for the various In general, includes capital and State's
orders, notices, pleadings, writs, depositions,
prison offenses.^"
The laws of the United States contain no definition. ' '
heai'ings, transcriptions, etc., had or pro- Tested by the common law, the term has no deter-
cured in the conduct of causes. minate meaning, and can apply to no case in this
Some of these charges are payable in advance;
country except treason, where limited forfeiture of
others abide (g. t'.)the event of the suit. The schedule estate is allowed. But, technically, that is a crime of
is prepared by or in pursuance of legislative enact- a higher grade than felony, although it imports also
ment, or by order of the particular court. See Folio.
felony. If it be conceded that capital punishment im-
The term is also used to designate fhe max- ports afelony, there can be no felonies, at common
imum charges the members of a bar associa- law, except capital crimes. But that test is untech-
tion may make. nical and founded in error. The notion of " moral
See Attorney; Costs; Expert; Retainer; Salary. degradation " by confinement in a penitentiary has
PEED. Referring to cattle and hogs, may grown into a general understanding that that consti-
tutes any offense a felony. This modern idea has
mean to make fit for market by feeding.* come into general use by force of State legislation on
FEEDER. See Eailroad.
FEIGNED. See Issue, 2. the subject.'"
FELLOW. See Partner ; Servant. > 4 Bl. Com. 189; 2 id. 499; 3 C. B. 461.
FELO DE SE. L. 1. A felon (g. v.) of 2 2 Black, 678.
himself. He that deliberately puts an end to '9 Mo. 152; 36 Pa. 136.
< 18 How. 266.
his own existence, or commits any unlawful » 30 Minn. 204.
malicious act, the consequence of which is ' Fee, feud; and Ion, price or value,— 4 Bl. Com. 95.
L. L. felonem, tromfelo, fello, a traitor, rebel,— Skeat.
' [4 Bl. Com. 94-98; 3 Col. 68; 10 Mich. 182; 23 N. Y.
1 Trist V. Child, 81 Wall. 450 (1874). 257; 99 id. 216.
2 Goodyear v. Sawyer, 17 F. R. 3 (1883): R. S. §§ 823, • " Lynch f. Commonwealth, 88 Pa. 192 (1878), Agnew,
824, 983. See generally Coy v. Jerkins, 13 F. R; 111, Chief Justice.
» Bruguier v. United States, 1 Dak. 7 (1867).
113-16 (1882), cases; Re Rand, 18 id. 99 (1883).- >» See State v. Felch, 68 N. H. 3 (1876), cases; 20 Gal.
3 Williams v. Mon-ison, 33 F. R. 682 (1887), Thayer, J.
< Central Trust Co. v. Wabash, &c. R. Co., 33 F. R. 117; 4H Me. 218; 94 lU. BOl ; 55 Ala. 341 ; 4 Ohio St. 542.
684 (1887), Thayer, .T. 1 1 See R. S. § 4090.
s Brockway v. Rowley, 66 Dl. 102 (1872). 12 United States v. Coppersmith, 3 Flip. 551-68 (1880),
 FENCE
FEMALE
454

From an early day, and as a necessity, the' Feme-sole trader. A married woman who
State legislatures have passed laws defining trades on her own account as if unmarried.
and enumerating felonies as those crimes Originated in a custom of London. Recognized in
several States by statutes which enable the wives of
punishable by confinement in the peniten- mariners at sea, and wives whose husbands from any
tiary ;and such confinement has come to be cause, as, drunkenness or profligacy, desert them, or
the test in nearly every State, i refuse or neglect to provide for them.
The term as used in acts of Congress is not sus- A judicial decree is not a prerequisite. The stat-
ceptible of definition.^ utes being designed to suspend the marital rights of
As a rule, the grade of the offense is determined by the husband in consequence of the acts enumerated,
the nature of the punishment prescribed. A crime and to relieve the wife from her mai-ital obligations,
which might be punished by imprisonment in a State's the establishment of those acts is all that is required
prison was a felony, in New York, prior to the adop- of her. The statutes are remedial, and to be inter-
tion of the Penal Codel'^ ^ preted benignly. 1 Compare Earnings, Separate.
Offenses made felonies by statute are Her privileges extend no further than to contracts
called statutory felonies, in contradistinc- connected with her trade. ^
A married woman who, in matters of property, is
tion to common-law felonies — murder, man- independent of her husband, is a feme sole as to such
slaughter, rape, arson, burglary, theft, and property, and may deal with it as if she were unmar-
robbery. ried.^^ See Husband.
The common -law procedure in the prosecution and FENCE. A line of obstacle, composed of
punishment, without forfeiture, continues as the char-
any material that will present the desired ob-
acteristic bywhich felony is distinguished from trea-
son on the one hand and from misdemeanor on the struction.*
other. Partition fence. As contemplated in a
Felon. One who has committed a felony. statute, a fence on the line between two pro-
Felonious; feloniously. Generally, so indis- prietors, where there is no road, alley, or
pensable in an indictment for felony, that no .other
word will be recognized as equivalent.^ other thing which would prevent the erec-
See Assault; Crime; Damages; Homicide; Infamy; tion of such a fence. 5 See Wall.
Misprision. Fences are regulated by local laws. Boundaiy
FEMALE. See Feme ; Gsndee ; Venter ; fences are to be built on the line, and, when made as
Woman. intended by law, . the cost is "borne equally between
the parties. A partition fence is presumed to be the
FEME; or FEMME. F. A woman; a common property of both owners.^
wife. In some States, steam railway companies are re-
Feme is the older form: L. femella^ femina, a quired by statute to protect their tracks by fences.
young woman. Plural, femes, femmes. Failure to comply with its contract to fence renders
a company liable fqr injuries to children and animals,
Feme covert, or feine.^overt. A mar-
ried woman. consequent thereon.'
A statute requiring a railroad to maintain fences
By marriage, husband and wife are one person in
and cattle-guards on the sides of its road,, and, if it
law. Under his protection and ''cover," she does does not, making it liable in double the amount of
everything; and is therefore called in law -French a
feme-covert; while her condition is called ''covert-
ure," *q. V. 1 Black V. Tricker, 59 Pa. 13, 16 (1868), Thompson, C. J. ;
Feme sole, or feme-sole. A single 2 S. & E. 189; 6 W. & S. 846; 14 W. N. C. 191.
woman: one who has never been married, sMoDowall V. Wood, 2 N. & Mo. 'aiS (S. C, 1820);
Newbiggin v. Pillans, 3 Bay, 165 (S. C, 1798); ib. 113.
who has been judicially separated from her
» Taylor v. Meads, 34 L. J. Ch. 207 (1865); 21 Cent.
husband, or whose rnarriage has been dis- Law J. 47-49 (1885), cases; 24 Am. Law Reg. 353-68, 659-
solved by divorce from, or by the death of, 62 (1885), cases; 1 Story, Eq. §243; 3 Kent, 150.
the husband. < [Allen V. Tobias, 77 lU. 171 (1875), Bi-eese, J.
* Hewit V. Jewell, 59 Iowa, 33 (1882), Seevers, C. J.:
Iowa Code, § 1495; 58 Iowa, 356; Jacobs v. Moseley, 91
cases, Hammond, J. See United States v. Staats, 8 Mo. 462 (1886).
How. 44^45 (1850); United States v. Watkids, 7 Saw. » See 15 Conn. 526; BO Iowa, 237^ 59 id. 38; 2 Me. 72;
90-94 (1881), cases; People v. Lyon, 99 N. Y. 810 (1885). 11 Mass. 294; 2 Mete, Mass., 180; 28 Mo. 6B6; 12 Mo.
' United States v. Coppersmith, ante. Ap. 5,58; 3 Wend. 142; 82 Pa. 65; 2 Greenl. Ev. § 617; 2
2 People V, Lyon, 99 N. Y. 216 (1885). Washb. E. P. 79; 3 Kent, 436.
ssee Eeedti. State, 14 Tex. Ap. 664 (1888); State v.
' See Hayes v. Michigan Central E. Co., Ill U. S. 228"
Yates, 31 W. Va. 763 (1833); 64 N. C. 873; 34 N. H. 510; (1834); 50 Conn. 128; 62 Ga. 679; 68 Ind. 297; 22 Kan.
8 Utah, 457. 359; 63 Me. 308: 24 Minn. 394; 25 id. 328; 31 Miss. 157;
■"1 Bl. Com. 442; 8 id. 392, 433,497; 32 Barb. 258; 63 46 id. 573; 09 Mo. 91, 215; 6 Mo. Ap. 397; 18 Hun, 108; 15
lU. 162; 21 How. 589. Pa. 290; 1 Thomp. Neg. 501, oases.
 FEOD 455 FERRY

damages occasioned thereby to animals, does not de- FERiE IfATUR^. See Animal.
prive itof its property witliout due process of law or FERMENTED. See Liquor.
deny it the equal protection of the laws. The addi- FEROCIOUS. See Animal.
tional damages are by way of punishment for negli-
gence; and the sufferer may receive them, rather FERRY.' A place where persons and
than the State.' things are taken across a stream or body of
In California, fences erected upon the line between
water, in boats, for hire.^
the roadway of a railroad and the land of coterminous
May refer to the water traversed or to the landing-
properties are not part of the "roadway" to be in-
cluded by the State board in its valu^,tion of the prop- place or places."
Ferry frahcMse. A right conferred to
erty of the corporation, but are ''improvements"
assessable by the local authorities of the proper land at a particular point upon a stream, and
county. 3 to secure toll for the transportation of pas-
At common law, the owner of land was not bound sengers and property from that point across
to fence it. In Massachusetts, prior to the statute of
1841, u. 125, there was no provision for fences along theThestream.* essential element is the exclusive right to
railroads, and the common law as to the owners and
transport persons, their horses, vehicles, and personal
occupiers of adjoining lands applied. Neither had
a right to trespass, himself or by his servants or cattle, goods, from one shore to the other, over the interven-
on the laud of the other, and neither could require ing water, for the toU.^
the other to prevent trespasses by maintaining a Ferriage. The price or fare to be paid
' for crossing a ferry ; also, the transportation
fence.'
Constructing a barbed-wire fence along a highway
is not in itself an actionable wrong, in the absence of itself." Ferryman. At common law, one who had
statutory inhibition, although animals may attempt
the exclusive right of transporting passengers
to enter the enclosure. If the land owner keeps in
good order such fences as are usually built, there is no over rivers or other water-coui'ses, for hire, at
liability for injury to animals. He is not bound to use an established rate.'
boards in constructing a wire fence. But he must not The grant of a ferry franchise in its nature implies
let a fence of any kind become a trap for passing ani- the taking of toll. The only ferries known in some
mals, which may be allured from the road to the in- places, as in Massachusetts, are toll ferries.^
adequately fenced enclosure, by the presence of other The ordinary feriy is a substitute for the ordinary
animals or by the sight of pasture.* bridge, for the accommodation of the public gener-
See Appendage; Close, 3; Enclosuke; Obstruct, 1; ally. The railroad ferry is a substitute for the rail-
TlUBER. road bridge, being the continuation of the railroad
FEOD. See Feud. tracks across a stream of water; it is not a grant of
FEOITMEWT. 1. The gift of a feud ; an exclusive ferry franchise.*
One may lawfully transport his own goods in his
infeudation. See Feud. own boat where another has an exclusive right of
Enfeoff. To give a feud.
reoffor. The grantor of a feud. A State may impose a license fee, directly or
ferry.'"
through a rhunicipal corporation, upon the ferry-
Feoffee. The giantee of a feud.
2. The gift of any corporeal hereditament," ' A. S. ferian, to convey across, carry, go.
by delivery of possession upon or within ' [Akin V. Western K. Co., 30 Barb. 310 (1867); Same
V. Same, 20 N. T. 376 (1859); Newton v. Cubitt, IS C. B.
view of the land.*
The most ancient method of conveyance. The apt- *58 (1802); 14 Bradw. 381.
' Schuylkill Bridge Co. v. Frailey, 13 S. & B. *424
est word was " do " or "dedi" I give or have given.
(1825); State v. Hudson, S3 N. J. L. 209 (1851).
As the personal abilities of the feoffee were the in-
ducement, his estate was confined to his person, and * [Mississippi Bridge Co. v. Lonergan, 91 111. 518
subsisted for life, By a feoffment, later, a fee-simple (1879); aa id. 369; 2 GUm. 169.
= [Broadnax v. Baker, 94 N. C. 078 (1880), cases. Smith,
was frequently created. With livery of seisin (q. v.),
the feoffee had an estate at will.' At present, land is C. J. ; s. 0. 55 Am. R. 633. Approved, Mayor of New
transferred only by deed or will. York V. Starin, 106 N. Y. 11 (1387).
• [People V. San Francisco, &c. E. Co., 35 Gal. 619
' Missouri Pacific R. Co. v. Humes, 115 U. S.'512 (1885). (1868).
'Santa Clara County v. Southern Pacific E. Co., 118 ' Clarke v. State, 3 McCord, 48 (S. C, 1822).
U. S. 414 (1886). « Attorney-General v. Boston, 123 Mass. 468 (1877),
5 Boston, &c. R. Co. v. Briggs, 133 Mass. 36 (1882), cases.
cases.
» Mayor of New Y'ork v. New England Transfer Co.,
< Sisk V. Crump, 112 Ind. 504 (1887); also Haughey v. 14 Blatch. 168 (1877), cases.
Hart, 62 Iowa, 9b (1683). In general, 22 Cent. Law J. '"Alexandria, &o. Ferry Co. v. Wisch, 73 Mo. 655
196 (1886), cases. (1881); See also 3 Bl. Com. 219; 2 id. 37; 5 Cal. 470; 20
= 2 Bl. Com. 310. Geo. 529; 42 Me. 20; 11 Mich. 63; 58 Miss. 796; 20 N. Y.
•3N. H. 260.
370; 77 Va. 218-19; 3 Dill. 332.
 FEU
456
FEUDf
keepers living in the State, for boats whicli they use necessary. Every receiver of lands was therefore
in conveying, from a landing in the State, passengers bound, when called upon by his benefactor, or the im-
and goods across a navigable river to a landing in an- mediate lord of his feud or tee, to do all in his power
other State, i to defend him. Such benefactor or lord was likewise -
Any person who invades the rights of the owner of subordinate to and under .command of his immediate
a ferry franchise by running a ferry himself, is liable benefactor or superior; and so upward to the prince
for any damages he causes the owner, and may be or general himself; and the several lords were also
restrained from a continuance. But, probably, the reciprocally bound, in their respective gradations, to
courts would not restrain the operation of a ferry de- protect the possessions they had given. ^
manded by public convenience simply because the Feudal; feodal. Relating to a feud or
rightful owner of the franchise neglects or refuses to feuds : as, feudal services or tenures, the
use it. Such franchise does not include the carrying
of merchandise without the presence of the owners; feudal law or system.
this is the business of a common carrier, and may be Feudalism. The feudal system ; the prin-
done without interference with such franchise. The ciples and constitution of feuds.
grant of a fi'anchise may be perpetual.* Feudalize. To reduce to feudal tenure.
See Bbidse; Carrier, Common; Commerce; Fran- Feudary. Held by or concerning feudal
chise, 1; License, 3; NnisANCE; Toll, 2; Tonnage;
Vehicle. tenure : also, the tenant of a feud.
FEU. See Feud. Feudatory; feudatary. A feudal pro-
FEUD .3 Land held of a superior, on con- prietor, or person who received a feud.
Feudist. One versed in feudal law.
dition of rendering him service. Opposed to
allodium, the absolute or ultimate property, Feudal system. A system of militai-y
which continued to reside in the superior.* tenure of landed property, adopted by the
See Allodial. general assembly of the principal landholders
A tract of land held by a voluntary and of the realm (Brittany) for self-protection.
Prevailed froni the ninth to the thirteenth centu-
gratuitous donation, on condition of fidelity
ries, attaining maturity under the Conqueror — 1066-
and certain services.5 1087. Something similar had been in use among the
The constitution of feuds originated in the military Saxons. The fundamental maxim was, all lands were
policy of the Celtic nations, a policy which was con- originally granted b.v the sovereign, and are, therefore,
tinued in their acquisitions after the tall of the Eoman held mediately or immaiiately of the crown.
empire. To secure those acquisitions, large districts The grantor was the proprietor or lord; the king
of land were allotted by the conquering general to his
was "lord paramount;" his immediate tenants were
superior officers, and by them, in smaller parcels, to ''lords mesne" — tenantsin capite, in chief; their ten-
the inferior ofleers and most deserving soldiers.
ants were " tenants paravail : " they made profit (avail)
These allotments were called feods, feoda, feoffs, out of the land.
feus, fiefs, fieus, and /ees — conditional stipends or re- At first, grants were held at the will of the lord ;
wards. The condition annexed was, that the posses- then, for a certain period; next, by the grantee and
sor should do service faithfully, at home and in war, one or more sons; about 1000 A. D., they became
to him by whom they were given; for which purpose hereditary.
he took the oath of fealty (g. v.), and for a breach of Ceremonies observed were: presentation of the
this condition and oath, by not performing the stipu- prospective tenant ; the grant — dedi et concessi, I have
lated service or by deserting the lord in battle, the
given and granted; corporal investiture — putting a
lands were to revert to him who granted them.^ robe on the tenant, before witnesses; homage or man-
Allotments, thus acquired, mutually engaged such
hood— professing to "become his (the lord's) man . . .
as accepted them to defend them; and, as they all
of life, and limb and earthly honor." The service to
sprang from the same right of conquest, no part could be rendered was called the rent. See Delivery, 1.
subsist independently of the whole; wherefore, all The grant was made upon the personal ability of
givers as well as all receivers were mutually bound to the grantee to serve in war, and do suit at court.
defend each other's possessions. But as that could not Hence, he could not alien, nor exchange, nor devise,
be done effectually in a tumultuous, irregular way, nor encumber, without consent of the lord. For those
government, and, to that purpose, subordination, was reasons, also, women and monks were never made
' Wiggins Ferry Co. v. Bast St. Louis, 107 U. S. 365, grantees.
The grantor assumed to protect the grantee in his .
370 (1S8S), Woods, J.
enjoyment of the land, and was to supply other land
2 Mayor of New York v. Starin,, 103 N. Y. 1, 9 (1887),
of equal value if the tenant was deprived of the grant.
cases.
s L. fides, faith, and Tent, ead, odh, or od, property, The services were: free — such as a freeman or sol-
estate in land,— or, meft, cattle, property; i. e., land dier might perform; or base — fit for one of servile
held on pecuniary consideration: A. S. feah, cattle. rank. In quantity and time they were also cei'tain or
uncertain.
< [3 Bl. Com. 105.
s Wallace v. Harmstad, 44 Pa. 499 (1363).
» 2 Bl. Com. 45-46. 1 2 Bl. Com. 45-46.
 FEUD 457
FICTION

The tenure was: 1. FranTc-teniire: on consideration Subinfeudation. Subletting part of a

of military service and homag^. When such service
was free but uncertain, the teniu:e was termed feud; carving smaller holdings out of a
feudal estate.
"knight-service," or "tenure in chivalry" — the most
honorable of all. When the servicts was both free and Since this deprived the superior lord of his profits of
certain, as fealty, or fealty and rent, the tenure was wai-dship, marriage, and escheat, which fell into the
hands of the middle lord, it was restj-icted by Magna
termed ■' free-socage." 2. Villeinage; "pure," when Charta, c. 83 (9 Hen. 3, 1225), and by Quia Emptores
the service was base and uncertain; and " privileged," (18 Edw. 1, 1290) entirely suppressed, and alienation,
when the service was base but certain. The last spe-
in the modern sense, introduced.'
cies was called "villain socage." See Socage.
Inseparably incident to tenure in chivalry were: To feu; a feu. A right to the use of
aids, relief, primer seisin, wardship, marriage, fines lands, houses, and other heritable subjects,
for alienation, and escheat, qq. v.
Under the great survey, made in 1086, the realm was
In perpetuity, in consideration of an an-
nual payment in grain pr money, called feu-
divided into sixty thousand knight's fees, correspond-
ing to the number of men in the army. duty, and certain other contingent burdens.
Personal service was gradually changed into pecun- Whence, a.lso, feu farm, feu holding.
iary assessments; and, finally, by statute of 12 Chas. II Practically, a sale for a stipulated annual payment
(1661), military tenures were abolished.' equivalent to chief rent. Modem feu-duties are gen-
In the United States, while lands are generally de- erally paid in money. On this footing almost all the
clared to be allodial, feudal principles, adopted as house property in towns, and-suburban-villa property,
part of the common law of England, continue to be in Scotland, is held.'' Compare Farm, Fee farm.
recognized. See also Abeyance; Attainder; Attornment; De-
The feudal system, to perpetuate estates in the mesne; Descent, Canonsof; Escheat; Fee, 1; Feoff-
same family, favored the heir-at-law. Hence, English ment; Primogeniture; Pueblo ; Eelief, 1 ; Tenure, 1;
courts have placed the narrowest construction on the Villain; Ward, 3.
words of wills.* n. FA. See Execution, 3, Writs of.
The Eevolution threw off the dominion of the FIAT. See Fieri.
mother country, and established the independent sov-
ereignty of the colonies or States. In Pennsylvania, FICTION.3 That which is feigned, as-
for example, an act was passed, November 87, 1779, for sumed, pretended. The legal assumption
vesting the estates of the late proprietaries in the that something is true which is or may be
Commonwealth. The manors and lands which had false; an assumption of an innocent and
been surveyed for them were excepted, and a pe- beneficial character, made to advance the
cimiary compensation provided. The " province " had
been a fief, held immediately of theprown. The Eev-
ends of justice. Compare Estoppel; Pre-
olution, and subsequent legislation, emancipated the sumption.
soil from the chief characteristic of the feudal sys- An allegation in legal proceedings that
tem. After this change, the proprietaries held their does not accord with the actual facts ; and
lands as other citizens — under the Commonwealth,
which may therefore be contradicted for
by a title purely allodial. Lands are now held medi-
ately or immediately of the State, but by titles cleared every purpose except to defeat the beneficial
of the rubbish of the dark ages, excepting only the end for which the fiction is allowed. <
feudal names of things no longer feudal. . . The Fictions of law are highly beneficial and useful;
State sold her lands for the best prioe she could get, especially as "no fiction extends to work an injury:"
and conferred upon the purchasers the same absolute the proper operation being to prevent mischief or
estate she held, excepting the fl^th part of any gold remedy an inconvenience that might result from a
or silver found, and six acres in the hundred for general rule. The maxim is, in fictione juris semper
roads; and these have been reserved, as everything subsistit cequitas — in a fiction of law equity always
else has been granted, by contract. Her patents ac- subsists; a legal fiction is consistent with justice.'
knowledge a,pecuniary consideration, and stipulate But not admitted, where life, liberty, or personal
for no fealty, escheat, rent-service, or other feudal in- safety is in jeopardy.'
cident. The State is the lord paramount as to no Illustrative examples: that the Idng was the orig-
man's land. When any of it is wanted for public pur- inal proprietor of all lands.' That an original capias
poses, the State, in virtue of her political sovereignty, had been granted, when a testatum capias issued into
takes it, but she«ompels herself, or those who claim
under her, to make full compensation to the owner.' 1 2 Bl. Com. 91 ; 44 Pa. 498.
■See 2 Bl. Com. 43-102; 4 id. 418-39; 1 id. 410; 1 2 Chamber's Encyclopedia.
Wasiib. E. P. 18. = L. fictio: fingcre, to invent.
*962.
' Bosley v. Bosley's Executrix, 14 How. 307 (1852). 1 [Strafford Bank v. Cornell, 3 N. H. 387 (1881).
» Wallace t). Harmstad, 44 Pa. SOO (1863), Woodward, » 3 Bl. Com. 4.3, 383. See Best, Presump., 87; 2 Burr,
J. ; Hubley v. Vanhorne, 7 S. & E. 188 (1821), Gibson, J. ; ' 4 Bl. Com. 880.
3 id. 447; 9 id. 83.3. See Green, Short Hist. Eng. Peop.
118-14. ' 4 Bl. Com. 418.
 458
FICTION FIDUCIARY

another coiznty.^ That a summons issues in an ami- FIDES. L. Trust, confidence, reliance;
cable action. That a person bailed is in the custody credence, belief, faith.
of his bail. That a> feigned issue is based upon k
Bona fides. Good faith. Bona fide. In,
wager made.' That what ought to be done is done, and
relates back to the time when it was to be done.^ The witii, or by good faith. Mala fides. Bad
doctrine of abeyance. 2 That a term of court consists faith. Mala fide. In, with, or by bad faith.
of a single day.* That a writ of error actually re- Uberrima fides. The best faith, the
moves the record, instead of a transcript of the rec-
severest good faith. Uberrima fide. With
ord, 1 That every person knows what is passing in the
courts. ' That the possession of one who has a right of
the
Bad. strictest good faith. See Faith, Good,
lien is the possession of the law.' That the law takes
no notice of a, fraction of a day.^ The doctrine of Fidei oomniissuin (pi. commissa). A
equitable conversion." The doctrine of representa-
tion in an agent, and in a decedent; and some features thing committed to one's faithfulness; a be-
of the early action of ejectment. quest or devise in trust ; a trust.
Fiction makes several corporations out of what is Fidei oommissarivs. The beneficiary under
really one, in order to give each State control over the a donation in trust; a ^dez or _/ide commis-
charters it grants. ' " sary ;a cestui que trust.
SHctio, in old Roman law, is proper-ly a term of A jidei commisswm (usually created by a will) was
pleading, and signifies a false averment which the de- the disposal of an inheritance, in confidence that the
fendant was not .allowed to traverse; as, that the transferee would convey it or dispose of the profits at
plaintiff was a Roman citizen, when in truth he was a the will of another. It was naade the business of a
foreigner. The object was to give jurisdiction. . .
Legal fiction may be used to signify an assumption particular magistrate, the p^-cetor fidei commissarius,
to enforce observance of this confidence. The right
which conceals, or aifects to conceal, the fact that a
thereby given was looked upon as vested, and entitled
rule of law has undergone alteration, its letter remain-
ing unchanged while its operation is modified. The to a'remedy. These fidei comviissa were the originals
of modeni uses and trusts. ' See Use, 2.
" fact " is that the law has been wholly changed; the Fide-jussio or fidejussio. A giving or
"fiction " is that it remains what it always was. . .
Fictions are particularly congenial to the infancy of being surety ; suretyship ; bail.
society. They satisfy the desire for improvement, Fidejussor. A surety; bail in admiralty.
while they do not offend the disrelish for change. He is absolutely bound to pay the costs and con-
Thus they become invaluable expedients for overcom- demnation atall events. '1
ing the rigidity of law.'' Admiralty may take a fidejussory caution or stipu-
Fictitious. 1. Not real; feigned : as, a ficti- lation in cases in rem, and in a summary manner
award execution to the prevailing party. Delivery of
tious — action, case, issue, name, party, payee.
A fictitious case is a suit brought upon facts with property on bail being given, is implied. ^
respect to which no real controversy exists. Fides servanda. Faith must be kept;
Any attempt, by a mere colorable dispute, or where the good faith of a transaction will be given
the appellant has become the sole party in interest, to effect.
get up a case for the opinion of the court, where there A maxim with regard to sales of personalty. If
is no real and substantial controversy, is an abuse there is no express warranty, general rules of implica-
reprehended by all courts, and punishable as a con- tion should be adopted with this maxim in view. A
tempt, i' warranty will be implied only when .good faith re-
2. Imaginary ; unsubstantial : as, fictitious
bail, q. v. FIDELITY.
quires it.* See Faith; Fides; Insur-
3. Not made in good faith : as, a fictitious ance; Trust, 1.
bid, q. V. FIDUCIABT.s Held, founded, resting
upon an actual trust: as, a fiduciary — ca-
1 3 Bl. Com. 283. pacity or character, contract or relation, debt,
2 3B1. Com. 433. debtor, creditor.
a 2 BI. Com. 107.
Fiducial. Of the nature of a trust.
' Newhall v. Sanger, 92 U. S." 766 (1876).
s Hunnicutt v. Peyton, 108 U. S. 356 (1880).
» 3 Pars. Contr. 282. ■ 2 BI. Com. 327; 1 Story, Eq. § 821; 2 id. §§ 965-67;
' 3 Pars. Contr. 234. 115Pomeroy,
id. 357. Eq. § 161. See 3 La. An. 432; 2 How. 619;
a 3 Pars, Contr. 504 (g).
' 1 Pars. Contr. 134. 23 Bl. Com. 291, IDS.
i» Home V. Boston, &c. B. Co., 18 F. B. 60 (1883), sBrig Alligator, 1 Gall. 149 (1812); United States ».
" Maine, Ancient Law, 24-25. Ames, 99 U. S. 40 (1878).
12 Lord V. Veazie, 8 How. 255 (1860), Taney, C. J ; * McCoy u. Artcher, 3 Barb. 330 (1848); 23 id. 684;
Cleveland v. Chamberlain, 1 Black, 426 (1861); Bart- 1 Mete., Mass., 551.
..meyer v. Iowa, 18 Wall. 131-35 (1873). ' L, fiduciarius: flducia, confidence; fides, q. v.
 459
FIEF FILE

A fiduciary debt is founded or arises upon some Fiat. Let it be done. An order or allow-
confidence or trust, as distinguished from a debt
ance by a judge or court.
founded simply upon contract. ^
A fiduciary relationsliip is one in which, if a wrong Fiat justitia. Let justice be done.
arises, the same remedy exists against the wrong-doer Fieri facias. Cause to be made. See
on behalf of the principal as would exist against a Execution, 3, Writs of.
trustee on behalf of the cestui que trust.' In fieri. In course of being done; not
In the New York laws allowing arrest as a remedy
yet completed. Opposed, in esse, q. v.
for debts incurred in a fiduciary capacity, " fiduciary " FIFTEENTH AMENDMENT. See
imports trust, confidence; refers to integrity or fidelity
rather than to credit or ability; contemplates good Citizen.
faith rather than legal obligation.' FIGrHT. Does not necessarily imply that
A debt contracted in a fiduciary capacity was not
both parties should give and take blows. It
released by a discharge in bankruptcy.* This applied
to technical trusts only, not to trusts implied from is sufficient that they voluntarily put their
contracts of agency or bailment." bodies in position with that intent. i See
"Fiduciary" and " confidential " relation seem to Combat; Duel; Mayhem: Prize-fighting.
be used by the courts and law-writers as convertible FIGURES. Numerals.
expressions. It is a peculiar relation which exists be- At-abic, 1888; Roman, MDCCCLXXXVni.
tween client and attorney, principal and agent, prin- The objection to using Arabic figures in formal
cipal and surety, landlord and tenant, parent and documents is that they may be readily altered. In
child, guardian and ward, ancestor and heir, husband some States they are not allowed in complaints and
and wife, trustee and cestui que trust, executors or
administrators and creditors, legatees, or distributees, indictments, except in setting forth copies. It is con-
sidered better to date formal instruments by writing
appointer and appointee under powers, partner and the day and year in words; and to write in words in
part-owners. In these and like cases tlie law, to pre- the body of a bill, note, or receipt the sum for which
vent undue advantage from the unlimited confidence,
it is given. See Desobiption, 4; Folio, 2; Foboebt;
affection, or sense of duty which the relation creates, WOBDS.
requires the utmost of good faith in all transactions
FILE.2 1. At common law, a thread,
between the parties."
See Fraud; Influence; Trust, 1. string or wire, upon which writs or other
FIEP. See Feud. exhibits ai'e fastened for safe-keeping and
FIELD. 1. A lot in a town may be a
ready reference.^
field." But a one-acre lot used for cultivat- 3. To exhibit or present to a court in the
ing vegetables is a "garden." 8 See Agri- regular way: as, to file a bill' in equity, a
culture. libel in admiralty or divorce, a petition, an-
2. "In the iield," said of a soldier, means swer, exception, writ of error.
in the military service for the purpose of Also, to leave a paper with an officer for
carrying on a particular war. ' action or preservation; and, to indorse a
FIERI. L. To be done; to be made. paper, as received into custody, and give it
Compare Facere. its place among other papers, — to file away.
' Crisfield v. State, &c., 55 Md. 194 (1880), Robinson, J. Files. Collections of papers, orderly ar-
2 Be West of England Bank, Exp. Dale, 11 Ch. D. 778 ranged ;also, papers under official custody.
(18T9), Fry, J.; Connecticut Mut. Ins. Co. v. Central On file. Kept in an orderly collection ; in
Nat. Bank, 104 U. S. 68 (1881).
" StoU V. King, 8 How. Pr. 290 (1853), cases; Frost v. its proper place.
Filing a paper consists in placing it in the proper
M'Carger, 14 id. 137 (1857); Sutton u. De Camp, 4 Abb. official custody, by the party charged with this duty,
Pr. 484 (1868); 1 Code E. 86, 87; 5 Duer, 86. and the making of the proper indorsement by the of-
<R. S. §5117.
' Chapman v. Forsyth, 2 How. 208 (1844); Henuequin A paper is filed when delivered to the proper officer,
V. Clews, 111 U. S. 681 (1884); Woodward v. Towne, 127 ficer.*
and by him received, to be kept on file.*
Mass. 42 (1879), cases; 104 id. 248; 15 Gray, 547-49; 16
Conn. 22:3; 77 N. Y. 427; 13 Rep. 468; 9 Bened. 495-97,
cases; 5 Blss. 324. 1 State V. Gladden, 73 N. C. 155 (1875); Tate v. State,
' Robins V. Hope, 57 Cal. 497 (1881): 1 Story, Eq. § 218. 46 Ga. 148 (1872).
As to fiduciary depositors in banks, see Naltner v. " L. fllum, a thread.
s [Gorham v. Summers, 25 Minn. 86 (1878); 27 id. 18,
Dolan, 108 Ind. 500 (1886): 26 Am. Law Reg. 29-^0 (1887),
23; 16 Ohio St. 548; 14 Tex. 339.
' State V. McMinn, 81 N. C. S87 (1879); Commonwealth 4 Phillips V. Beene, 38 Ala. 251 (1863).
a. Josselyn, 97 Mass. 412 (lt:67). s Peterson v. Taylor, 15 Ga. 484 (1854); Powers v.
8 Simons v. Lovell, 7 Heisk. 610 (1872). State, 87 Ind. 148 (1882); Amy v. Shelby County, 1 Flip.
' Sargent v. Ludlow, 42 Vt. 72D (1370). 104 (1872); 6 Ind. 309; 2 Blackf. 247; 2 Iowa, 91; 29 id.
 FILIAL 460 FIND

An allegation that " no certificate has been filed " tory: ending or concerning some intermedi-
in the office of the register, is equivalent to " has not ate matter or issue ; also opposed to prelimi-
been left for record. " '
An affidavit of claim is " filed with " a declaration
nary, as in final injunction, q. v. Compare
■when both are filed at the same time. And thi s is not Definitive.
affected by their being detached, or by the place of A final judgment or decree puts an end to the ac-
deposit in the office. "^ See Lodoe, 1 (2). tion by declaring that the plaintiff has or has not enti-
In modern practice, "the file" is the manner tled himself to recover the remedy for which he sues.^
adopted for preserving papers; the mode is immate- A judgment or decree which determines the par-
riaL Such papers as are not for transcription into ticular case is final."
records are folded simUarly, indorsed with a note or A decree is final when the court has completed its
index of their contents, and tied up in a bundle — "a adjudication of the cause.^
It has long been well settled that a judgment or de-
file." cree, to be final, must terminate the litigation between
FILIAL. See Emancipation; Parent.
the parties on the merits of the case, so that if there
PILIATION. The relation or tie be- should be an affirmance in the appellate court, the
tween a child and its parent, especially its court below would have nothing to do but to execute
father ; also, ascertainment of paternity, af- the judgment or decree it had already rendered. It
filiation. has not always been easy to decide when decrees in
Afflliation. Judicial determination of equity are final within this rule, and there may be
some apparent conflict in the cases on that subject,
paternity — that a man is the father of a bas- but in the common-law courts the question has never
tard. See FiLius. been a difficult one. If the judgment is not one which
The mother's testimony must be corroborated.^ disposes of the whole case on its merits, it is not final.
FILIUS. L, A child ; a son. Consequently it has been uniformly held that a judg-
Filius nullius. The child of nobody. ment of reversal with leave for further proceedings in
the court below cannot be brought before the Supreme
Filius populi. The child of the people. A
Court on a writ of error.*
bastard, q. v. Thus, a decree of sale in a foreclosure suit, which
FILXJM. L. A thread; a line — the settles all the rights of the parties and leaves nothing
middle line of a stream or road. to be done but to make the sale and pay out the pro-
The imaginary line drawn through a ceeds, isfinal for purposes of appeal.*
stream or highway at which the titles of the Find. l. To come lawfully into the pos-
session of lost or abandoned personalty.
opposite owners presumably meet.*
The finder has a clear title against all the world ex-
Filum aq.u8e. The line of the water; cept the true owner, who has not shown any intention
water-line. to abandon,' He stands in the place of the owner, is
Ad filum aquae.. To the line of the water. a trustee for the owner. The place of finding creates
Medium filum aquce. The middle line of no exception. After the original owner is known and
the water. See Riparian. accessible, any keeping with intention to appropriate
is larceny. Reasonable diligence to learn who the
Filmn viae. The line of the way. rightful owner is should be used. Necessary expenses
Medium filum vim. The middle line of the incurred in preserving the property or in discovering
road. the owner are a lien.'
Thus, as between the finder and the owner of a
FINAL.'' 1. Pertaining to the end ; to be
paper-sack in which bank-notes are, found, the notes
paid at the close of a cause : as, final costs. are the property of the finder; ^ so, also, as between
Opposed, interlocutory, q. v.
2. The last: as, a final account, balance, '3B1. Com. 308,462.
settlement, qq. t'. 2 Weston V. Council of Charleston, 2 Pet. 464 (1829),
Marshall, C. J.
3. Putting an end to ; conclusively deter-
mined in a particular court : as, a final — ad- ' Green v. Fisk, 103 U. S. 619 (1880), Waite, C. J.
' Bostwick V. Brinkerhoff, 108 U. S. 3 (1882), cases,
judication, decree, disposition, judgment, Waite, C. J. ; Dainese v. Kendall, 119 id. 64 (1886), cases.
order, sentence, qq. v. Opposed, interloou- = Grant v. Phcenix Ins. Co.; 106 U. S. 431 (1882). See
St. Louis E. Co. V. Southern Express Co., 108 id. 28
46S; 135 Mass. 680; 13S id. 190; 55 Mo. 301; 65 id. 600; (18,3); 17 Johns. 518; 69 Cal. 657; 60 Me. 401 ; 14 Blatoh.
130.
13 Barb. 336; 2 Caldw. 488; 14 Tex. 339.
' Wood 13. Union Gospel Church Association, 63 Wis. »2B1. Com. 9; 2 Kent, 290.
13 (1886). ' Durfee v. Jones, 11 E. I. 688 (1877), cases; Griggs v.
» Hossler V. Hartman, 82 Pa. 63 (1876). State, 68 Ala. 426 (1877), cases; N. Y. & Harlem E. Co.
3 1 Whart. Ev. § 414. V Haws, 66 N. Y. 178 (1874) ; Armory v. Delamirie, 1 Sm.
< See 3 Kent, 427, 4-28, 432, 434. L. 0. 636-66, cases.
^ L. finalis: finis, limit, end. 8 Bowen v. Sullivan, 63 Ind. 288-91 (1878), cases.
 FIND 461
FINE

the finder and the keeper of a hotel in which money or " Not found "is an abridged form of return which
other thin^ of value is found.* usage sanctions. It imports that the defendant was
The owner of a tannery neglected to remove all of not found within the meaning of the precept, that is,
the hides he had placed in the vats. The land was after proper effort to find him in the due execution oJ
sold, and, forty years later, a laborer discovered the the precept. ' See Reside.
hides. Held, that the representative of the owner was 4. To arrive at as a conclusion : to conclude
entitled to them.*
Property is not lost, in the sense of the rule, if it or terminate formally : as, to find an indict-
was intentionally laid on a table, counter, or other ment, a verdict.
place, by the owner, who forgot to take it away. In If the grand jury are satisfied of the truth of an ac-
such case the proprietor of the premises is entitled to cusation, they indorse upon it " a true bill." The in-
the custody. Whenever the surroundings show that dictment isthen said to be " found." To this at least
the article was deposited in its place, the finder has no twelve jurors must agree. Opposed, "not found."*
right of possession against the owner of the building. Finding. The decision of a judge, arbi-
An article casually dropped is also within the rule.' trator, jury, or referee.
See Abandon, 1; Estrat; Reward, 2; Tbeascke- Finding against evidence. A finding
trove; Trover.
3. A corporation engaged in business within which negatives the existence of a fact ad-
mitted by the pleadings ; also, a finding not
a State is said to be " found" doing business
sustained by the evidence. '
there.' General finding; special finding. Issues
To give the Federal courts jurisdiction in personam
over a foreign corporation, in the absence of a volun-
of fact in civil cases in any circuit court may
tary appearance, it must appear, as a fact, that the be tried and determined by the court, with-
corporation is carrying on business in such foreign out the intervention of a jury, whenever the
State or district; that such business is transacted or
managed by some agent or oflflcer representing the
parties, or their attorneys of record, file with
the clerk a stipulation in writing waiving a
corporation, and some local law must make the cor-
poration amenable to suit there.* jury. The finding of the court upon the
The presence of the chief officers of a corporation facts, which may be either general or special,
in a State other than that of its creation does not shall have the same effect as the verdict of a
change its residence, nor does the fact that the officers
take into such State corporate property for exhibi-
tion and advertisement, bring the coiporation into the The parties are concluded by the propositions of
fact which the evidence, in the opinion of the court,
State as an " inhabitant," or so that it can be " found " jury.*
establishes. Whether general or special, the finding
there. ^ has the same effect as the verdict of a jury ; and its
Corporations are citizens of the State vmder whose
laws they are created. They cannot, by engaging in sufficiency to sustain the judgment is the only matter
for review, ' — the "sufficiency" of the finding, not of
business in another State, acquire a residence there."
the facts, is meant.'
3. " Find " and " found," s~aid of a defend-
ant as to whom a summons or other process Special finding. A statemen t of the ulti-
mate facts on which the law must determine
has been issued, have a technical meaning,
the rights of the parties.'
the equivalent of the Latin inventus, come The finding of a referee should have the precision
of a special verdict; it should specify with distinctness
upon, met.'' the facts found, and not leave them to he inferred.'
Opposed, "not found:" non est inventus,
he has not been found ; abbreviated n. e. i. See Verdict, Special.
FIlfE.s 1. An amicable composition or
iHamaker x-. Blanchard, 90 Pa. 879 (1879), cases,
Trunkey, J. agreement of a suit, actual or fictitious, by
2 Livermore v. White, 74 Me. 452 (1883), cases. leave of the king or of his justices, whereby
3 R. S. § 739; Exp. SchoUenberger, 96 U. S. 378(1877);
Blackburn v. Selma, &c. R. Co., 2 FUp. B.35 (1879); Rob- < International Grain Ceiling Co. v. DUl, 10 Bened. 95
inson V. Nat. Stock-Yard Co., 12 F. R. 361 (1883); Mohr (1878),
'4B1.Choate, J.
Com. 305.
DistUling Co. v. Insurance Cos., ib. 474, 476(1888), cases;
Merchants' Manuf. Co. v. Grand Trunk R. Co., 13 id. 'Silvey v. Neary, 59 Cal. 98 (1881); Harris v. Harris,
358, 360 (1882), cases. ib. 620 (1881).
<R. S. §649.
■1 United States v. American Bell Telephone Co., 29
F. R. 17 (1886), cases, Jackson, J. ; 32 id. 437. 'R. S. § 700; Ryan v. Carter, 93 U. S. 81 (1876), cases;
s Carpenter v. Westinghouse Air Brake Co., 3-3 F. R. Tyng V. Grinnell, 93 U. S. 409 (1875), cases; 18 Wall. 254;
434 (1887), Brewer, J. 103 U. S. 566; 112 id. 604.
« Walnut V. Wade, 103 U. S. 688 (1880).
• Fales V. Chicago, &c. R. Co,, 32 F. R. 678-79 (1887),
' Norris v. Jackson, 9 Wall. 127 (1869), cases.
" Mason Lumber Co. v. Buchtel, 101 U. S. 637 (1879).
' 'CarterJ. v. Youngs, 42 N. Y. Supr. Ct. 172 (1877),
Sanford, ' L. finis, end.
 FIRE
FINE 463

lands in question become, or are acknowl- The Supreme Court cannot, on habeas corpus^ revise
a sentence on the ground that the fine is excessive.*
edged to be, the right of one of the par- SeeAMEKOE; Pardon; Punish.
ties, i FINGER. See Mayhem.
It put an "end" to controversies concerning the
matter. The plaintiff began an action of covenant FINIS. See Final ; Fine.
upon a supposed agreement to convey to him. The FINISHED. See Final ; Pekpect.
defendant (the deforciant) then applied to the court Moving into a house may not estop the owner to
for leave to settle the matter; which he did by ac- deny th/it it was finished, within the meaning of his
knowledging that thf lands were the right of the com- acceptance of an order " to be paid when the house is
plainant. The " note" of the fine was an abstract of
the writ of covenant, and' the concord; it named the FIRE. A policy of insurance against Are
finished."'
parties, the laud, and the agreement. The ''foot" or includes every loss necessarily following di-
conclusion recited the parties, day, year, place, and
before jvhom acknowledged or levied. The party levy- rectly from the occurrence of a fire.s See
ing the fine was called the " cognizor;" he to whom it Cause, 1, Proximate; Explosion; Insur-
was levied, the "cogni^ee." The proceeding was a ance Lightning.
;
solemn conveyance on record, and bound parties, priv- Fire-arm. A weapon acting by the force of gun-
ies, and strangers — after five years.' powder.^ See Arms, 2; Loaded; Weapon.
The object of tenest sought by " levying a fine " was Pire department. A city which is authorized to
the barring of an estate tail. The statute of fines, 11
maintain water-works and a ' fire department, and
Hen. Til (1496), c. 1, and 32 Hen. VIII (1541), c. 3.6, were which collects taxes for those purposes, is not respon-
abolished by 3 and 4 Wm. IV (1833), t. 74, which sub- sible for the negligence of its fire department in per-
stituted adisentailing deed by the tenant in tail." mitting private property to be burned. ^
The object of a fine was to quiet titles more speed- Fire-escape. An act which directs that certain
ily than by the ordinary limitation of twenty and buildings shall be provided with fire-escapes by the
twenty-five years. One of two contesting claimants "owners," does not apply to an owner in fee, not in
could compel an assertion or abandonment of the pre- possession, who has leased the premises, but to the
tensions of his adversary in one-fifth the usual period tenant. Being a penal statute, it cannot be extended
of delay. . . In use in New York down to 1830.' by iiyplication to parties who do not clearly come
Compare Recovery, Common. See Acknowledg- within its terms. ^
ment, 2. Fire ordeal. See Ordeal.
3. A pecuniary punishment for an offense, .Fireworks. Percussion caps, designed for signal-
inflicted by sentence of a criminal court. A ing railway trains are '* explosive preparations,"
within the ijieaning of a statute regulating the keep-
penalty; a forfeiture.* ing of such articles, although they may not be " fire-
A sum of money imposed by a court ac- works "as the latter term is known to commerce.'
cording to law, as a punishment for the Set on fire. A statute giving damages against any
breach of some penal statute. Never applied one who shall " set on fire " the woods of another,
does not apply to an accidental firing by a locomotive
to damages or compensation for loss.'
engine, without negligence.^
A pecuniary penalty. ^ See Arson; Necessity; Res, Perit, etc.; Salvage;
A "fine " is an amercement imposed upon a person Take, 8.
for a past violation of law; "exemplary damages"
have reference rather to the future than the past con- ' Exp. Watkms, 7 Pet. '574 (1833); Pervear v. Massa-
duct of the offender, and are given as an admonition chuset s, Wall.
6 480 (1866). As to the power in associ-
not to repeat the offense."' ations to impose fines upon members, see 27 Am. Law
Excessive fines shall not be imposed.^ Reg., 370-74(1883), cases.
This applies to national, not to State, legislation. 2 Robbins v. Blodgett, 121 Mass. 584 (1877).
* Brady v. North Western Fire Ins. Co., 11 Mich. 445

' 2 Bl. Com. 349-57. 'Atwood V. State, 53 Ala. 509 (1875); Evins v. State,
(1863).
46 ^ Hutchinson v. State, 62 id. S (1878);
id. 88 (1871);
2 Williams, Real Prop. 47-49.
■ McGregor v. Comstock, 17 N. Y. 163, 166 (1888); 6 id. Williams v. State, 61 Ga. 417 (1878).
493. See also Guthrie v. Owen, 10 Yerg. 341 (1837). « Robinson v. Evansville, 87 Ind. 334, 336-37 (1882): 85
< Hanscomb v. Russell, 11 Gray, 374 (1858), Metcalf , J. id. 130; 17 B. Mon. 720: 19 Ohio St. 19; 16 Gray, 297; 104
» Atchison, &c. R. Co. v. State, 32 Kan. 15 (1879), Val- Mass. 87; 123 id. 311; 69 Pa. 420; 88 Conn. 368; 63 Mo.
entine, J. ; Jockers v. Borgman, 29 id. 122 (1883), cases, 159; 18 Wis. 8-3; 33 id. 314; 39 Iowa, 575; 51 Ala. 139;
Horton, C. J. Dill. Munic. Corp. § 774.
» New Mexico v. Baca, 2 N. M. 190 (18S2). See also 1 ' Schott V. Harvey, 105 Pa. 222 (1884); Lea v. Kirby, 10
Ind. 315; 4 Iowa, 300; 6 Neb. 37; 4 Lans. 140; 15 Rich. Cin. Law Bui. 449.
20; 14 Tex. 398. ' Bliss V. Lilley, 113 E. C. L. 133 (1852).
' Schafer «. Smith, Sup. Ct. Ind. (1877): 4 Cent. Law s Missouri, &o. R. Co. v. Davidson, 14 Kan. 849 (1875).
J. 272. Liability of railroad companies for causing hres, 4
8 Constitution, Amd. Art. VIII. South. Law Eev. 703-69 (1878), cases.
 FIRM FISH
463

FIRM. See Partnership; Signature; Oysters are fish, within the meaning of a covenant
Trade-mark. not to retail flsh.>
Oysters which have been taken, and thus become
FIRST. 1. Preceding all others; fore- private property, may be planted in a place subject to
most, earliest, preferred: as, first — mort- the flow of the tide and where there are none natu-
gage, occupant, purchaser, talier, term ; first rally, and remain private property."
of exchange, qq. v. The owner has the same absolute property in oys-
ters that he has in inanimate things or in domestic-
2. In a will, may not import precedence of animals. Oysters planted in public waters will not be
one bequest over another.! considered abandoned to the public unless planted
Compare Prima; Primary. where oysters naturally grow. If they interfere with
FISCAL. See Confiscate ; Forfeiture. the rights of navigation^ they may be removed as a
FISH; FISHERY. 1. The right to nuisance; but a private person, not the owner, may
not convert them to his own use.^
take fish at a certain place or in particular In the exercise of its police power, a State may
waters is a " fishery." grant to individual citizens the exclusive right to plant
Common of fishery or piscary.^ A lib- and to remove oysters under the public waters.* See
erty of fishing in another's waters. Free Aqua, Currit, etc.
fishery. The exclusive right of fishing in a Fish commissioner. An act of Con-
public river. Several fishery. The owner gress approved February 9, 1871, provides
of this is also owner of the soil, or derives his for the appointment of a commissioner of fish
right from such owner; a separate fishery.' and fisheries, wi^h power to preserve and in-
a common of fishery is not^n exclusive right, but crease food fishes throvzghout the United
is enjoyed ia common with certain other persons. A States.5 Some of the States have a board of
free fishery is a franchise, obtained by grant or pre- commissioners, with lilie powers.
scription, and is distinct from ownership in the soil.^
The right to take fish in waters upon the soil of a An act approved January 20, 1888, amends the fore-
going act so that it reads: There shall be appointed
private proprietor, for one's, own use, is not an ease- by the President, by and with the advice and consent
ment, but a right of profit in lands. It can be acquired
of the Senate, a person of scientific and practical ac-
only by grant or prescription. But neither prescrip-
tion, nor custom, nor dedication raises a general quaintance with the fish and fisheries to be a commis-
sioner of fish and fisheries; that he shall receiye a
right in the public to enter upon private land to fish
salary at the rate of five thousand dollars a year, be
in the waters thereon.' removable at the pleasure of the President, and shall
Each State owns the bed of all tide-waters within
not hold any other oSace or employment under the
its jurisdiction, unless it has granted them away;
authority of the United States or any State."
also, the tide-waters themselves, and the fish in them, Fish laws. See Game, 1 ; Sea.
as far as capable of ownership while running. The
ownership is that of the people in their united sover- 2. Referring to a bill in equity or to inter-
eignty. The title thus held is subject to the paramount rogatories,fishing
" " imports seeking to pry
right of regulating navigation, granted to the United into the title or individual affairs of an ad-
States. The fisheries remain under the exclusive con- verse party.
trol of the State. The State has the right, in its discre-
tion, to appropriate its tide-waters and the beds to be A "fishing bill" is a bill in which the
used by its people as a common for taking and culti- plaintiff shows no cause of action, and en-
vating fish [oysters], so far as may be done without deavors to compel the defendant to disclose
obstructing navigation. Such appropriation is a regu-
lation of the use by the people of their common prop- a cause in the plaintiff's favor.'
A bill in equity that seeks a discoveiy upon gen-
erty. The right m the people comes from citizenship
and property combined. It is a property right, not a eral, loose, and vague allegations is styled a " fishing
mere privilege or immunity of citizenship. As the
State may grant the exclusive use of any part of its
Waite, C. J. See also Boggs. v. Commonwealth, 76
common property to one of its citizens, so it may con-
fine the use to its own citizens.* Va. 989(1882); M'Candlish v. Commonwealth, ib. 10O4
(1882).
1 Caswell V. Johnson, 68 Me. 166 (1870).
1 Everett v. Carr, 59 Me. 330 (1871): 57 id. 523. ' Fleet V. Hegeman, 14 Wend. 42 (1835); State v. Sut-
'''L. piscarius, relating to fishes or fishery: piscis, a ton, 2R. I. 434 (1853) ; Lowndes v. Dickerson, 34 Barb.
Bsh. 586 (1861).
» [3 Bl. Com. 34, 39-40; 16 Op. Att.-Gen. 663. " State v. Taylor, 27 N. J. L. 119 (1858), Green, C. J.
* 3 Kent, 359. See 1 Whart. 138. See also Johnson v. Loper, 46 id. 321 (1884).
« Cobb V. Daivenport, 33 N. J. L. 225-26 (186S), Depue, J, * People V. Thompson, 30 Hun, 457 (1883).
See also Cole v. Eastman, 133 Mass. 67 (1882), Bevens, » R. S. § 4396.
• 25 St. L. 1.
Justice.
• McCready v. Virginia, 94 U. S. 394-97 (1876), cases. ' [Carroll v. Carroll, 11 Barb. 298 (1851), Mitchell, J.
 FIT 464 FIXTURE

bill;" any such bill "will be at once dismissed upon and should be peculiarly fitt.ed to something
that ground alone.*
A party has no right to any discovery except of
that is actually fastened upon it, and essen-
facte, deeds, and other writings necessary to the title tial to its profitable enjoyment.'
If the building, or permanent fixture, is erected
under which he claims. ^ See Discovery, 6.
upon or attached to the realty by the owner of the
riT. See Cultivation ; Disceetion, 3.
realty, it is not the subject of conveyance as person-
FIX.8 1. To render finally liable : as, to alty, even by the owner of the freehold. . . If a
fix bail, q. v. building is erected without the assent of the land-
3. To set for trial or hearing : as, to fix a owner, itbecomes at once a part of the realty, and is
case on a list. the property of the owner of the freehold. A building,
resting upon blocks and not firmly attached to the
3. To prescribe the rule by which a thing
freehold, placed upon another'.s land by his assent,
is to be determined : as, a constitutional di- continues to be personalty even though there is no ex-
rection that the general assetobly shall fix press agreement that the owner shall remove it.^
the comiDensation of all officers.* Articles that may assume the character of realty

A salary is " fixed " when it consists of a or personalty, accordiug to circumstances, are " fixt-
lu-es " — things substantially and permanently affixed
stipulated rate for a definite period. Pay or to the soil, though in their nature removable. The old
emolument is fixed when the amount is
notion of physical attachment is, by some com'ts, re-
agreed upon and the service defined. 5 garded as exploded. Whether a structure is a fixture
A salary, pay or emolument is fixed by law when depends upon the nature and character of the act by
the amount is named in a statute; and, by regulation, which the structure is put in its pla-ce, the pohcy of
when named in a general order, promulgated under the law connected with its purpose, and the intent of
provision of law, and applicable to a class or classes those concerned in 'the act. Other courte still hold
that it is essential that the article should not only be
of persons.*
FIXTITRE. a thing fixed or affixed to annexed to the freehold, but that it should clearly ap-
another thing. pear that a permanent accession was intended. ^
A thing is deemed to be affixed to land when at-
A thing fixed in a greater or less degree to
tached by the roots, imbedded in it, permanently rest-"
realty.' ing upon it, or permanently attached to what is thus
Anything annexed to the freehold ; that is,
The persons between whom questions ordinarily
permanent.*
fastened to or connected with it.^ arise in relation to fixtures are: vendor and vendee,
A chattel annexed to the freehold, but re- including mortgagor and mortgagee; heir and execu-
movable at the will of the person who an- tor; landlord and tenant; executor of tenant for life,
nexed it.8 and reversioner or remainder-man.
The rule of the common law is that whatever is
Does not necessarily import a thing affixed
once annexed to the freehold becomes part of it, and
to the freehold. The word is modern, and cannot afterward be removed, except by him who is
generally understood to comprehend any ar- entitled to the inheritance. The rule, however, was
ticle which a tenant has the power of remov- never infiexible or without exceptions. It was con-
strued most strictly between executor and heir, in
ing.9 favor of the latter; more liberally between tenant fdr
As a rule, articles, to become fixtures,
life or in tail and remainder-man or reversioner, in
must either be fastened to the realty or to favor of the former; and with much greats latitude
what is clearly a part of it, or they must be between landlord and tenant, in favor of the tenant.
placed upon the land with a manifest intent But an exception of a m\ich broader cast, and almost
as ancient as the rule itself, is of fixtures erected for
that they shall permanently remain there,
purposes of trad". Upon principles of public policy,
'iJe Pacific Eailway Commission, 32 F. E. 263 (1887), and to encom-age trade and manufactures, fixtxu-es
Sawyer, Cir. J. ; 1 Story, Eq. H. § 325, cases. erected to cp-rry on a business have been allowed to be
= 3 Story, Eq. § 1490; Lewis v. Shainwald, 7 Saw. 413 removed by the tenant during his term, and are
(1831), cases. deemed personalty for many other purposes.*
3 L. fixuTn; figuere, to fasten, attach.
I Cricket v. State, 18 Ohio St. 81 (1868). ' Farmer's Loan. &c. Co. v. Hendrickson, 85 Barb.
s [Hedrick v. United States, 16 Ct, CI. 101 (1880), Da- 489 (1857), Strong, P. J.
vis, J. = Washburn, Eeal Prop. 3.
' [8 Kent, 343. = Washb. E. P. 6 (18); Hill v. Sewald, 53 Pa. 373-75
' Elwes V. Mawe, 3 Sm. L. C. 177, 187, cases.
(1866); Meigs's .Appeal, 63 id. 33 (1869); Capen ii. Peck-
" [Hallen ii. Eunder, 1 Crom., M. & E. 376 (1834), ham, 35 Conn. 93-94 (1868); Voorhees v. MoGinnis, 48
Parke, B. N. Y. 2S2 (1872) ; Stout v. Stoppel, 30 Minn. 58 (1888), cases.
» Sheen v. Eickle, 5 M. & W. •188 (1839), Parke, B. ' Cal. Civil Code, § 660.
See also Eogers v. Qilinger, 30 Pa. 189 (1858); 8 W. & S. ' Yan Ness v. Pacard, 2 Pet. *143, 147 (1839), Story, J.
116. IAs between vendor and vendee, see Fratt v., Whittier.
 FLAG 465 FLOTSAM

As between mortgagor and mortgagee, the mort- Flagrante bello. War raging: during
gagor may remove that which is not a fixture, and hostilities. See War.
ivhlch was placed upon the ground after the mort-
gage was executed.' Flagrante crimine or delicto. While
The law imposes no obligation on a landlord to pay the offense is being perpetrated : in the very
the tenant tor buildings erected on the demised prem- act. See Delictum, Flagrante.
ises. The common-law rule is that all buildings be- PLAT. A place within a river, cove,
come part ot the freehold. The innovation on this
rule has extended no further than the right of removal
creels:, or harbor, more or less under water ;
ivhlle the tenant is in possession.^ "a shallow or shoal water." i
Eolling-stock is inseparably connected with its rail- PLEE. See Fugitive.
road in its entire length, and is part of the security of Plee to the wall. Signifies that a person
lienholders."
Trees reared in nursery grounds tor sale as merchan-
must use every reasonable means of escape
dise possess none ot the legal characteristics ot fixt- before he may kill a man who assails him
ures. Fixtures are articles which have an existence with apparently felonious intent.
independent ot the freehold, and are afterward an- To excuse homicide on the plea of self-defense it
nexed to and become part of, it. * See Emblements. must appear that the slayer had no other possible (or
But there is no universal test for determining at least probable) means of escaping from his assail-
whether an article, personal in nature, has acquired ant.* See Defense, 1 ; Retreat.
the character ot realty. In each case regard is to be PLEET. A celebrated prison in London.
had to the nature ot the chattel itself, the injury that Named from a river or ditch near by. Used chiefly
would result from its removal, and the intention in for debtors and bankrupts, and for persons charged
placing it upon the premises with reference to trade, with contempt of the coiuts of chancery, exchequer,
agriculture, or ornament.^ See Machinery; Store. and common pleas. Abolished in 1842; andtomdown
PLAG-. See Law, Of the flag.
The act of April 4, 1818, as re-enacted in Eev. St. in PLOAT.
A certificate authorizing the
1845.S
§§ 1791-93, directs that the flag of the United States
holder to enter a certain amount of land.<
shall be thii-teen horizontal stripes, alternate red and
Floating debt. That mass of valid
white; that the union thereon shall be thirty-seven
claims against a corporation, for the pay-
stars, white in a blue field; that on the admission of a
new State one star shall be added, such addition toment of which there is no money in the
take effect on the fourth of July next succeeding such
admission. treasury specifically designated, nor any tax-
PLAGGnfG. See Pate. ation or other means of raising money par-
PLAGKANS. L. Burning, flaming up : ticularly provided.5 Compare Funding.
in actual execution or commission. Whence PLOGGnSTG. Ideating with lashes; whip-
flagrant, flagrancy. ping, q. V. in the army by act ot August B, 1861; '
Abolished
in the navy by act of June 6, 1872.'
B8 Cal. 126, 128-33 (1881), cases; 28 Cent. Law J. 485 FLOOD. See Act, 1, Of God ; Alluvion.
(1866), cases. See also Carpenter v. Walker, 140 Mass. FLOOR. A section of a building between
419 (1886); Hedderick v. Smith, 103 Ind. 203 (1885), cases; horizontal planes.
85 Am. Law Beg. 24-28, 664-66 (1886), cases.
The words, used in a lease, the "first floor" are
1 Cope V. Romeyne, 4 McLean, 384 (1848).
equivalent to the " first story " of the building, and
" Kutter t'. Smith, 2 Wall. 497, 499 (1864), Miller, J.
naturally include the walls, unless other words con-
" Milwaukee, &c. R. Co. v. St. Paul R. Co., 2 Wall. trol such meaning. A covenant by a lessee not to
641 (1864); ib. 645-49, Mr. Carpenter's brief. See also underlet any part of the premises is not broken by his
Freeman v. Dawson, 110 U. S. 270 (1883), cases. allowing a third person, in consideration of an annual
' Hamilton v. Austin, 36 Hun, 141-42(1885), FoUett, J. payment, to place a sign upon the outside wall, for a
»Cobum V. Litchfield, 132 Mass. 448 (18S2), cases,
Morton, C. J. ; Thomas v. Davis, 76 Mo. 76 (1882) ; 6 Am. FLOTSAM.
stated time.** Floating. Goods lost by
Law Eev. 412-26 (1872), cases; 2 Flip. 200; 70 Ala. 230; 9
Cal. 119; 9 Conn. 67; 16 111. 421, 482; 18 Ind. 231; 35 id. shipwreck which continue to float on the
387; 8 Iowa, 544; 21 id. 177; 44 id. 60; 10 Kan. 314; 64
' Stannard v. Hubbard, 34 Conn. 376 (1867).
Me. 266; 14 Mass. 352; 30 Minn. 58; 16 Miss. 444; 42 id.
71, 732; 43 id. 349; 32 Mo. 206; 76 id. 119; 5 Mo. Ap. 293; = 4 Bl. Com. 1*4; 3 id. 3-4.
3 Neb. 131; 8 id. 192; 3 Nev. 82; 6 id. 218; 7 id. 37; 41 'Cowell; Tomlins; Hayden, Diet. Dates.
N. H. 503; 57 id. 514; 14 N. J. L. 393; 24 id. 287; 38 id. < Marks v. Dickson, 20 How. 504 (1857).
457; 24 N. J. E. 260; 20 Wend. 656; 10 Barb. 157, 498; 11 » [People V. Wood, 71 N. Y. 374 (1877), Folger, J. See
id. 43; 35 id. 58; 51 id. 45; 13 N.Y. 170; 20 id. 344; 35 id. Cook V. Saratoga Springs, 23 Hun, 59 (1880).
379; 48 id. 278; 66 id. 489; 93 id. 311; 1 Ohio St. 524; 22 « E. S. § 1342, art. 98.
id. 563; 2 R. I. 15; 26 Gratt. 752; 17 Vt. 403; 28 id. 428; ' E. S. § 1642, art. 49.
8 Lowell V. Strahan, 145 Mass. 8 (1887), W. Allen, J.
24 Wis. 571 ; 6 Am. L. Rev. 412; 17 Am. Dec. 686, 690.
(30)
 FLOWERS 466 FORCE

water. Compare Jetsam. See Dkift-stuff; For that. Introduces a positive allega-
' Wreck: . tion. For that whereas introduces a recital.
FLOWERS. See Laeceny ; Pekish ABLE ; For use. A, "for use, etc.," for the ben-
FOAL. See Partus. efit of some other, the assignor. See Use, 3.
FOEDAL. See Feud. For whom it may concern. In an in-
FCEDUS. See Federal; Confedera- surance policy, for all persons who may have
tion. an insurable interest. See further Auction;
FCEIfUS IfAUTICUM. L. Marine in- Concern.
terest. FORBEARANCE. Suspension of an
Sometimes designates a loan of money to be em- existing demand, i
ployed in an adventure by sea, upon condition to be Delay in enforcing a right.
repaid witli extraordinary interest, in case the voyage
is safely performed.* See Instjrance, Marine. In statutes against usury, giving additional
FffiTIOIDE. See Homicide. time, after the time originally limited for the
F0LI0.2 1. A leaf. return of a loan has passed. 2
References to old law-books are by the folio, instead An agreement to forbear bringing a suit for a debt
ot the page. See A, 1, par. 2. due, although for an indefinite time, and even although
2. A certain number of words, established it cannot be construed to be an agreement for perpet-
ual forbearance if followed by actual forbearance for
by usage or law, as a unit of measurement
a reasonable 'time, is a good consideration for a prom-
for estimating the length of a document. ise.^ See Consideration, 2; Surety.
Originated in some estimate of the number of words FORCE. < Compai-e Vigor; Vis.
that a folio ought to contain.
The number has varied, in different jurisdictions, Strength; power.
from seventy-two, to ninety, and one hundred. 1. Strength applied or exerted ; power in
By the act of February 26, 1853, § 3, a folio is one action or motion ; active power ; compulsion ;
hundred words, counting each figure a word." resistance; also, unlawful violence, — vio-
FOLLOW. See Prosecute; Prosequi; lence, q. V.
Pursue; Suit. Actual force. Force applied in point of
Follow copy. See Telegraph. fact. Lnplied force. Force inferred from
Follow a fimd or property. See Iden- the doing of an unlawful act. See Battery ;
tity, 3. Case, 3; Kidnaping; Rape; Robbery.
Follows the person. See Property, Enforce. To constrain, or compel; to
Personal. give effect to: as, to enforce an order of
FOOT. See Possessio, Pedis. court; Congress may enforce constitutional
Foot-way. See Bridge ; Sidewalk. prohibitions by appropriate legislation; to
FOR. 1. On account of, by reason of, be- enforce a contract.
cause of; in behalf of; as agent for.* See Power to enforce the collection of a fine implies-
Agent. power to give a receipt which will discharge the
3. May mean " during," Civil (3).
Enforcement Act of 1870. See Right, 3,
As, in Neb. code, § 947, which requires public notice
of the time and place of the sale of realty upon exe- party.*
cution to be given " for at least thirty days " before Force and arms. Charges violence in
the day of sale, by advertisement in some newspaper. declarations and indictments for trespasses ;
One publication thirty days before the sale would not,
therefore, be sufficient.* as, in trespass for entering a close." See
Hand, 3; Trespass.
For account. See Concern. >.%,
For collection. Sfee Collection, 3. Force and fear. Is ground for' annulling
For cause. See Cause, 3. a contract, when the fear would affect a
mind of ordinary firmness. See Duress.
> [2 Bl. Com. 4B8.
" L. in folio: folium^ a leaf, sheet.
» 10 St. L. 168: E. S. § 828. See Amy v. Shelby ' Goodman v. Simonds, 20 How. 370 (1857), cases.
County, 1 Flip. 104 (1B72); Cavender v. Ca vender, 3 ' [Dry Dock Bank v. American Life Ins., &c. Co., 3
McCrary, 384(1882); Jerman v. Stewart, 12 F. E. 275 N. Y. 355 (1850).
(1883); 38 Mich. 639. ' Howe V. Taggart, 133 Mass. 287 (1882), cases.
* Strong V. Sun Mut. Ins. Co., 31 N. T. 105 (1865). * F. force; L. fortis, strong, powerful.
'Lawson v. Gibson, 18 Neb. 139 (1885). See also » People V. Charisterson, 59 111. 158 (1871).
Whitaker v. Beach, 12 Kan. 493 (1874); 16 Ohio, 663. •2 Chitty, PI. 846, 850; 2 Steph. Com. !S6i; 4 id. 372.
 FORECLOSURE 467 FOREMAN

Force to force. Resistance to unlawful Foreclosure takes place where a mortgagor has for-
violence, — allowed to the extent of the vio- feited his estate by non-payment of money due upon
the mortgage, but still retains his equity of redemp-
lence. See Assault; Battery; Defense, 1. tion. In that case, the mortgagee may file a bill of
Irresistible force. Human agency in foreclosure to compel the debtor to redeem his
its nature and power absolutely uncontrolla- estate presently (as, within six months), or, in default,
to be forever closed or barred from the right. This is
ble, i See Accident; Act, 1, Of God; Car- known as strict foreclosure. In Indiana, Kentucky,
rier, Common; Enemy, Public.
Maryland, New York, South Carolina, Tennessee, Vir-
roreed; forcible; forcibly. (1) Against giniai and other States, the mortgagee obtains a de-
the will or consent : as, a forcible abduction, cree for a sale of the land, the proceeds to be applied
dispossession, entry and detainer, sale, qq. v. to satisfying incumbrances in the order of their pri-
(2) Against the will and under express pro-
test : as, a forced payment, q. v. A suit to foreclose a mortgage, not seeking a per-
ority.'
sonal judgment, is essentially a proceeding in rem.'
" Forcibly " doing an act is merely doing the act See Mortgage; Redemption.
with force."
** Violently " may not be equivalent to " by force,"
3. Also applied to the suit by a pledgee to
in an indictment for rape.* extinguish the pledgor's right to redeem the
All civil injuries are either without force or vio-
lence, as in cases of slander and breach of contract;
personalty, after default made ; and to pro-
or else are coupled with force and violence, as iu cases
ceedings to collect charges or liens upon
of battery and false imprisonment.* other specific property, as, a foreclosure of a
The government of the United States may, by mechanic's lien.
means of physical force, exerted through its official FOREIGN.' 1. That which belongs or
agents, execute on every foot of American soil the
powers and functions that belong to it. This power pertains to another country, nation, or sov-
does not derogate from a State the right to execute ereigntyor
; to another State, or division of a
Its laws at the same time and place. The one does
not exclude the other, except where both cannot be State.*
As, foreign or a foreign — administrator,
exercised at the same time; then the Federal author- allegiance, assignment, attachment, charity,
ity prevails.* See War. coin, commerce or trade, corporation, county,
(3) Arrived at by violence done to lan- court, creditor, decree, divorce, document,
guage; strained; unnatural: as, a forced domicil, exchange or bill of exchange, factor,
construction, q. v.
judgment or sentence, law, min-
3. Power to persuade or convince, or im- guardian, ister, patent, port, vessel, voyage, qq. v.
pose an obligation ; legal effect or operation ;
binding effect ; validity ; efficacy. See Void. Foreigner. A citizen or subject of an-
other country or nation ; an aUen, q. v.
By force of. By virtue of ; by reason of; A naturalized citizen is no longer a foreigner.'
in consequence of." ' See Bankkdptcy; Citizenship; Copykight; Pat-
FORECLOSITEE. A closing up, shut- ent, 3.
3. Irrelevant; impertinent; extrinsic; not
ting out,' barring, preclusion.
1. Specifically, the extinguishment of a germane : as, matter or testimony foreign to
mortgagor's equity of redemption beyond the issue. Compai-eTheAuunde ; DEHORS.
FOEEMAU . presiding member of
possibility of recall.'
A mortgage is foreclosed in the sense that a jury, grand or petit.
From the persons summoned and accepted as
no one has the right to redeem it, or to call
grand jurors, the court appoints the foreman, who
the mortgagee to account under it. 8 oaths to witnesses." The first
has power to administer
In no sense can the term be applied to a mortgage
until sale of the property has been effected.' iSee Hatch v. White, 2 Gall. 164 (1814), Story, J.;
' Story, Bailra. § 25.
Sprague v. Martin, 29 Minn. 229 (1882); Du Val v. John-
' United States v. Bachelder, 2 GaU. 19 (1814), Stoiy, J. son, 39 Ark. 188 (1883); 44 Ohio St. 875; 4 Kent, 180; 2
See 115 Mass. B63. Washburn, E. P. 261, note; Williams, K. P. 409; Daniel,
= State V. Blake, 39 Me. 324 (1855). Ch. Pr. 1204.
< 3 Bl. Com. 118. a Martin v. Pond, 30 F. R. 18 (1887), cases.
» Exp. Siebold, 100 U. S. 395 (1879), Bradley, J. 'T.fmain, alien, strange: L. foras, out of doors,
• Fischer v. Hope, &c. Ins. Co., 40 N. T. Super. 399 abroad.
(1876). < See Cherokee Nation v. Georgia, 5 Pet. *56 (1831).
' [2 Bl. Com. 159. » Spratt V. Spratt, 1 Pet. *349 (1838).
» Puffer V. Clark, 7 Allen, 86 (1863), Hoar, J. »[R. S. § 809; United States v. Plumer, 8 Clift. 71
• Duncan v. Cobb, 32 Minn. 464 (1884). (1867).
 FOREST 468 FORFEIT

person drawn and accepted upon a petit jury becomes illegal act or negligence in the owner of
its foreman. A jury speaks througli its foreman. , lands, tenements, or hereditaments, whereby
FOREST. Forests were waste grounds, he loses all his interest therein, and they go
belonging to the king, replenished with to the party injured, as a recompense for the
beasts of chase, which are under his protec- wrong which either he alone or the public
tion. • together with himself has sustained, i
For the preservation of the king's game there were Forfeitures were called bo'na confiscata by the ci-
particular laws, privileges, courts, and offices helong- vilians, because they belonged to the fiscus or imperial
ing to the king's forests. Part of the king's ordinary treasury; and now, by us, foris facta, that is, such,
revenue consisted of fines levied for offenses against whereof the property is gone away or departed from
the forest laws.' See Game, 1. the owner. 2 Compare Confiscate.
FOREST AIiLIlfGr. Buying or contract- Forfeitures of estates were for breaches of the con-
ing for merchandise or victual on its way to dition that the tenant should not do any act incompat-
market; dissuading persons from bringing ible with the estate.'
their goods or provisions there ; or persuad- A penalty by which one loses his rights
ing them to enhance the price when there : and interest in his property.*
Property rights are forfeitable: by commission of
any of which practices makes the market
crime; by alienation contrary to law fas, in mortmain,
dear to the fair dealer.' to an alien); by non-perfoi^ianoe of a condition; by
So described in statute 5 and 6 Edw. VI (1552), c. 14.
waste; and by bankruptcy.^
At common law, such practices were an offense Goods and chattels were totally forfeited by con-
against publip trade; otherwise, since 7 and 8 Vict. viction of treason, misprision of treason, felony, petit
(1844) c. 24. Compare Engross, 2; Monopoly; Ee- larceny, flight upon charge of treason, etc.*
GBATING.
In theory, the guilty person wholly abandoned his
FOREVER. Compare Permanent. connection with society.'
Used of the location of a county seat, may mean At common law, a forfeiture transferred title to the
luitil changed by law.s sovereign. In a statute, may mean that the State by '
In a conveyance, was held not to impart inheritable indictment shall recover a sum to be levied of the per-
quality. ^ son's property as a "fine." ^
FORFEIT.5 1. To divest or to suffer di- " Forfeiture " has frequently been spoken of as
vestiture ofproperty, without compensation, equivalent to conveyance or grant.*
Forfeitures are not favored. They are often the
in consequence of a default or offense. 3. To means of oppression and injustice. Hence, the courts
pay money as a mulct, or for a default or are prompt to seize upon any circumstances that in-
wrong. dicate an election to waive a forfeiture; as, the course
To take away all right from one person of action of an insurance company. Where adequate
compensation can be made, the law in many cases,
and transfer it to another.' and equity in all cases, discharges the forfeiture, upon
In a contract -that a party shall " forfeit " a speci-
such compensation being made.',"
fied sum on a breach, equivalent to " penalty." ^ Equity never lends its aid to enforce a forfeiture or
Forfeitable. Admitting of divestiture or
loss by way of punishment or for neglect ; A clause of forfeiture in a law is construed differ-
penalty."
ently from a similar clause in an engagement between
opposed to non-forfeitable: as, a forfeit-
individuals. A legislature always imposes a forfeiture
able or non-forfeitable policy of insurance.
Forfeiture. Lands or goods whereof the ' 2 Bl. Com. 207.
property is gone away or departed from the ' 1 Bl. Com. 299. See 1 Kent, 67; 1 Story, 134; 13 Pet.
owner.' 157.S2B1. Com. 153.
A punishment annexed by law to some
* Gosselink v. Campbell, 4 Iowa, 300 (1856).
1 1 Bl. Com. 289; 2 id. 38, 414-16; 3 id. 78; 4 id. 413, » See 2 Bl. Com. 267; 20 How. Pr. 370.
420, 423, 433, 437. 8 2 Bl. Com. 431.
a [4 Bl. Com. 158; 10 PhUa. 361. '3B1. Com. 299; 4 id. 381.
' Casey v. Hamed, 6 Iowa, 14 (1857); 1 La. An. 315. 8 Commonwealth v. Avery, 14 Bush, 638 (1879).
• Dennis v. Wilson, 107 Mass. 693 (1871), cases. » Wallach v. Van Eiswick, 92 U. S. 211 (1875), cases.
'F. forfait, a crime punishable by fine, a, fine: Strong, J.
L. L. foris-facere, to trespass, lit, " to do beyond: " '"Knickerbocker Life Ins. Co. ii. Norton, 96 U. S. 239,
foris, out of doors, abroad, beyond; /acere, to do,— 242 (1877), cases, Bradley, J. ; Ins. Co. v. Eggleston, ib.
Skeat; 1 Bl. Com. 299. 577 (1877); Olmstead v. Farmers' Mut. Fire Ins. Co., 60
• [Walter v. Smith, 5 B. & Aid. 167 (1822), Best, J. Mich. 306 (1883).
' Taylor v. The Marcella, 1 Woods, 304(1873;; 17 Barb. " Marshall v. Vicksburgh, 15 Wall. 149 (1872), cases;
260; 15 Abb. Pr. 273. McCormick v. Epssi, 70 Cal. 474 (1886); Manhattan Life
6 [1 Bl. Com. 399. Xns. Co. V. Smith, 44 Ohio St. 167 (1886).
 469 FORGE
FORGE

as a punishtnent inflicted for a violation of some duty The fraudulent making of a false writing,
enjoined bylaw; whereas individuals can only make which, if genuine, would be apparently of
it a matter of contract. ^
Provisions for forfeiture are regarded with disfavor some legal efficacy, i
and construed with strictness — when applied to con- May be committed as to any writing,
tracts, and the forfeiture relates to a matter admittiuK which, if genuine, would operate as the
of compensation or restoration; but there is no lean- foundation of another man's liability, or the
ing against a forfeiture intended to secure the con- evidence of his right.^
struction ofpublic works where compensation cannot
be made for the default, nor where the forfeiture is Imports a false making (which includes
imposed by positive law.' every alteration of or addition to a true in-
Where an act woi-ks a forfeiture of goods, the gov- strument)— a making malo animo, of any
ernment may at once seize them.^ Where an abso- written instrument for the purpose of fraud
lute forfeiture is the penalty, title accrues in the gov-
ernment when the penal act is committed. But where and deceit: with intent to deceive.'
the forfeiture is in the alternative (property, or its In general terms, forgery is the false making or
material alteration of, or addition to, a written instru-
value), title does not vest till an election is made.'
ment for the purpose of fraud and deceit. It may be —
"Where property is seized for condemnation for for- the making of a false writing purporting to be that of
feiture, some notification of the proceedings, beyond
another; the alteration in some material particular of
the mere seizure, may be necessary.*
Failure to pay a premium of life insurance (g. i;.) a genuine instrument by a change of its words or fig-
at the time specified involves an absolute forfeiture, ures; the addition of some mjiterial provision to an in-
for which, unless waived by the company, relief can- strument otherwise genuine; the appending of a gen-
not be had." See War. uine signature to an instrument for which it was not
intended. The false writing may purport to be the
Forfeitures for common-law offenses have been
instrument of a person or firm existing or fictitious;
generally abolished.
See Attainder; Bond; Charter, 2; Condition; or of a person having the same name as the accused.
As a rule, it must purport to be the writing of another
Dowek; Felony; Land, Public; Pardon; Penalty;
Becognizance; Search-warrant. than the person who made it.'
May be committed by making a note in the name
FORGE.' 1. A mechanical contrivance
of a fictitious person, in an assumed name, or in the
by which iron is made or manufactured from name of a bank which does not, exist. It is not neces-
the ore. sary that the note be one which, if genuine, would be a
But a blacksmith's forge is not a " forge or furnace valid and binding obligation. It is sufficient that the
for manufacturing iron." ^ instrument purports to be good. To relieve from the
3. To make in the likeness of something character of forgery, the want of validity must appear
else. 9 Compare Fabricate. paper itself.*
upon the face of thewhether the forgery is committed
It is immaterial
Forgqr. A person guilty of forgery. by means of printing, stamping, an engraved plate, or
by writing with a pen." ^
Forgery. At common law, the fraudu-
lent making or alteration of a writing to the 1 2 Bishop, Cr. L. §§ 624, 523, note.
2 3 Greenl. Ev. § 103, cases.
prejudic e ofis another man's right, i"
" The word taken metaphorically from the smith, sRex V. Coogan, 2 East, P. C. 862-53 (1803): Com-
who beateth upon his anvil and forgeth what fashion monwealth V.Ayer, 3 Cush. 152 (1840); Gamer v. State,
iand shape he will." ^* 5 Lea, 215 (1880); Stateu McKiernan, 17 Nev. 228 (1E82).
In common speech, also, the altered instrument 'Commonwealth v. Baldwin, 11 Gray, 198 (1868),
itself. Thomas, J.
» United States v. Turner, 7 Pet. *1U (1833); United
> Maryland v. Baltimore, &c. B. Co., 3 How. 652 (1845), States V. Mitchell, Baldw. 366 (1831); 11 F. E. 55.
Taney, C. J. • Benson v. McMahon, 127 U. S. 467-71 (1888), cases.
= Famesworth v. Minnesota, &c. E. Co., 92 U. S. 68 Benson, by falsely representing himself in the City of
(1875), Field, J. ; 2 Story, Eq. § 1326. Mexico as Marcus Meyer, agent for Henry E. Abbey,
'Henderson's Spirits, 14 WaU. 56 (1871), cases; under whom Adelina Pat ti was to appear at the Teatro
Thatcher's Spirits, 103 U. S. 682 (1880). Nacional, in December, 1886, sold 825,000 to $30,000
* The Mary Celeste, 8 Low. 356 (1874), cases. worth of tickets of admission. In February, 1888, Ben-
» Windsor v. McVeigh, 93 U. S. 274 (1876). son was arrested in the city of New York, and com-
«New York Life Ins. Co. v. Statham, 93 U. S. 24, 30 mitted for his return to Mexico, in accordance with the
v.
(1876): 100 Pa. 180. As to flre insurance, see Smith extradition treaty of 1801, the circuit court having
re-
St. Paul Fire & Mar. Ins. Co., 3 Dak. T. 80 (1882). fused to release him upon a writ of habeas corpus.
■•F. forge: I,, fabrica, a, workshop; faber, a work- "About the only contest" made by him before the
man, smith: fa-, to make. Supreme Court was that the tickets were not forgeries,
» [Rogers v. Danforth, 9 N. J. E. 296 (1853). mainly because the name of Mr. Abbey, who was rep-
» State V. McKenzie, 42 Me. 394 (1856). resented as having authorized their issue and sale, was
not " in writing," i. <;., made in script, by the use of a
i»4 Bl. Com. 247; L. E., 1 C. C. E. '*203.
" 3 Coke, Inst. 169.
pen. 16.464-65.
 FORM
FORGE
470

The crime is generally defined to be " the fraudu- and that by an immediate or sufficiently early notice
lent making or alteration of a writing to the prejudice he enables the party to whom he paid it to Indemnify
of another man's rights." The intent to defraud is its himself as far as possible. The doctrine is favored
essence. There must be a possibility of some person that even negligence in making the mistake is no bar
being defrauded. Where the effect, if successful, to a recovery.!
•would be to defraud a particular person, he should- be See Alter, 2; Counteepeit; Faith, Good; Gbkit-
named in the indictment, if known; if otherwise, a ink; Mistake; Oblioation, 2; Obdeb.
general allegation of the intent should be made. The FORGIVE. See Condone; Merctj
question of intent is for the jury; but such intent, to Pardon.
"be proved, must be alleged. The nature of the offense FORGOTTEN- PROPERTY. See
is a species of false pretenses or fraud; hence the im- Find, 1.
portance of setting forth the intent, and the name of
the person, if known.' FORM. 1. Established method of ex-
It is sufdcient if the forgery would have the effect pression or practice ; a fixed way of proceed-
bf defrauding a particular person. A person may not
fraudulently sign his own name (in this case to a ing. Compare Course, 3.
money -order) although identical with the name of the 3. The model of an instrument or legal
person who should have signed.' proceeding ; a formula.^ See Blanks.
Forgery of a bill or note is by counterfeiting a sig- Opposed to substance. That without which
nature, or by filling up a paper with a genuine signa- the right sufficiently appears to the court is
ture, so as to make it appear to be signed as maker, or
indorser, or other party.3 ' ' form. " Whatever Is wanting or imperfect,
"False, forged, and counterfeit," in the act of by reason whereof the right appears not, is a
February 25, 1862 (12 St. L. 347), necessarily implies defect of substance.'
that the instrument so characterized is not genuine, Matter of form is whatever relates, not to the pur-
but only purports to be, or is in the similitude of, such pose or object of an instrument, or to a right involved
instrument.* in, or affected by, it, but merely to the language or
"False or forged," applied to an instrument in expression, without affecting the issue presented, the
wiitiQg, means that the instrument is coimterfeit or evidence requisite, the right of a party, or a step nec-
essary in furtherance of legal proceedings.
not genuine, — that'some one has attempted to imitate
another's personal act, and, by means of such imita- Formal. Belonging or essential to the
Jaon, to cheat and defraud.* form or frame of a thing; not of the sub-
To falsely make an affidavit is one thing; to make a
false affidavit is another. It is the false making that stance :as, a formal defect or irregularity, a
is forgery." formal party, q. v. ; also, according to regu-
Making and uttering an instrument as agent, under lar method of procedure. Opposed, substan-
a false assumption of authority, is not forgery.* tial, real. See Demurrer.
In charging forgery, the variance or the omission
Form of action. The peculiar technical
of a letter, to be material, must change the word at-
tempted tobe written into another word having a dif- mode of framing the writ and pleadings ap-
ferent meaning. The rigor of the old English law in propriate tothe particular injury which the
this respect was due to the barbarous punishments im- action is intended to redress.*
posed. The insertion or omission of a word or words
Forms of action. The classes into which
will not create a variance unless the sense is thereby
actions at lavr are divided. Distinguishable,
altered. Illustrations of harmless changes are: *' to
H. C. P. or order," " B. A. or bearer," " pay to bearer," by peculiarities in the writs and pleadings,
"undertood" for understood, "Fayelville" for Fay- at common law, as account, annuity, assump-
etville, "Jna." for Jno.' sit, covenant, debt, detinue, ejectment, re-
Money paid under a mistake of fact can be recov-
ered. Hence, where one pays money on forged paper plevin, trespass on the case ; in some juris-
by discounting "or cashing it, he can always recover it, '2 Daniel, Neg, Inst., 2 ed., § 1369, cases; Collins v.
provided : that he has not himself contributed materi-
ally to the mistake by his own fault or negligence; Gilbert, 91 U. S. 754 (1876), cases; Franks. Lanier, 91
N. T. 116 (1883), cases.
See also 4 Wash. 726; 66 6a. 53; 19 Iowa, 299; 29 id.
I State V. Gavigan, 36 Kan. 326 (1887), Horton, C. J. 493, 495; 62 id. 68; 2 Me. 363; 60 id. 409; 3 Gray, 441; 114
a United States v. Long, 30 F. E. 679 (1887). Mass. 318 ; 16 Minn. 473 ; 46 N. H. 267 ; 1 Wend. 200 ; 9 id.
» 2 Daniel, Neg. Inst., 2 ed., § 1314; 11 Gratt. 822. 141; 17 id. 229; 91 N. Y. 113; 15 Ohio, 721; 1 Ohio St.
, 4 United States v. Howell, 11 Wall. 482, 437 (1870). 187; 2 Binn. 629; 3 Phila. 351; 32 Pa. 529; 89 id. 432; 37
» State V. Wilson, 28 Minn. 64 (1881), Mitchell, J.; Tex. 692; 2 Bish. Cr. L. § 495, 2 Cr. Pr. § 398; 3 Chitty,
State V. Young, 46 N. H. 270 (1865); Mann v. People, 15 Cr. L. 1032; 2 Whart. Cr. L. § 1418; 2 Arch. Cr. Pr. 797;
Hun, 166 (1878), cases; State v. MoKiernan, 17 Nev. 228 4 Cr. L. Mag. 545, 865.
;1882), cases. ' See Webster's Diet.
« United States v. Cameron, 3 Dak. T. 140 (1882). ' [Heard v. Baskerville, 1 Hob. *233; 109 U. S. 274.
' People V. Phillips, 70 Cal. 64-66 (1886), cases. * Broom, Com. Law, 118 (m).
 FORMA 471 FORTE ET DURE

dictions are or have also been included, in- FORMER. See Acquittal; Adjudica-
junction, mandamus, scire facias. tion; Conviction; Recovery.
In Kansas there is but one form of action, called a FORNICATION.i Illicit carnal inter-
civil action. The plaintiff, for cause of action, states
course by an unmarried person with a person
the actual facts, mthout common-law forms or
fictions.^ of the opposite sex. 2
lu Pennsylvania, by an act approved May 25, 1887 Sexual intercourse between a man, mar-
<P. L. 271), the forms of action are assumpsit^ to which ried or single, and an unmarried woman, as
the plea of the general issue is " non assumpsit," with to the unmarried party.'
the privilege of pleading payment, set off, and the niicit carnal connection is called by differentnames,
statute of limitation ; and trespass, in which the only according to the circumstances which attend it. Un-
plea is *' not guilty." accompanied with any facts which tend to aggravate
Where the common-law forms have been abolished,
it, it is " simple fornication." When it causes the
the principles governing them at common law are fre-
birth of an illegitimate child, it is " fornication and
quently invoked.
Where the formal distinctions between actions are bastardy." When the person who commits it is mar-
ried, it is " adultery." When the parties are related
abolished, the declaration states the facts which con- within certain degrees of consanguinity or affinity, it
stitute the cause of action. . . When the facts are
becomes " incest." Where it is preceded by fraud-
plainly and distinctly stated, the action will be re- ulent arts (including a promise of marriage) to gain
garded as either in tort or in contract; having regard, the consent of the female, who is under the age of
first, to the character of the remedy such facts indi-
cate; and, second, to the most complete and ample consent, and of good repute, it is "seduction." But
the body of all these offenses is the illicit intercourse;
redress which, upon the facts stated, the law can af- in, each case, the essential fact which constitutes the
ford." See Action, 2; Conk. crime is fornication. On an indictment for any of-
Form of the statute. The provision or fense, below the grade of felony, of which illicit con-
enactment, the prohibition or direction, of a nection forms an essential part, the defendant may
statute. be found guilty of fornication.*
In a few States, fornication is not punishable by
Against the form of the statute. A tech- statute.
nical phrase used in an indictment for a stat- To charge another with fornication is actionable
utory offense; the "conclusion against the per se.' See Slander.
See Adultebt; Bad, 1; Bawd; MEBBTBicions;
statute." Polygamy; Pbostitution, 2.
'* Against the form of the statute in such case made
and provided " is the usual expression, but any equiv- FORNIX. L. Fornication.
alent expression will be sufHcient — any phrase which Originally, a vault, an aroh, — a brothel.
shows that the offense charged is founded on some Fornix et csetera. Fornication and the
statute.' rest : fornication and bastardy, qq. v.
Formality. Established order or method, FORO. See Forum.
rule of proceeding or expression. Opposed, FORSWEAR. To swear falsely.
informality.* Does not necessarily import perjury, g. v. One
Compare Eefobm; Unifobji. See Mamneb; Sub- may swear to what is not true before an ofQcer not
stance; Technical.
FORMA. L. Form ; formality ; character. qualified to administer an oath.*
FORT. Implies something more than a
Occurs in the phrases in forma pauperis, and pro
forma, qq. v. mere military camp, post, or station ; a forti-
fication or a place protected from attack by
Formaliter. In form ; formally.
some such means as a moat, wall, stockade,
FORMEDOM". A writ which lay for a
person who, being interested in an estate- or parapet."' See Land, Public.
FORTE BT DURE. See Peine.
tail, was liable fo be defeated of his right by
a discontinuance of the estate.
* From fornix, q. v.
He claimed per formam doni. It was in the re-
mainder, reverter, or descender. Abolished by 3 and ■' [Montana v. Whitcomb, 1 Monta. 362 (1871), Wade,
Chief Justice.
4Wm. rv (1834), 0.37. »
= Hood V. State, 66 Ind. 271 (1877), Perkins, C. J. See
> St. Louis, &c. E. Co. V. Chenault, 36 Kan. 65 (1886); also 3 Monta. 54; 51 Wis. 461 ; 4 Bl. Com. 65.
Losch V. Pickett, ib. 232 (1887); Kansas, &c. E. Co. v. •Dmkey v. Commonwealth, 17 Pa. 129-30 (1851),
Bice, ib. 599 (1887): Civ. Code, 1 10. Black, 0. J.
» New Orleans, &c. E. Co. v. Hurst, 36 Miss. 667 (1859); ' Page V. Merwin, 64 Conn. 434 (1886).
eulf, &c. E. Co. V. Levy, 59 Tex. 548 (1883). « See Heard, Libel & SI. §S 16, 34; 1 Johns. 605; 2 id.
" United States v. Smith, 2 Mas. 160 (1820), Story, J. 10; 13 id. 48, 80: 12 Mass. 496; 2 Har. & J. (Md.) 363.
*16S. &E. MIS. ' United States v. Tiohenor, 8 Saw. 163 (1883), Deady,
•See 2 Bl. Com. 193; 3 id. 191.
J.; s. c. 12 F. E. 424.
 FORTHCOMING 472 FRANCE

FORTHCOMING. Describes a bond Forum domicilii. The court of one's

given to a sheriff, conditioned that property domicil, q. v.
seized by him shall be produced or forthcom- Forum rei. 1. The feourt of the defend-
ing when lawfully required.i ant — of the place where he resides.
Also said of a person released on bail, q. v. 2. The court of the thing — of the locality
FORTHWITH. Has a relative mean- where a thing in controversy is or is found.
ing, and will imply a longer or a shorter Forum rei gestae. The court of the thing
period, according to the nature of the ihing done — at the place of the transaction.
to be done. 2 Forum rei sitce. The court of the place
1. Immediately; without delay ; directly.' where a thing is situated. See Place, 1 ; Res.
3. Within reasonable time; with conven- Forum seculare. A secular court.
ient celerity ; with reasonable diligence.^ FORWARDER. A person who receives
Witli due diligence, under the circumstances.^ and transports merchandise at his own ex-
As soon as, by reasonable exertion con£jied to the
pense of time and money, in consideration of
'Object, an act may be done."
In some matters of practice, within twenty-four
a compensation paid him by the owner or
hours.' consignee; and who has no concern in the
See Imuediatelt; Instasteb; Possible; Time, Rea- means of transportation, nor any interest in
sonable.
FORTUITOUS. Resulting from chance, the freight ; a " forwarding merchant." i
He is a warehouseman and agent for a compensa-
or unavoidable cause ; casual; inevitable : as, tion to forward goods.^
a fortuitous colhsion or event.^ See Acci- An agreement " to forward " goods may still amoimt
dent. to a contract for carrying. ^ See Carrier, Common.
FOSSIL. See Mineeal.
FORTUNE-TELLUfG. See Witch-
CEAPT. FOUND. See Find ; Office ; Teovbb.
FORTY DAYS. See Quarantine, 1. FOUR. Has no technical meaning.
FORUM. The place where court weis Four corners. All parts ; the whole.
Take by the four comers: construe an instrument
held in cities of the Roman empire ; the place
where redress is to be sought; place of juris- as Four a whole.'seas. The waters surrounding Eng-
land.
dictijm'isdiction;
on ; a judicial tribunal, q. v. ;
a court ; the bar of d court. Within the four seas; within her territorial juris-
'From fero^ to lead out of doors: what is outside; an diction.
outside space; a public place, a market place. Com- On_ all-fours. Said of cases precisely
pare Curia; Locus.
alike. See All-fotjes.
Foro. In the court of. Whence foro FOURTEENTH AMENDMENT. See
■cosli, foro conscientim, etc. Citizen.
Forum coeli. The court of heaven.
Forum conscientise. The bar of con- FOURTH OF JULY. See HOLpAT.
science, q.V. FOWL. See Animal; Ceueltt, 3; Dam-
Forum contractus. The court of the age, Feasant ; Nuisance ; Trespass ; Woret,
FOX HUNTING. See Cruelty, 3.
place where a contract is made. FRACTION. See Day.
Forum domesticum. The. home tri- FRAIS. F, Cost, price; expense.
bunal.
Frais jusqu'a bord. Expenses to the
board (vessel) ; free on board.
> See 61 Ga. 520; 11 Gratt. 528. In an invoice of imported goods, excludes cartage
' MoflEat V. Dickson, 3 Col. 314 (1877), Elbert, J. and commLssions paid to the shipping merchant who
•See Inman v. Western Ins. Co., 12 Wend. 460 (1834); receives and places the goods on board ship for ex-
.Whitemore v. Smith, 50 Conn. 379 (1882); Hull v. Mal- portation. Such charges are not dutiable.^ See Free,
lory, 56 Wis. 356 (1882); 22 E. C. L. 527; L. E., 4 Q. B. D. On board.
471.
FRANCE. See Law, Civil; Salic.
■•See Burgess v. Bcetefeur, 7 Mar. & G. *494 (1844);
Bennett v. Lycoming Ins. Co., 67 N. T. 277 (1876), cases;
44 Ohio St. 437. ' See Story, Bailm. § 602, cases.
» Edwards v. Lycoming Ins. Co., 75 Pa. 378 (1874). 2 Bush V. Miller, 13 Barb. 488 (1852); Angell, Car. S iU
" [3 Chitty, Gen. Pr. 112. ' Blossom V. Griffln, 13 N. Y. 575 (1856).
' Champlui v. Champlin, 2 Edw. *329 (N. Y., 1834). ' Bartels v. Eedflelrf, 16 F. E. 337 (1883); ib. 341; Rob-
' See Story, Bailm, S 25. ertson V.Downing, 127 TJ. S. 607 (1888).
 473
FRANCHISE FRANCHISE

PBAITCHISE.i 1. A royal privilege, or exercise the right of eminent domain or corporate

capacity, without authority from the legislature, di-
' branch of the king's prerogative, subsisting rect or derived. ^
in the hands of a subject.^ The word is used as synonymous with privilege and
A special privilege conferred by govern- immunity of a personal character; but in law imports
ment upon individuals, and which does not something which the citizen cannot enjoy without
belong to citizens of the country generally, legislative grant. What members obtain in a relig-
ious, benevolent, or scientiflc association incorporated
of common right.' under general or special laws, is membership."
A generic term covering all rights granted A corporation is itself a franchise belonging to the
to a corporation by the legislature. "Whence members of the corporation, and the corporation, itself
a franchise, may hold other franchises. The different
" corporate franchises." *
A corporate franchise is a legal estate powers of the corporation are franchises, •
The essential properties of corporate existence are
vested in the corporation as soon as it is in quite distinct from the franchises of the corporation.
esse. Not a mere naked power, but a power The franchise of being a corporation belongs to the
coupled with an interest. ^ corporators, while the powers and privileges vested
A privilege conferred by the immediate or in, and to be exercised by, the corporate body as such,
are the franchises of the corporation. The latter has
antecedent legislation of an act of incorpora- no power to dispose of the franchise of its members,
tion, with conditions expressed or necessarily which may survive in the mere fact of coi'porate ex-
inferential from its language, as to the man- istence, after the corporation has parted with all its
ner of its exercise and for its enjoyment.^ property and all its franchises. The franchise to be
To ascertain how it is brought into existence, the a corporation is not a subject of sale and transfer, un-
whole charter must be consulted.* less made so by a statute, which provides a mode for
Generalized, and divested of the special exercising it*
form which it assmnes under a monarchical Often synonymous with rights, privileges, and im-
munities, though of a personal and temporary char-
government based on feudal traditions, a acter; so that, if any one of these exists, it is loosely
franchise is a right, privilege or power of termed a " franchise." But the term must always be
considered in connection with the corporation or
public concern, which ought not to be exer-
property to which it is alleged to appertain. The
cised by private individuals at their mere franchises of a railroad corporation are the rights or
will and pleasure, but should be reserved for privileges which are essential to the operations of the
public control and administration, either by corporation, and without which its road and works
the government or directly, or by public would be of little value; such as the franchise to run
cars, to take tolls, to appropriate earth for the bed of
agents, acting under such conditions and reg- its road, or water for its engines, and the like. These
ulations as the government may impose in are positive rights or privileges without the possession
the public interest, and for the public se- of which the road could not be successfully worked.
But immunity from taxation is not a franchise.''
curity.''
Such rights and powers must exist under every The franchises of a railroad company are in a large
form of society. They are always educed by the laws measure designed to be exercised for the public good,
and customs of the community. Under our system, which exercise is the consideration for granting them.
their existence and disposal are under the legislative The company cannot, therefore, render itself incapa-
department, and they cannot be assumed or exercised ble of performing its duties, or absolve Itself from the-
without legislative authority. Thus, no private person obligation, without the consent of the State.*
can establish a public highway, or a public ferry, or A franchise is property and nothing more ; ^ it is in-
railroad, or charge tolls for the use of the same, or
1 California v. Pacific E. Co., ante.
■ FrSn'-chfa. F. franchise, privileged liberty : franc, ' Board of Trade v. People, 91 111. 82 (1878), cases,
free. Scott, J.
» 2 Bl. Com. 37; 127 U. S. 40. « Pierce v. Emery, 32 N. H. 507 (1866), Perley, C. J.
•Bank of Augusta v. Earle, 13 Pet. 595 (1*39), Taney, * Memphis E. Co. v. Commissioners, 112 U. S. 61*
Chief Justice. (18S4), cases, Matthews, J. ; Willamette Manuf. Co. v.
' Atlantic & Gulf E. Co. v. Georgia, 98 U. S. 865 (1878), Dank of British Columbia, 119 id. 191 (1886).
Strong, J. 'Morgan v. Louisiana, 93 U. S. 223 (1876), cases.
« Dartmouth College d. Woodward, 4 Wheat. 700 (181 9), Field, J.; East Tennessee, &c. E. Co. v. County of
Story.. J. ; Society for Savings v. Coite, 6 Wall. 606 Hamblen, 103 TJ. S. 876-77 (1880), cases; State v. Maine
(1867). See also 3 Kent, 458; 73 111. 547; 45 Mo. 20; 15 Central E. Co., 66 Me. 512 (1877).
Johns. 887. « Thomas v. West Jersey E. Co., 101 U. S. 83-84 (1879),
"Woods V. Lawrence County, 1 Black, 409 (1861), cases, Miller, J.; Balsley v. St. Louis, &c. E. Co., 119
Wayne, J. 111. 72-73 (1886).
' California v. Paciflc R. Co., 127 U. S. 40 (1888), Brad- ' West Elver Bridge Co. v. Dix, 6 How. 631 (1848); 22
ley, J. Cal. 422; 17 Conn. 40; 25 id. 36.
 FRANCHISE 474 FRAUD

corporeal property. As such it is liable for debts and cise of a corporate or political right or privi-
subject to the right of eminent domain.'
The ordinary franchise of a railway company is to
FRANK.a Free.
condemn, take, and use lands for the purpose of a lege.!
public highway, and to take tolls from those who use Frankalmoign. Tenure in consideration
it as such. Land, in itself, is not a franchise. A fran- of religious services (alms).^
chise is an incorporeal hereditament; a liberty pro- Frankpledge. Surety for general good
ceeding from the commonwealth."
A grant of a corporate franchise by an act of legis-
behavior, anciently required of freeborn per-
lation, accepted by the grantee, is a contract between
sons.
the State and the grantee, the obligation of which a Franktenement. A freehold. See Feud.
subsequent legislature cannot impair. > To frank. To send free.
Exclusive rights to public franchises are not fa-
vored; ifgranted they will be protected, but they are
Franking privilege. The liberty of send-
never presvuned.*
ing postal matter through the mails free of
charge.
A corporation cannot dispose of its franchises to
another corporation without legislative authority." Has existed, in theory, for the public good. The
A grant of corporate franchises is necessarily sub- act of January 31, 1873, repealed former laws, from
ject to the condition that the privileges conferred and after July 1, 1873.« The act of March 3, 1875,
shall not be abused, or be employed to defeat the ends sees. 3, 5, 7, permits members of Congress, and cer-
for which they were conferred; and that when abused tain executive officials, to send free, public docu-
or misemployed, they may be withdrawn by proceed- ments (g. i;.), acts of Congress, and seeds supplied by
ings consistent with law. . . A corporation is sub- the commissioner of agriculture.? The acts of March
ject to such reasonable regulations as the legislature 3, 1877, sec. 7, and of March 3, 1879, sec. 1, provide
may from time to time prescribe, as to the general that the privilege shall be enjoyed until the first Mon-
conduct of its affairs, serving only to secure the ends day of Deceniber'following the expiration of the indi-
for which it was created, and not materially interfer- vidual's term of office * — the fourth of March.
ing with the privileges granted to it.« The privilege is also spoken of as the member's
See Bonus; Grant, 3; Mokopolt; Railkoad; Tax, 3; "frank."
Toll, 2; Warrantdm. FRATERNITY. See Association ; Com-
2. In a popular sense, the political rights of munity, 3.
subjects and citizens are called francljises: FRATRICIDE. See Homicide.
as, the electoral franchise — the right of FRAUD.^ Craft, cunning; cheating, im-
sUfErage.7 position, circumvention.
The right of voting for a member to serve in par- An artifice to deceive or injure.'
liament iscalled the "parliamentary franchise; " the An intention to deceive.'
right of voting for an alderman or town councilor,
the " municipal franchise." ^ Defraud. To cheat; to deceive; to de-
Elective franchise. The right of choos- prive of a right by an act of fraud.
ing governmental agents. ' To withhold from another what is justly
Enfranchise. 1. To make free of a city due him, or to deprive him of a right, by de-
or state. 3. To invest with political freedom ception or artifice.!"
and capacity. Fraud, in the Roman civil law, meant any
Dis&anchise. Todeprive of a franchise cunning, deception, or artifice, used to cir-
conferred ; to suspend or withdraw the exer- cumvent, cheat, or deceive another. This
corresponds to "positive fraud" in modern
' 2 Washb. E. P. S4; 1 Eedf. Ey. §§ 1, 4, 10, cases.
' Shamokin Valley E. Co. v. Livermore, 47 Pa. 468
(1864), Agnew, J. law."
' See People v. Medical Society, 24 Barb. 577-78(1857).
s Chincleclamonche Lumber, &c. Co. v. Common- ' r. /i-ojjc, free.
wealth, 100 Pa. 444 (188S); The Binghamton Bridge, 3 s See 2 Bl. Com. 101 ; 2 Kent, 281.
Wall. 51 (1865). « 17 St. L. 481.
< Wright V. Nagle, 101 U. S. 796 (1879). ' 1 Sup. E. S. 154.
• Branch v. Jesup, 106 U. S. 484, 478 (1888). » 1 Sup. E. S. 288, 454.
" Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 680 ' From fraus^ q. v.
<1885), Harlan, J. See also 66 Cal. 106-7; 36 Conn. 866 'Byles, Bills, 133.
47 id. 603; 21 HI. 69; 37 id. 547; 95 id. 575; 30 Kan. 657 ' Lord V. Goddard, 13 How. 211 (1851), Catron, J. On
13 Bush, 185; 28 La. An. 493; 45 Md. 379; 15 N. T. 170 definitions of, see 3 Law Quar. Eev. 419-28 (1887), cases.
37 id. 619; 68 id. 555; 1 Oreg. 37; 39 Tex. 478; 77 Va. 218. •» Burdick v. Post, 12 Barb. 186 (1851) ; People v. Kelley,
' Pierce v. Emery, 32 N. H. 607 (1856), Perley, C. J. 35 id. 452 (1862).
' Mozley & Whiteley's Law Diet. ' ' [1 Story, Eq. § 186. See 2 Steph. Hist. Cr. Law Eng.
' See State v. Staten, 6 Coldw. 265 (1869). 121.
 FRAUD 475 FRAUD .

The common law asserts as a general principle By " constructive frauds " are meant such acts or
that there shall be no definition of fraud.' contracts, as, although not originating in any actual
The courts have never laid down as a general prop- evil design, or contrivance to perpetrate a positive
osition what shall constitute fraud, or any rule, be- fraud or injury upon other persons, are yet, by their
yond which they will not go, lest other means of tendency to deceive or mislead other persons, or to vio-
avoiding equity should be found.^ late private or public confidence, or to impair or injure
In the sense of a court of equity, fraud the public interests, deemed equally reprehensible
with positive fraud, and, therefore, are prohibited by
properly includes all acts, omissions, and law, as within the same reason and mischief, as acts
concealments which involve a bx-each of legal and contracts done malo animo. The doctrine is
or equitable duty, trust, or confidence, justly founded in an anxious desire of the law to apply the
reposed, and are injurious to another, or by principle of preventive justice, so as to shut out the
which an undue and unconscientious advan- inducements to perpetrate a wrong, rather than to
rely on mere remedial justice, after a wrong has been
tage is taken of another.'
Consists in deception practiced, in order to induce committed. 1
An "actual fraud" is something said, done, or
Another to part with property or surrender some legal omitted by a person with the design of perpetrating
right, and which accomplishes the end desired.* what he must have known to be a positive fraud.
Consists in the suppression of the truth — suppres-
" Constructive frauds " are acts, statements, or omis-
■sio veri, or in the assertion of what is false — suggestio sions which operate as virtual frauds on individuals,
falsi. or which, if generally permitted, would be prejudicial
No one can be permitted to say, in respect to his
own statements upon a material matter, that he did to the public welfare, and yet may have been uncon-
nected with any selfish or evil design.*
not expect to be believed; and if they are knowingly
A breach of duty is a constructive fraud.'
false, and willfully made, the fact that they are ma-
terial isproof of an attempted fraud, because their In the sense of bankrupt acts, "a debt fraudulently
contracted by a person occupying a fiduciary rela-
materiality, in the eye of the law, consists in their
tion" involves positive fraud, involving moral turpi-
tendency to influence the conduct of the party who
tude or intentional wrong.*
has an interest in them, and to whom they are ad- Fraud in fact in the transfer of chattels consists in
dressed.' the intention to prevent creditors from recovering
Fraud is sometimes said to consist of " any kind of
their just debts, by an act that withdraws the debtor's
artifice employed by one person to deceive another." property from their reach. And an act that, though
But the term admits of no positive definition, and can- not fraudulently intended, yet has a tendency to de-
not be controlled in its application by fixed rules. It fraud creditors, if it vests the property of the debtor
is to be inferred or not, according to the special cir- in his grantee, is void for legal fraud. Legal fraud is
cumstances of every case.* tantamount to actual fraud. Actual fraud is for the
Actual, positive, moral fraud; fraud, jury ; legal fraud, where the facts are undisputed or
in fact. Fraud as a matter of fact, involv- are ascertained, is for the court.'
ing moral turpitude and intentional wrong. PraudTilent. Infected with fraud, actual
Implied, constructive, legal fraud; or legal; as, a fraudulent — bankruptcy,
fraud in law. Fraud as a conclusion of claim, concealment, conveyance or gift, pos-
law, and may exist without imputation of session, representation, qq. v. Compare Void.
bad faith or immorality.^ When an act charged in an indictment is fraudu-
When a party intentionally misrepresents a mate- lent, itis not necessary to use the word "fraudulent "
rial fact, or produces a false impression, in order to in the indictment itself.*
mislead another, or to entrap or cheat him, or to ob- man, 44 N. J. L. 175 (1883), Depue, J.; 89 Conn. 588,
tain an undue advantage over him, there is a " positive
fraud " in the truest sense. There is an evil act with note.
' 1 Story, Eq. § 268. See People v. KeUy, 35 Barb. 457
an evil intent. And the misrepresentation may be
as well by deeds or acts, as by words; by artifice to (1862).
2 Smith, Manual of Equity, 71.
mislead, as well as by positive assertions." > Baker v. Humphrey, 101 U. S. 602 (1879).
' 2 Pars. Contr. 769. *Neal V. Clark, 95 U. S. 704 (1877); Hennequin v.
» [1 Story, Eq. § 186. Clews, 111 id. 676, 679-81 (1884), cases; Strang v. Brad-
' [1 Story, Eq. § 187. ner, 114 id. 659 (1885).
* Alexander v. Church, 53 Conn. 563 (1885), Park, C. J. , » MoKibbin v. Martin, 64 Pa. 356 (1870), Sharswood, J. ;
quotmg Cooley, Torts, 474; Judd v. Weber, 55 Conn. Hanson v. Eustace, 2 How. 688 (1844).
877 (1887), Loomis J. See generally Bigelow, Law of Fraud, 137, et seq.,
"Claflin V. Commonwealth Ins. Co., 110 IT. S. 95 cases; Willink v. Vanderveer, 1 Barb. 607 (1847); Bir-
(1884), Matthews, J.; 27 Me. 308; 7 Bing. 105; 56 N. H. chell V. Strauss, 28 id. 293 (1858); People v. Kelly, 35 id.
401; 58 id. 245; 3 B. & Ad. 114. 456 (1S62); Vulcan Oil Co. v. Simons, 6 Phila.564 (1868);
• Tenner v. Dickey, 1 Flip. 36 (1861), Wilson, J. 2 Pomeroy, Eq. § 858; 2 Ala. 593; 5 ul. 601; 7 Ark. 171;
' [Neal V. Clark, 95 U. S. 709(1877), Harlan, J. 6 Ga. 614; 47 id. 109; 87 Me. 308; 29 N. H. 354; 3 Den. 836.
« [1 Story, Eq. § 192. See also Ackerman u. Acker- " United States v. Caruthers, 15 F. R. £
 476 FRAUD
FRAUD

Fraudulently. With a deliberately planned without want of care on his part, the bar does not
begin to run until the fraud is discovered, though
purpose and intent to deceive and thereby
gain an unlawful advantage.^ there be no special circumstances or efforts 'in the
guilty party to conceal knowledge. On the question
The ordinary means of fraud are false representa- as it arises in actions at law, there is a decided confiiot
tions an.d concealments. The more numerous is the of authority. Some courts make concealed fraud an
implied or constructive class— which includes all exception on purely equitable principles. The English
frauds on public policy: agreements to influence tes- courts, and the courts of Connecticut, Massachusetts,
tators, tofacilitate or restrain marriages, in restraint Pennsylvania, and other States, hold that the doctrin©
of trade, for public offices, to suppress criminal pro- is equally applicable to cases at law.^ See Ltbi^^ta-
ceedings, champertous and other corrupt considera- TiONs, Statute of.
tions; all frauds by persons in confidential relations:, A court of equity has an undoubted jurisdiction to
as, by a guardian, adviser, minister of religion, attor- relieve against every species of fraud. 1. The fraud,
ney, doctor, agent, trustee, executor, administrator, which is dolus malus^ may be actual, arising from
debtor, creditor, surety; all frauds upon persons pe- facts and circumstances of imposition. 2. It may be
culiarly liable to be imposed upon : as, bargains with apparent from the intrinsic nature and subject of the
expectant heirs, remaindermen, reversioners, common bargaiu itself: such as no man in his senses and not
sailors; and all virtual frauds on individuals irrespect- under delusion would make on the one hand, and as
ive of any confidential relation or liability to imposi- no honest and fair man would accept on the other.
tion: as, forbidden practices at auctions, misuse of the 3. It may be presumed from the circumstances and
Statute of Frauds, clandestine marriages, frauds on condition of the parties contracting,— from weakness
marital rights, frauds under 13 Eliz. c. 5, 96, fraudulent or necessity. 4. It may be inferred from the nature and
dealing with trustees, appointments, etc.* circumstances of the transaction, as being an imposi-
The fraud must relate directly and distinctly to the tion and deceit on persons not parties to the agreement;*
contract, if a contract and must affect its very es- There is no fraud in law without some moral delin-
sence. If the fraud be such that had it not been prac- quency; there is no actual legal fraud which is not
ticed the contract would not have been made, the also a moral fraud. This immoral element consists ih
fraud is Tnaterial. Whether it is or is not material, in the necessary guilty knowledge and consequent intent
a given case, is a question for a jury, possibly under to deceive — sometimes designated by the technical
instructions.^
term the "scienter." The very essence of the legal
The length of time that the intent to defraud pre- conception is the fraudulent intention flowing from,
cedes the act is not mateiial, provided there is the the guilty knowledge. . . There may be actual
relation of design and its consummation. Conceal- fraud in equity without any feature or incident of
ment by mere silence is not enough. There must be
moral culpability. A person making an untrue state-
'some trick or contrivance intended to exclude suspicion ment, without knowing or believing it to be untrue,
and prevent inquiry. There must be reasonable dili- and without any intent to deceive, may be chargeable
gence; and the means of knowledge are the same with actual fraud in equity. . . Forms of fraudu-
thing in effect as knowledge itself. The circumstances lent misrepresentations in equity are: 1. Where a
of the discovery must be fully stated and proved, and party makes a statement which is untrue, and has at
the delay which had occurred shown to be consistent the time actual knowledge of its imtruth. 2. Where
with the requisite diligence.* he makes an untrue statement and has neither knowl-
Fraud binds the injured person, as a cause of ac- edge nor belief as to the truth. 3. Where he makes
tion, only from the time of discovery." an untrue statement and has no, knowledge of the
The bar of the statute of limitations does not begin
truth, and there are no reasonable grounds for his be-
to run until the fraud is discovered. Where ignorance
lieving itto be true. 4. But where he makes a state-
has been produced by affirmative acts of the guilty ment of fact which is untrue, honestly believing it to
party iu concealing the facts, the statute will not bar be true, and this belief is based upon reasonable
relief, provided that suit is brought within proper time grounds which actually exist, there is no fraud. Yet,
after the discovery. Nor is relief barred where the
5, in that case, if he afterward discovers the truth,
party injured has remained in ignorance withoutfault and suffers the other party to continue in error, and
or want of diligence on his part. ^ to act upon the belief that no mistake has been made,
The weight of authority is, that, in equity, where
this, from the time of discovery, becomes a fraudu-
the injured person remains in ignorance of fraud lent representation. 6. If a statement of fact actu-
ally untrue is made by a person who honestly believes
> Bank of Montreal v. Thayer, 2 McCrary, 5 (1881),
it to be tfue, but under such circumstances that the
McCrary, Cir. J.
duty of knowing the truth rests upon him, which, if
2 See 1 Story, Eq. Ch. VI; Smith, Man. Eq. Ch. IV; 2 fulfilled, would have prevented him fi:ora making the
Para. Contr. Ch. XII.
statement, such misrepresentation may be-fraudulent
3 2 Pars. Contr. 770; Bishop, Contr. §§ 641, 652.
* Wood V. Carpenter, -101 U. S. 143, 140 (1879), cases, in equity. 3
Swayne, J. , 1 Tyler v. Angevine, 15 Blatch. 541-42 (1879), cases,
5 Dresser v. Missouri, &c. R. Co., Construction Co., Blatchford, J.
03 U. S. 94-96 (1876), cases. , • 2 Chesterfield v. Janssen, 2 Yes. Sr. *155 (1750), Hard-
« Bailey v. Glover, . 21 Wall. 347-50 (1874), cases, wicke, L. C. Same case, 1 L. C. Eq., 4 Am. ed., 773.
Miller, J. ; Fritschler v. Koehler, 83 Ky. 83 (1885). 3 2 Pomeroy, Equity, §§ 884r-89, cases.
 FRAUD FRAUD
477.
Fraud avoids a contract ab iwiMtf — vitiates all con- oiflo performance; injunction; declaration of trust ex
tracts whether intended to operate against a party, a maleflcio.^ See those titles.
stranger, or the public generally. The guilty party See particularly Caveat, Emptor; Conceal, 5;
cannot allege his own fraud in order to avoid his own Covin; Deceit; Equity; Estoppel; Forgeey; Gcilty;
act; and he may he liable in damages where real in- Identity, 2; iNrLUENOE; Innoobnoe; Insolvency; Mis-
jury is done. The agreement cannot be adopted in take; Ratification; Reform; Eepbesentation, 1;
part: all must be disatBrmed or none.' Rescission; Trust, 1.
Fraud is never presumed. The burden of proving Statute of Frauds. Statute of 29 Charles
it rests upon him who alleges it. It is a question of
fact to be determined from all the circumstances in II (1678), c. 3— "An Act for the Prevention
each case.' of Frauds and- Perjuries."
Allegations of fraud must be specific in time, It object was to prevent the facility to
place, persons, etc., so that the defendant may meet perpetrate frauds and the temptation to com-
the charge, and the court see w^hether ordinary dili- mit perjury, held out by the enforcement of
gence to discover the fraud has been used.''
Being a term which the law applies to certain facts, obligations depending for their evidence upon
where, upon the facts, the law adjudges fraud, it need the unassisted memory of witnesses, by re-
not be expressly alleged.* quiring certain transfers of land and certain
Gross negligence tends to show fraud.' cases of contracts to be reduced to writing
All avenues that facilitate the detection of fraud
are to be kept open and free from bars arid estoppels."
and signed by the parties to be charged there-
The presence of fraud is a fact, the evidence of with, or by their agents thereunto lawfully
which must satisfy an imprejudiced mind beyond a authorized in writing.
reasonable doubt.' Its policy is to impose such requisites upon private
Circumstantial evidence is, in most cases, the only transfers of property, as, without being hinderances
proof that can be adduced.' to fair transactions, may be either totally inconsistent
While the common law affords reasonable protec- with dishonest practices, or tend to multiply the
tion against fraud in dealing, it does not go to the chances of detection.'^
romantic length of giving indemnity against the con- Every day's experience more fully demonstrates
sequences of indolence and folly, or of careless indif- that the statute was founded in wisdom, and abso-
ference to the ordinary and accessible means of lutely necessary to presei-ve the title to real property
knowledge.' from the chances, the uncertainty, and the fraud at-
A court of equity will not grant relief when the tending the admission of parol testimony. When
complainant has a complete, effectual, direct, certain courts of equity have relaxed the rigid requirements
and adequate remedy in a court of common law." of the statute, it has always been for the purpose of
Statutes make many different acts frauds, and pro- hindering the statute, made to prevent frauds, from
vide for punishment by criminal proceedings. Rem- becoming the instrument of fraud.'
edies available at law are: an action on the case in The substance of the statute has been re-enacted in
the nature of a writ of deceit for damages; and an the States; and other points, coming within its gen-
action for money received, by which the tort is waived. eral policy, have been added.*
Bemedies in equity: rescission of the contract; spe- I. As applying to Realty. The statute enacts that
all leases, estates, and interest in lands, made without
writing signed by the parties or their agents lawfully
1 Foreman v. Bigelow, 4 Cliff. 543-49 (1878), cases, authorized in writing, shall have the force and effect
Clifford, J. See also Feltz v. Walker, 49 Conn. 98 (1881),
of estates at will only (sec. 1); except leases not ex-
cases, Carpenter, J. ceeding three years from the making, which reserve
"Eager v. Thompson, 1 Black, 91 (1861); Humes v. at least two-thirds of the improved value of the land
Scruggs, 94 U. S. 28 (1876); 2 Pars. Cont. 784. (sec. 2); and that no lease, estate, or interest shall be
'See Steams v. Page, 7 How. 829 (1849); Moore v. assigned, granted, or surrendered unless by writing
Greene, 19 id. 70 (1856); Badger v. Badger, 2 Wall. 95
signed by the assignor, grantor, etc., or his agent au-
<1864); Ambler v. Choteau, 107 U. S. 691 (1882).
thorized inwriting, except assignments, etc., by opera-
■•Stimson v. Helps, 9 Col. 36 (!885); Kerr, Fraud, &c. tion of law (sec. 3).' See under Fructus.
n. As applying to Equity. Enacts that all declara-
'First Nat. Bank of Carlisle v. Graham, 100 U. S. 702 tions or creations of trusts of land shall be in writing
(1879), cases. signed by the declarant or creator (sec. 7), except trusts
'Pendleton v. Eichey, 32 Pa. 63 (1858); 11 Wfend. 117;
4 Kent, 269. arising b,7 construction of law, or transfen-ed by act of
law (sec. 8); that all grants or assignments of trusts
' Young 1). Edwards, 72 Pa. 267 (1872).
« Rea V. Missouri, 17 Wall. 543 (1873) ; Craig v. Fowler,
59 Iowa, 203 (1882); Moore v. Ullman, 80 Va. 311 (1885), ' See Pasley v. Freeman, 2 Sm. L. C. 93-113, cases.
C£ises. '1 Qreenl. Ev. § 262; 2 Whart. Ev. § 863; 3 Pars.
'2 Kent, 484, oases; Senter v. Senter, 70 Cal. 62^-24 Contr. 3.
(1886), cases. ' Purcell V. Miner, 4 Wall. 517 (1866), Grier, J.
"Green •</. Spaulc'ing, 76 Va. 411, 417 (1882): 1 Story, * Browne, Stat. Fr., Appendix.
Eq. § 33. « 2 Bl. Com. 297: 2 Whart. Ev. §§ 854-68, 883.
 478 FREE
FRAUD

shall also be in writing, signed by the grantor or as- upon the strength of which credit is to be given; and
signor (sec. 9); and that estates pur autre vie may be. as to contracts for the sale of goods, not yet made or
taken in execution for debt, or be deemed assets by llnished, amounting to ten pounds or upward.'
descent for the payment of debts (sec. 10).' FKATJS. L. A cheating; deceit; imposi-
in. As applying to Common Law. Enacts that no tion ;fraud. Compare Dolus.
action shall be brought whereby: (1) To charge an ex- rraus est eelare fraudem. It is a
ecutor or administrator upon any special promise to
fraud to conceal a fraud. Concealment
answer for damages out of his own estate.'^ (2) To
charge the defendant upon any special promise to an- (g. «.) may amount to fraud.
swer for the debt, default, or miscarriage of another. Fraus latet in generalibus. Fraud
See Pbomise, Original; Gdarantt, 2. (3) To charge
lurks in general expressions.
any person upon any agreement made upon consider- Pia &aus. Pious fraud : evasion of law
ation of marriage., See Settlement, Marriage. (4) To
charge any person upon any contract or sale of lands, to advance the interests of a religious insti-
or any interest in or concerning them. See Land. tution. See Mortmain.
(5) To charge any person upon any agreement that is
not to be performed within one year from the maldng FBiBE. Not subject to restraint or con-
thereof,— unless, in each case (1-B), the agreement or
trol; having freedom of will; at liberty;
some note or memorandum thereof is in writing and also, that on which no chai'ge is made. Com-
signed by the party to be charged therewith or by his
pare Frank.
agent thereunto lawfully authorized in writing (sec. 4),^ 1. Liberated from control of parent, guard-
If the performance of the contract depends upon a
contingency which may happen within a year, the ian, or master; SM,i juris: said of a child,
contract need not be in writing. ■ It is sufficient if the ward, apprentice.
possibility of performance exists. ^ 2. Individual; exclusive; privi'eged; in-
(6) That in a contract for the sale of goods, wares, dependent; opposed to common: said of a
or merchandise, for the price of ten poxuids or up- fishery, a warren, and formerly of a City or
ward, the buyer must actually receive and accept
part of the goods, etc., or give something in earnest town, qq. v. See also MUNICIPIUM.
or in part payment, or the parties, or their agents, sign 3. Clear of offense, guiltless, innocent;
some note or memorandum of the bargain (see. 17).» also, released from arrest, liberated: used of
See Earnest; Payment, Part,
(7) That judgments against lands shall bind pur-
persons
ment. acquitted or released from imprisdn-
chasers from the day of signing, and against goods
when the writ of execution is delivered to the sheriff 4. Open to all citizens alike: as, a free
(sees. 14, 15). school, q. V.
(8) Provides for additional solemnities in the execu- 5. Not arbitrary or despotic ; assuring lib-
tion of wills.' See Will, 2, Statute of wills.
The provisions as to the transfer of interests in
erty; defending individual rights against
land, and to promises, which at common law could be encroachment by any person or class : as, a
effected by parol, that is, w^ithout writing, comprise free government, free institutions.^
all that in professional use is meant by the statute.
The theory is that the writing required in any case
6. Certain; honorable; becoming a free-
will secure an exact statement and the best evidence man ;opposed to base : as, free-socage, g. v.
of the terms and conditions of a promise made.' See 7. That for which no charge is made for
Agreement; Parol, Evidence. use ; opposed to toll : as, a free bridge, q. v.
See also Performance, Part; Verbum, Verba illata.
Not gained by purchase: as, free admis-
Statute of 9 Geo. IV (1829), c. 14, called iord! Tenter- sion, free passage.
den's Act, enlarged the application of the Statute of Free on board. In a contract for the sale and
Frauds, by rendering a written memorandum neces-
saiy in cases of a promise : to bar the Statute of Lim- delivery of .goods "free on board " vessel, the seller is
under no obligation to act until the buyer names the
itations; byan aduU to pay a debt contracted during ship to which the delivery is to be made: until he
his infancy; as to a representation of ability in trade,
knows that he could not put the articles on board.^
> 2 Bl. Com. 337, 259; 2 Whart. Ev. § 903. Compare Fbais.
»2 Bl. Com. 46S; 3 Pars. Contr. 19. 8. Neutral: as in saying that "free ships
" 3 Bl. Com. 159; 3 Pars. Contr. 19, 29, 31, 35; 2 Whart.
make free goods."
Ev. §§878-80; Mahan u. United States,/ 16 Wall. 146 Freely. Without constraint, coercion, or
(1872); Becker v. Mason, 30 Kan. 700-2 (1883), cases.
* Stowers «. Hollis, 83 Ky. 648-49 (1886), oases; Doyle compulsion.* See Duress ; "Will, 1.
■a. Dixon, 97 Mass. 811 (1867): 93 Am. Dec. 85-90, cases. ' Smith, Contr. 95; Eeed, St. Frauds.
«2 Bl. Com. 448; 3 Pars. Contr. 39; 2 Whart. Ev. = Webster's Diet.
§ 869; 1 Law Q. Kev. 1-31 (1884); '37 Alb. L. J. 492 (1888). ' Dwight II. Eckert, 117 Pa. 508 (1888), cases.
» 2 Bl. Com. 376, 500, 515; 2 Whart. Ev. §§ 884r-900. 'Dennis v. Tarpenny, 20 Barb. 374 (1855); Meriam
' Browne, Stat. Fr. §316. V. Harsen, 2 Barb. Ch. 269 (1847).
 479
FREE FREIGHT

Freedman. One made free; a manu- Freehold estates are : 1. Of inheritance —

mitted slave. See Citizen, Amendments; (a) absolute, as tenancy in fee-simple ; (6) lim-
Liberty, 1. ited: qualified or base, and conditional —
Freeman. One born or made free as to later, fees-tail. 2. Not of inheritance. These
civil rights. are chattel interests in lands. They are for
In the constitutions of Pennsylvania of 1776 and life, and either conventional or legal; the
1790, " freemen " described citizens who were capable lowest species is the estate for the life of an-
of electing or being elected representatives of the peo-
ple in the Provincial Council or General Assembly. other, i See Condition ; Fee, 1 ; Feud : Shel-
The term with this meaning was brought by William ley's Case.
Penn from England. A freeman is one in possession FREIGHT. Merchandise transported or
of the civil rights enjoyed by the people generally. to be transported ; also, compensation for that
This freedom of civil rights was termed his "free- service.
law," and W£is liable to forfeiture for disloyalty and
infamy. . . The language of the amended constitu- In its widest sense, may include fare, for
tion of 1838 was " white freeman." i it is that " with which anything is fraught
In those constitutions, referring to the right of suf-
or laden for transportation ; " and, by a figure
frage, does not include females."
Freehold. The possession of soil by a of speech, the price paid for the transporta-
freeman. Such estate as requires actual pos- The burden or loading of a ship, or the
session ofthe land. Such estate in lands as tion.2
cargo which she has on board ; likewise, the
is conveyed by livery of seisin, or, in tene-
ments of an incorporeal nature, by what is hire agreed upon between the owner or mas-
ter of a vessel for the carriage of goods from
equivalent thereto ; as, by receipt of rent.3
An estate in real property, of inheritance one port or place to another.'
Goods carried ; and the price to be paid for
or for life ; or, the term by which it is held.^ the carriage, or for the hire of a vessel under
Any estate of inheritance or for life, in
a Charter-party or otherwise.4
real property, whether it be a corporeal or in- Compensation for the carriage of goods.^
corporeal hereditament. 5 In policies of marine insmance, freight means the
Also, the land itself. See Abatement, 1 ; earnings or profit derived by the ship-owner or the
Waste, 1. hirer from the use of the ship himself, or from letting
Freeholder. The actual owner of land. it to others, or from carrying goods for others. Does
not include cargo or goods laden on board, which are
He was originally a suitor of the courts, a insured under the term goods, cargo, merchandise, or
juror, voted for members of parliament, and word of like import; nor profit which the owner of the
could defend his title to land." cargo expects to derive from the transportation."
Such as holds a freehold estate, that is, Afireightment. The contract for the use
lands or tenements, in fee-simple, fee-tail, or of a vessel.
for term of life.^ Dead freigM. Money paid or due for
One who owns land in fee, or for life, or
unoccupied capacity in a vessel.'
for some indeterminate period. The estate The amoimt of freight to be paid rests upon con-
tract expressed in the charter-party or bill of ladmg,
may be legal or equitable.'
One who has title to real estate, irrespective or In implied in law — for a reasonable sum. '
elsetheis absence of a different stipulation, freight is
of the amount or value thereof.' only payable when the merchandise is in readiness
A freeholder whose estate is worth a specified sum,
clear of incumbrances, is, by the law of some localities,
privileged from arrest in civil actions; and he may 1 2 Bl. Com. 120; 80 Va. 844.
not be required to furnish security for the performance 'Pennsylvania R. Co. v. Sly, 65 Pa. 211 (1870), Shars-
of a legal obligation. See further Arkest, 3. wood, J.
s [Brittan v. Bamaby, 21 How. 533 (1858), Wayne, J.
1 McOafferty v. Guyer, 59 Pa. 115-18 (1868), Agnew, J. • [Lord V. Neptune Ins. Co., 10 Gray, 112 (1857), Shaw,
» Bumham i;. Lnnlng, 9 Phila. 841 (1871). 0. J. See also 1 Mas. 18; 3 id. 344; 1 Sprague, 819; 1
' [2 Bl. Com. 104, 809. Ware, 138; 13 East, 335; L.B., 7 C. P. 348.
* Gage V. Scales, 100 lU. 821 (1881), Craig, C. J. » Palmer v. Grade, 4 Wash. 123 (1821).
•4 Kent, 24. « [Minturn v. Warren Ins. Co., 8 Allen, 91 (1861), Big-
«2 Bl. Com. 120. elow, C. J.
' Bradford v. State, 15 Ind. 353 (1860): Jacob. ' See Gray v. Carr, L. B., 6 Q. B. *528 (1871); Phillips
8 State V. Eagland, 75 N. 0. 13 (1876), Rodman, J. V. Eodie, 15 East, 264 (1812).
• [People V. Scott, 8 Hun, 567 (1876), Talcott, J. 8 Palmer v. Gracie, 4 Wash. 123 (1881).
 FRENCH 480 FRIVOLOUS

to be delivered to the person having the right to re- FREQUElfT, V. A single visit to a
ceive it.i
Freight pro rata itineris not being earned where,
place, or once passing through a street, can-
from necessity, cargo is accepted before arrival at the not be said to be a "frequenting " that place
port of destination, in a case of average, there can be
or street.
no contribution on it.^ May be used in contradistinction to " found," which
Freighter. He who loads a vessel, under applies to the case of a person apprehended in a build-
ing or inclosed ground, where the necessary inference
■a contract of hire or of affreightment. ^ would be that the purpose was unlawful, in which case
The ship-owners undertake that they will carry the it would be enough to show that the party was in the.
^oods to the place of destination, unless prevented by
the dangers of the seas, or other unavoidabte casualty ; place only once.^
and the freighter undertakes that, if the goods be de- Webster's definition- " visiting often, resorting to
livered at the place of destination, he will pay the often or habitually," expresses the popular under-
stipulated freight. . If the ship be disabled from standing. What amounts to " frequenting " a street
completing her voyage, the owner may still entitle must depend upon circumstances.*
FRESH. See Suit, 1.
himself to the whole freight by forwarding the goods
•by some other means to their destination; but he has FRESHET. See Act, 1, Of God; Bed,
-no right to any freight if they be not so forwarded, 2; Watee-couese.
unless the forwarding be dispensed with, or there be a FRIDAY, GOOD. See Houdat.
mew bargain made. If the ship-owner will not forward
i^em, the freighter is entitled to them without paying
FRIEND. Compare Ami; Amicus.
anything. The general property in the goods is in the One favorably disposed to another person.
freighter; the ship-owner has no right to withhold the Friend of the cotirt. A disinterested
possession from him, unless he has either earned his
by-stander who furnishes information to the
freight or is going on to earn it.*
See Average; Charter, 1, Party; Commerce; Dis- judge trying a cause, or to a court, on a mat-
patch; Frais; Insurance, Marine; Lading, Bill of; ter of law or fact of which notice may be
Restitutio; Seaworthy. taken without proof. Usually, a member
FRENCH. Law-French, which is used of the bar of the court. ' See Amicus, Curiae.
in old law-books and legal proceedings, ex- Next friend. One who acts for another
hibits many terms and idioms not employed who is not sui juris: a representative for
in classic French. the special office of carrying on a suit in
Under William the Norman and his sons, all the court.
public proceedings of the courts, including arguments An infant sues by his "next friend," and defends
and decisions, were expressed in Norman law-French. by his guardian ad litem. Similarly, a married
In the thirty-sixth year of Edward III (1363), it was en- woman, who has an interest which conflicts with the
acted that all pleas should be shown, answered, de- interest of her husband, may sue him by her " next
bated, and judged in the English tongue, but be entered friend " — any acquaintance. The next friend may
and enrolled in Latin, which, being a dead language, be held for the costs of unsuccessful litigation; and
was immutable. However, the practitioners and re- he may be required to file his authority to appear. ^
porters continued to take notes in the customary law- FRIVOLOUS. Is applied to an answer,
French. This law-French differs as much from modern
French as the diction of Chaucer differs from the dic- plea, or objection which upon its face is
tion of Addison. English and Norman being concur- clearly insufficient in law, and apparently
rently used for several centuries, the two idioms made for purposes of delay or to embarrass
assimilated and borrowed from each other.= an adversary.
" The constitution of the aula regis, and the judges An answer is frivolous when it controverts no ma-
themselves, were fetched from Normandy; in conse- terial allegation in the complaint, and presents no
quence, proceedings in the king's courts were carried tenable defense; * when it sets up a matter which may
on in Norman." " be true in fact, but forms no defense. A sham or false
Norman-French, as employed about the courts, answer may be good in form, but false in fact.= See
was often intermixed with scraps of Latin and pure Sham.
English.' See Latin. To constitute a pleading frivolous, it must be ap-

1 Brittain v. Bamaby, 21 How. 533 (1858). 1 Clark V. The Queen, 14 Q. B. D. 98 (1884), Grove, J.;
' Thd Joseph Farwell, 31 F. E. 844 (1887). Vagrant Act, 5 Geo. IV (1835), c. 83.
! See 3 Kent, 173; 3 Johns. 105. 'Ibid. 101-2, Hawkins, J.
' Hunter v. Prinsep, 10 East, 394(1808), EUenborough, s See 3 Bl. Com. 300- Herzberg v. Sachse, 60 Md. 438
(1883).
C. J. Approved, The Tornado, 108 U. S.' 347, 349 (1883),
Blatchf ord, J. *LefEerts v. Snediker, 1 Abb. Pr. o. s. 48 (1854);
5 [3 Bl. Com. 317-18.] Brown v. Jennison, 3 Sandf. L. T32 (1851); Lerdall v.
« 4 Bl. Com. 416. Charter Oak Ins. Co., 51 Wis. 430 (1881): 7 id. 383.
■= 8 Hume, Hist. En^. 115. ' People V, Mc(3umber, J8 N. T. 321 (1858).
 FROM FUGITIVE
481

parent on mere inspection, without examination or parol. But if the owner of the fee, by a conveyance
research, that it is utterly invalid.' in writing, sells these natural products ot the earth,
When it needs argument to prove that an answer or which grow spontaneously without cultivation, to be
demurrer is frivolous, it is not frivolous. ' taken from the land, or sells the land reserving them
A pleading seen to be frivolous, upon bare inspec- to be cut and removed by himself, the law regards
tion, will be stricken off by the court.' this action as equivalent to an actual severance.' See
PROM. Compare After ; At ; To. Caop; Emblements; Fruit.
1. Is taken inclusively according to the subject- Pructus legis. The fruit of the law —
matter; as, in a grant of power to construct a railroad execution.
"from" a place.*
" From " a street may mean from any part of the
Pructu^ pendentes. Hanging fruits.
street; not, necessarily, from its inner or nearest Pructus stantes. Standing fruits; fruits
line.'
united to the thing which produces them.
" From the city " was held to mean from any point See Usus, Fructus.
within the city." PBUIT. Increase; profit; product; en-
2. In computing time " from " a day, the rule is to
exclude that day.' See Day. joyment.
Natural fruits. The natural product of
3. Descent " from " a parent means by act of the
parent.* See Descent. trees, bushes, and other plants. Artificial
4. An indictment that charges stealing com " in " fruits. Such things as interest on money,
the field may be fatally defective under a statute which loaned or due.
makes stealing '• from " a field a felony." Figurative expressions are: fruits of crime; that
FBUCTtrS. L. Fruit, fruits ; increase ; execution is the fruit of a judgment.
profit. SeeFauoTDs; Emblements; Larceny; Perishable.
Fructus industriales. Cultivated fruits. PTJGITIVE. Used only in the sense of
Pructus industriae. Fruit of labor, or in- a "fugitive from justice:" a person who
dustry emblements,
; the products of plant- commits a crime within a State, and with-
ing and cultivation. Pructus natuxales. draws himself from its jurisdiction without
Nature's growths; natural fruits: increase waiting to abide the consequences of his act.2
Acts of limitation of criminal prosecution do not
by the unassisted powers of nature ; as, the
fruits of uncultivated trees, the young of apply to persons " fleeing from justice." '
animals, and wool. " Fleeing from justice " (act of 1790) is, leaving one's
home or residence or known place of abode, with in-
Although the cases are not uniform, there is abun- tent to avoid detection or punishment for some public
dant authority for holding that crops, such as com,
offense against the United States. An offender may
wheat, rye, potatoes, and the like, called fructua in- flee by secreting himself, or by not being usually and
dustriales, are regarded as the representatives of the
publicly known as being withinState the district.*
labor and expense bestowed upon them, and as chat- " A Person charged in any with Treason, Fel-
tels, while yet growing; and, hence, as such, go to the
executor, may be seized upon execution as chattels, ony, or other Crime, who shall flee from Justice," etc.,
are the words of the Constitution relating to extradi-
and be sold or bargained by parol; while growing
tion of offenders.'
grass and trees and the fruit on them, called /ruc*i«
There must be an actual fleeing. " Who shall flee "
naturales, are a part of the soil of which they are the does not include a person who was never in the place
natural growth, descend with it to the heir, and, until
from which he is said to have fled.'
severed, cannot be seized upon execution, and, imder Defendant may plead either specially or generally;
the statute of frauds, cannot be sold or conveyed by
if specially, the government may reply " He fled," etc.
1 Cahoon v. Wisconsin K. Co., 10 Wis. *293 (1860), Defendant may not demur.' See at length Extradi-
«ases.
' Cottrill V. Cramer, 40 Wis. 659 (18T6), Ryan, C. J.
' Taylor v. Nyce, 3 W. N. C. 433 (Pa., 1877). 1 Kimball v. Sattley, 56 Vt. 291 (1883), cases, Teazey,
* Union Pacific E. Co. u Hall, 91 U. S. 348 (1875), J.; ib. 540; 118 Mass. 125; 40 Md. 218.
■cases.
' [Be Voorhees, 32 N. J. L. 160 (1867), Beasley, C. J.
e City of Pittsburgh v. Cluley, 74 Pa. 261 (1873). » See Act of 1790, § 3?: E. S. § 1043; Act of 1804, § 3:
• Appeal of West Penn. E. Co., 99 Pa. 161 (1881). See B. S. S 1046.
also 33 Me. 67; 53 id. 252; 7 Allen, 487; 7 Barb. 416; 9 « United States v. O'Brian, 3 DUl. 383 (1874), DUlon,
Wend. 346; 3 Head, 696; 2 Mas. 137. Cir. J.
' Sheets v. Selden, 2 Wall. 190 (1864); Best v. Polk, 18 ' Constitution, Art. FV, sec. 2, cl. 2.
id. 119 (1873). See also 19 Conn. 376 ; 52 Ga. 844 ; 24 Ind. 'Jones V. Leonard, 50 Iowa, 108 (1878). See also
194; 13 B. Men. 460; 13 Me. 198; 9 N. H. 304; 24 Barb. 9; United States v. Smith, 4 Day, 126 (1809); United States
9 Cranch, 104; 1 Gall. 248. V White, 5 Cranch, C. C. 44 (1836).
'Gardner v. Collins, 2 Pet. *91 (1829); Case v. Wild- 'United States v. Cook, 17 WaU. 168 (1872); United
Jidge, 4 Ind. 54 (1853). States V. Norton, 91 U. S. 666 (1875); 3 Crim. Law Mag.
» State V. Shuler, 19 S. C. 140 (1883).
787-810 (1882), cases on points of practice.
(31)
 483
FULFILL FUNDAMENTAL

PULriLL. See Perfobm. was a debt for the payment of the principal
FULL. Not wanting in any essential or interest of which some fund was approjiri-
quality; complete; entire; whole; perfect;
adequate. Funding. Has been applied to the process of
ated.i
collecting together a variety of outstanding debts
Full age. The age of twenty-one years ;
against corporations, the principal of which was pay-
majority. See Age. able at short periods, and borrowing money upon the
Full blood. Whole blood. See Blood. bonds or stocks of the corporation to pay them off;
Full court. All the members of a court the principal of such bonds or stocks being made pay-
Bitting together. able at periods comparatively remote. The word is
never used to describe an ordinary debt growing out
Full defense. A general defense. See of a transaction with an individual and represented
Defense, 3.
by a, single instrument.!
Full faith, and credit. Entire confi- Fundholder. A person to whose custody
dence and efficacy. See further Faith, Full. money is committed, or into whose care trust
Full price. A price which is fair or rea- funds come. Compare Stakeholder.
sonable. See Price. Wo funds. No resources or assets, as
Full proof. Proof to the exclusion of a
reasonable doubt. See Proof. when it is said that a trustee has " no funds ; "
also no money on deposit to one's credit, as
Fully. See Administer, 4. when a draft drawn upon a bank is returned
In full. 1. Completed, filled up, not
"no funds."
blank ; as, an indorsement {q. v.) which names If a formal demand is made, during banking hoius,
the indorsee. by the holder of a note, at the bank where it is pay-
2. For all that is due, and not on account : able, and there are no funds, it is the duty of the bank
as, a receipt in full, satisfaction in full, qq. v. to say that there are "no funds; " and there is then a
breach of the contract on the part of the maker, and
FUNCTUS. See Ofpicium, Functus, etc. notice thereof would bind the indorsers. There is na
FUND; FUNDS.i A deposit of re- necessity for a personal demand upon the maker else-
sourcesstock
; or capital ; money invested for where. But if no such demand is made, and the note
is only sent or placed in the bank for collection, then
a specific object ; revenue : as, the fund of a the maker has till the close of business hours to make
bank, or of a trust. - payment. Sending a note through the clearing-house
" Funds," as employed in commercial trans- is not a formal demand for immediate payment made
actions, usually signifies money.s during business hours, but is equivalent to leaving the
note at the bank for collection from the maker on or
A " fund " is merely a name for a collec-
before the close of banking hours.'^ See Assignment,
tion or an appropriation of money.*
Equitable.
"While the restricted meaning of "funds" Public funds. The stock of a public
is cash on hand, the broader meaning includes
debt ; securities of government.^
property of evei-y kind, when such property
is specially contemplated as something to be Sinking "fund. Money, arising from
particular taxes or duties, appropriated to-
used or applied in the payment of debts.
ward the payment of the principal and inter-
Thus, for example, as employed in a statute,
est of a public loan.*
may comj)rehend all the resources of a cor- See Identity, 2; Marshal, 8.
FUNDAMENTAL. See Constitution.
poration.'
Current funds. Current money; cur- Alterations m a charter which are not "funda-
rency, q.V. mental," and are authorized by the legislature, may
be effectually accepted by a majority of the stock-
Funded debt. The term "fund" was
holders — a majority pei- capita or of the shares voted,
originally applied to a portion of the national as the case may require. Alterations which actually
revenues set apart or pledged to the payment
of a particular debt. And a " funded debt " ' Ketchum v. City of Buffalo, 14 N. Y: 307, 3
Selden, J.
1 F. fondy tb merchant's stock: L. fundus, bottom. 2 Nat. Exchange Bank v. Nat. Bank of North Amer-
Whence "fundamental." ica, 138 Mass. 148 (1883).
" See Webster's Diet. s See 1 Bl. Com. 331.
3 Galena Ins. Co. v. Kupfer, 28 Dl. 335 (1868). See 91 4 See Ketchum v. City of Buffalo, 14 N. Y. 367 (1866);
N. T. 65; 24 N. J. E. 368. Union Pacific E. Co. v. Buffalo County, 9 Neb. 463
■•People V. N. Y. Central E. Co., 34 Barb. 135 (1861). (1880); Bank for Savings v. Mayor of New York, 103
' Miller V. Bradish, 69 Iowa, 880 (1886), Seevers, J. N. Y. 313, 385 (1886).
 FUNERAL 483 FUTURE

change the nature and purposes of the corporation, Furniture of a ship. Includes every-
or ol the enterprise for the prosecution of which it was
thing with which a ship requires to be fur-
created, are "fundamental."'
FUNERAL. See Bueial. nished or equipped to make her seaworthy.i
See Appurtenance.
" Funeral expenses" may include the cost of car-
riage-hire, vault, and tombstone, besides the cost of FURS. See Perishable.
shroud, coffin, grave, etc.^ FURTHER. Additional: as, further —
But not, charges for dinner and horse-feed furnished assurance, compensation, proof, qq. v. ; also,
to persons attending the funeral. See Executor.'
subsequent or later: as, a further hearing,
, FURNITURE. That -which furnishes,
or with which anything is furnished or sup- " Any further tax," used with relation to some other
plied. Whatever may be supplied to a house, tax,
q. V. must mean any additional tax besides that re-
a room, or the like, to make it habitable, ferred to, and not any further like tax."
convenient, or agreeable. Goods, vessels, FUTURE. That which may or will be
utensils and other appendages, necessary or hereafter : as,' future — advances, damage,
convenient for housekeeping. Whatever is earnings, estate, qq. v. See also Devise, Ex-
added to the interior of a house or apartment ecutory; Expectancy; Remainder; Sale;
Time ; Use, 3.
for use or convenience.''
Relates, ordinarily, to movable personal chattels; Futures. The expression "dealing in futures"
but is very general, in meaning and application, and has grown out of those purely speculative transactions
the meaning changes, so as to take the color of, or to in which there is a nominal contract of sale for future
accord with, the subject to which it is applied.^ delivery, but where in fact none is ever intended or
Household fiirniture. Those vessels, executed. The nominal seller does not have or expect
to have the stock or merchandise he purports to sell,
utensils, or goods, which, not becoming fixt- nor does the nominal buyer expect to receive it or to
ures, are designed, in their manufacture,
pay the price. Instead, a purcentage or " margin " is
originally and chiefly for use in the family, paid, which is increased or diminished as the market
as instruments of the household and for con- rates go up or down, and accounted for to the buyer.
This is simply speculation and gambling; mere wager-
ducting and managing household afl'airs. ing on prices within a given time.' ,
Does not include a trunk or a cabinet bpx.'
Embraces everything about a house that has been "One person says: I %\'ill sell you cotton (for ex-
aipple) at a certain time in the future for a certain
usually enjoyed therewith, including plate, linen, price. You agree to pay that price, knowing that he
chma, and pictm-es.' has no cotton to deliver at the time, but with the un-
A bequest of household furniture ordinai'il.y com- derstanding that, when the time for delivery arrives,
prises everything that contributes to the convenience you are to pay him the difference between the market
of the householder or to the ornament of the house.
value of the cotton and the price you agreed to pay, if
Does not include the furniture of a school-room in a cotton declines, and, if it advances, he is to pay you
boarding-school.* the difference between what you promised to give and
As used in a bequest, includes bronzes, statuary,
and pictures placed In various parts of the house to the advanced market }irice." *
There is no gambling unless both sides gamble ; and
render it more agreeable as a place of residence, if from the intent or belief of one party it is not fair to
comporting with the testator's means and the general presume a like intent or belief as to the other party. ^
style of furnishing the house.^ See Contained; Im- See further Wagek, 2.
plements.
21; 13 E. I. 20; 30 Vt. 224; 2 Munf. 234; 5 id. 272; 18Wis.
' Mower v. Staples, 33 ilinn. 2S6 (1884), cases. Berry, 103; 1 Ves. Sr. 97; 1 Jarman, Wills, 501, 596, note; 2
Judge. Williams, Ex. 1017.
"Donald v. McWhorter, 44 >nss. 29 (1870); Matter of ' Weaver v. The S. G. Owens, 1 Wall. Jr. 369, 359
Lnckey, 4 Eedf . 95 (1879); 14 S. & R. 64. (1849), Grier, J.
2 ShaefEer v. ShaefEer, 54 Md. 683 1 1S80). See, in gen- ' Gordon v. Appeal Tax Court, 3 How. 147 (181.5).
eral, McClellan v. Filson, 44 Ohio St. 188-89 (1886), cases. 2 Kmg V. Quidnick Company, 11 R. I. 138 (1883), Sti-
* Bell V. Goldmg, 37 Ind. 179 (1866), Ray, C. J. See ness, J. See also Hatch v. Douglas, 48 Conn. 137 (1880),
also Grossman v. Baldwin, 49 Conn. 491 (1883). Carpenter, J.
« [Fore V. Hibbard, 68 Ala. 413 (1879), Manning, J. < Cunningham v. Nat. Bank of Augusta, 71 Ga. 403
« Towns V. Pratt, 33 N. H. 350 (1856), Sawyer, J, (1883), cases, Blantord, J. ; Mutual Life Ins. Co. v. Wat-
' Endicott v. Endicott, 41 N. J. E. 96 (1886); M'Micken son, 30 F. R. 6,53 (1887).
V. M'Micken University, 2 Am. Law Reg. 489 (1863); 2 5 Bangs V. Hornicb, 30 F. R. 98 (1887), cases. See gen-
Jarm. Wills, 353; 63 N. H. 295. erally Marshall v. Thurston, 3 Lea, 740 (1879), cases;
*Hoopes's Appeal, 60 Pa. 227 (1869), cases, Shars- Bartlett v. Smith, 13 F. R. 203 (1883); Irwin v. Millar,
wood, J. 110 U. S. 499, 508-11 (1884), cases; Kirkpatrick v. Adams,
9 Richardson v. Hall, 124 Mass. 237 (1878), Colt, J. See 20 F. R. 387, 293 (1884); Beadles v. McElrath, Sup. Ct.
also 33 Me. 635; 14 Mich. 506; 1 Johns. Ch. 329, 1 Robt. Ky. (1887); 3 S. W. Rep. 153, note.
 484 GAME
G

G. any kind for purposes of gambling, is an in-

dictable offense at common law.i
G. In a few words, originally beginning Qambling 'policy. A policy of life in-
with u or w, prefixed to the form which surance issued to a person who has no pecun-
comes through the French, as, in guard for iary interest in the life insured. 2
ward ; in law-French, equivalent to our to. See further Game, 3 ; House, 1.
Whence, also, the doublets gage and wage, guar- GAME. 1. "Wild animals pursued for
anty and warranty, guardian and ward, garnish and amusement or profit. In its most compre-
warn; also seen in warden, warren, and award.* hensive sense includes beasts, birds or fowl,
G. S. General statutes. and fishes.
GAGE. See G; Mortgage.
Game laws. Statutes regulating the tak- '
GAIN". See Bet; Earnings; Income; ing or killing of animals of a wild nature.
Lucrum; Profit.
Another designation is Oame and Fish Laws.
GALLON. The gallon of our commerce See Fish, 1.
conforms to the old wine-measure of two Game laws are designed to preserve insectivorous
hundred and thirty-one cubic inches.^ birds,, and the breeds of fowl and quadrupeds valuable
GALLOWS.3 A beam laid over and to man for food and for sport. The details of these
fastened to one or two posts, from which a regulations must be sought for in the statutes of the
several States.' See Pbopebty, Qualified.
criminal, condemned to death, is suspended.
In English law, a " chase " Is the liberty of keeping
See Death, Penalty. beasts of chase or royal game in an uninclosed space,
GAMBLE. To play a game of chance or protected even from the owner of the land, with right
skill for stakes, or to bet on the result of the to hunt them thereon. A *' park " is an inclosed chase,
game; to game or play for money. extending over a man's own grounds. A " forest," in
the hands of a subject, is the same as a chase. At
Gambler. One who follows or practices common law, it was once unlawful to kill beasts of
games of chance or skill with the expecta- park or chase, except as to such persons as possessed
tion and purpose of thereby winning money one of these franchises.*
In 1831 the law was modified to enable any one to
or other property.*
obtain a license to kill game, on the payment of a fee.*
Common gambler. Applied to a person See Cruelty, 3; Wakeen.
who furnishes facilities for gambling, — one Game; games; gaming; gambling.
who, for gambling purposes, keeps or exhib- A device or play the terms of which are that
its any gambling table, establishment, device the winner shall receive something of value
or apparatus. 5 from the loser. , The act of playing a game
Gambling. Anything which induces for stakes.
men to risk their money or property without "Gaming," without the prefix "unlawful," seema
other hope of return than to get for nothing usually to imply something of an unlawful nature, by
a given amount from another person.* betting on the sport. " Persons may play at a game
which is not in itself unlawful, without gaming; but if
Crambling device. An invention to deter-
mine who wins and who loses among those money is staked it becomes gaming." *
that risk their money on a contest or chance "Gaming" is the risking of money, be-
tween two or more persons, on a contest or
of any kind.' chance of any kind, where one must be the
Qambling house. Keeping a structure of
loser, and the other the gainer.'
'See Ayers v. Kndley, 1 Pa. 501 (1845), Gibson, C. J.; Imjilies something which in its nature de-
Webster's Diet. ' People V. Sponsler, ante; 8 Whart. Cr. Law,
" Duty on Ale, &c., 16 Op. Att.-Gen. 359 (1879); E. S.
S 2504, Sch. D. = Gambs v. Covenant Life Ins. Co., 50 Mo. 47 (1872).
§ 1466.
" Gal'-lus. Mid. Eng. galwes, pi. of A. S. galga, cross, » See 19 Kan. 187; 128 Mass. 410; 7 Mo. Ap. 663; 60
gibbet. N. Y. 10; 95 U. S. 465; L. E. 2 C. P. 653.
<2B1. Com. 33, 416.
* Buckley v. O'Niel, 113 Mass. 193 (1873), Ames, J.
•People V. Sponsler, 1 Dak. 291-95 (1876), cases. 'See Appleton's New Am. Cyo, VIII; Wharton^
'Brua's Appeal, 55 Pa. 296 (1867), oases; Smith v. Law Diet.
Bouvier, 70 id. 325 (1872); 14 Bush, 741; 49 Mich. 387; • Bishop, Stat. Crimes, § 860, quoting Campbell, C.
73 E. C. L. 525. J., in Eegina v. Ashton, 16 E. L. & E. 346 (1882). See
' [Portis V. State, 27 Ark. 362 (1872); State v. Bryant, Ansley v. State, 36 Ark. 67 (1880) ; Be Lee Tong, 18 F. E
253 (1883).
Mo. Sup. Ct. (1887): 2 S. W. Eep. 836; 2 Whart. Or. L;
' Portis V. State, 27 Ark. 362 (1872), Bennett, J. ,
§1465. •
 GAME GANANICAL
485

jends upon chance, or in which chance is an when they are of the nature of gaming and embody
its evils. . . Base-ball and horse-races are games,
(lement.i
and any "pooling" scheme in betting thereon is
"Gaming "is an offense against the public police gaming, and the place where the pools are sold is a
)r economy. It tends to promote idleness, theft, and
lebauchery among those of the lower class; and pooling room or place.'
The means or device for either gaming or gambling
unong persons of a superior rank it has frequently
Qeen attended with the sudden ruin and desolation of may be — backgammon, 2 bagatelle,' billiards,' candy
families, and an abandoned prostitution of every prin- prize-packages," cards," cock-flghting,' dog-flghts,"
faro," gift-enterprises'" (g. v.), horse-racing," keno,"
ciple of honor and virtue, and often has ended in self-
murder itself.* loto," poker or draw-poker,'< pool,'" raffle with dice,"
Playing at a game of chance for mere recreation is rondo," stocks," tan, tantan," ten-pins.'"
A discharge will not be granted to an insolvent
lawful.' debtor who has spent property in gaming: his is
" Illegal gaming " implies gain and loss between the
fraudulent insolvency." Property so acquired is an
parties by betting, such eis would excite a spirit of
asset, which may not be spent in gaming; and the
cupidity.*
A "game of chance " is such a game as is deter- mode of acquisition cannot be inquired into.'''
mined entirely or in part by lot or mere luck, and in Money lost by gaming is not recoverable."
Statutes which allow gaming are to be strictly con-
which judgment, practice, skill, adroitness, and hon-
esty have no oflBce at all, or are thwarted by chance.
In a " game of skill " nothing is left to chance.' See Bet; License, 3; Lottery; Morals; Or, 2;Pool-
strued.'*
iNG^rABLE; Speculation; Stakeholder; Wageb, 2.
A " gaming table " is any table kept and used for
playing games of chance. It ueed not be necessary to GANANICAL. "Gananical property,"
the game, nor made in any particular way." in Spanish law, is the community of gains,
" Gaming " implies games. " To game " is to play acquisitions, profits, made during marriage
at any sport or diversion ; to play for a stake or prize ;
to use cards, dice, billiards, or any other instrument out of the property of either husband or wife
according to certain rules with a view to win money
or of both.25
or any other thing waged upon the issue of the con- ' People V. WeithofE, ante.
test; to practice playing for money or any other
stake; to gamble. " Game " embraces every contriv- a 22 Gratt. 23.
' 55 Ala. 198'.
ance or institution intended to furnish sport, recrea- < 22 Ala. 64; 49 id. 37; 40 HI. 294; 15Ind. 474; 50 id.
tion, or amusement. \STien a stake is laid upon the
181; 60 id. 457; 75 id. 586; 39 Iowa, 42; 41 id. 550; 34
chances, the game becomes "gaming." "Games" Miss. 606; 8 Cow. 139; 28 How. Pr. 247; 17 Ohio St. 82.
become unlawful by being prohibited by statute.' » 3 Heisk. 488.
• 36 Ark. 67.
In common usage, "betting" and "gaming" are
employed interchangeably ; yet not always so. If two ' 8 Mete. 232; 11 id. 79; 1 Humph. 486; 4 Sneed, 614;
persons play at cards for money, they are said to be 3 Keb. 465; 3 Camp. 140.
gambling or gaming. They are gambling because 8 1 Carr. & P. 613.
they lay a wager or make a bet on the result of • 4 Cranch, 0. C. 707, 719; 5 id. 378, 390; 63 Cal. 846.
the game. To say that they are betting is equally '" 5 Sneed, 507; 3 Heisk. 488.
appropriate. If two persons lay a wager upon the "23 Ark. 726; 30 id. 428; 9 Col. 214; 4 Harr., Del., 554;
result of a pending election, it will be said that they 69 Ga. 609; 23 111. 493; 61 id. 184, 473; 9 Ind. 35; 1 AUen,
are betting, not gaming. There is no gaming in which
563; Bl Mich. 218; 18 Me. 337; 16 Minn. 299; 4 Mo. 636,
the element of the wager is wanting, but there is
B99J 31 id. 36; 1 N. M. 621; 13 Johns. 88; 8 Gratt. 592;
betting which the term gaming does not commonly L. B., 6 Q. B. 514, 130.
embrace. It is so common to apply gaming or gam- " 48
'« 182; 27 Ark. 355, 360; 7 La. An. 651.
Ala.722.
1 Mo.
bling to any species of immoral betting that the pre-
cise meaning intended in a given case can be learned '* 8 Monta. 437; 33 Gratt. 884.
only from the connection. The terms are often ap- 1" 39 Mo. 420; 51 Mich. 203, 214; 120 Mass. 273; 8 Lea,
plied to transactions which are illegal in the sense
only of being immoral, but which involve the element 411; L. E., 6 Q. B. 514. 71; 5Eand.652; 14 Gray, 26, 390;
"26 Ala. 155; 15 Ark.
of wager, as in the case of option conti-acts. But 21" Tex. 692. 259.
while such contracts are probably not gaming in the 15 Ark.
'8 70 Pa. 325.
sense of any criminal law, there could be nothing to
prevent their being legislated against under that head, "70 Cal. 616; 18F. E. 253. .
1 Bew V. Harston, L. E., 3 Q. B. 456 (1878), Cookburn, '" 29 Ala. 38; 32 N. J. L. 158; 11 Ired. L. 273. See gen-
C. J. See also Bell v. State, 5 Sneed, 509 (1858). eral y 2Whart. Cr. L. § 1466; Cooley, Const. Lim. 749;
"431. Com. 171.
29 Me. 457; 8 Gray, 488; 38 N. H. 426.
' 4 Chitty, Bl. Com. 171. siE.S.§§ 5132, 5110.
' People V. Sergeant, 8 Cow. 141 (1828). " Be Marshall, 1 Low. 462 (1870).
" 2 Bish. Cr. L. § 507.
•State V. Gupton, 8 Ired. L. 873 (1848), Euffln, C. J.
• Toney d. State, 61 Ala. 3 (1878) ; Whitney v. State, 10 " Alcardi v. Alabama, 19 WaU 639 (1873).
Tex. Ap. 377 (1881); Walz v. State, 33 Tex. 335 (1870). !i [Cutter V. Waddingham, 22 Mo. 256, 255 (1855),
' People V. Weithofl, 51 Mich. 303, 210 (1883), Cooley, J. Leonard, J.
 GAOL 486 GAZETTE

" The right to gananicas is founded in the partner- The ofac^ of a garnishment is to apply the debt due
■Bhip ■which is supposed to exist between husband and by a third person to the defendant in a judgment to
wife, because, she bringing her fortione in dofe, gift the extinguishment of that judgment, or to appropri-
and paraphernalia, and he his in the estate and prop- ate effects belonging to a defendant in the hands of a
erty which he possesses, it is directed that the gains, third person to its payment.'
which result from the joint employment of this mass, There must be a debt due from the garnishee to
be equally divided." i the defendant in the judgment, payable at the time of
That property which husband and wife, living to- the service of the writ, or to become payable. The
..gether, acquire during matrimony by a common title, debt must be at least a cause of action. "
lucrative or onerous; or that acquired by either or The person warned becomes a mere stakeholder,
Iboth, by purchase or industry; also, the fruits of the with a right to such defense against the new claimant
separate property which each brings to the matri- as he has against the judgment-debtor. The proceed-
mony or acquires by lucrative title during the contin- ing is substantially an attachment, q. v. It arrests
uance of the partnership. The gain is common to the property in the hands of the garnishee, interferes
both. 2 with the owner's or cf editor's control over it, subjects
GAOL. See Jail. it to the judgment of the court, and thus operates as
a seizure. It is effected by serving notice as directed
GARDEN". See CuETrLAGB ; Feeld, 1 ;
Messuage. by GAS
statute. 3COMPANIES. See Monopoly;
GARDENIK'G. See Agriculture.
GAIlin:SH.3 1. To warn, make aware, GASOLINE. See Oil.
Police, 2. '
notify. 2. To attach property or a debt due
GATES. See Wat, Right of.
or belonging to a defendant.
GAVELKIND.* A particular custom
Garnishee. One warned by legal process
in vogue in Kent (though perhaps general
in respect to the interest of a third party in
till the Conquest) which ordained that all
property held by him.*
sons alike should succeed to their father's
One in whose hands money or goods have estate.
been attached : he is "warned" not to pay The estate was not subject to escheat for attainder;
the money nor to deliver the property to the the tenant could alien by enfeoffment at fifteen, and
defendant.5 could devise by will. It was a species of socage tenure
The best reporters do not use garnishee as the modified by custom. ^
verb.^ The person warned is garnishee^; the fund or GAZETTE. Originally, a piece of money
property is garnished. current at Venice ; next the price at which
Garnishment. The process of warning sheets of news were sold; then the sheets
or citation.*
themselves. 6
Originally, a notice to a person not a party
The official publication of the English gov-
to a suit, to appear in court and explain his
ernment; also called the " London Gazette."
interest in the subject-matter of the litiga- It is^ evidence of acts of state, and of all pohtical
tion or to furnish other information. acts performed by the Queen; orders of adjudica-
Now, the act or proceeding of attaching tion in bankruptcy are also published, in it.
money or property belonging to a judgment "When the defendant cannot be found to be
served with a subpoena in chancery, a day for him to
debtor but in the possession of a third per- appear, being first appointed, is inserted in the Lon-
son. Otherwise known as " factorizing,''
•'garnishee," or "trustee process."
In the nature of an equitable attachment of the I Strickland v. Maddox, 4 Ga. 394 (1848); Western E.
debt or assets of the principal defendant in the hands
of a third person. Its object is to reach such assets Co. V. Thornton, 60 id. 306 (1878); Cm-ry u Woodwai'd,
60 Ala. 260 (1873); Han-is v. Miller, 71 id. 33 (1881); Rose
and apply them in discharge of the principal debt.^ V. Whaley, 14 La. An. 37k (1869;; Schindler v. Smith,
IS id. 479 (1866); Perkins v. Guy, 2 Monta. 20 (1873);
Oregon E. & Nav. Co. v. Gates, 10 Greg. 515 (1882);
> [Cutter V. Waddingham, ante. Godding v. Pierce, 13 R, I. 533 (188?); Steen v. Norton,
' " [Cartwright v. Cartwright, 18 Tex. 634 (1857), Hemp- 45 Wis. 414 (1878); Bicldei;. Chrisman, 76 Va. 091 (1862).
hill, C. J. = Lane's Appeal, 103 Pa. 65 (1884).
3 F. garnir: A. S. warnian. See G. s Miller V. United States, 11 Wall. 297 (1870), Strong, J. ;
< [Smith V. Miln, 1 Abb. Adm. 380 (1848), Betts, J. Schuler v. Israel, 120 id. 508 (1SS7); 24 Am. Law Reg.
6 [Welsh V. Blackwell, 14 N. J. L. 348 (1834); 3 Jacob, 626-34 (1885), cases. Inter-State exemptions, 21 Cent.
ir.T; Pennsylvania R. Co. v. Pennock, 51 Pa. 254 (1865). Law J. 425-23 (1885), cases.
= 22 Alb. Law J. 181 (1880). ■> " Gave all kinde,"— 1 Coke., Litt 140 a.
'Bethel i^. Judge of Superior Court, 67 Mich. 381 ' See 1 Bl. Com. 75; 3 id. 84; Williams, E. P. 1
(1885), ChampUn, J. ^ Trench, Glossary.
 GENDER 487 GENTLEMAN

don Gazette. In default o£ appearance, the bill will 6. Inclusive of many species or individuals;
be taken pro confesso.^^ ^ comprehensive; generic: as, a general —
GENDER. See Man. term, word, expression.
In the Revised Statutes, and in acts and resolutions Maxims: general words are taken in their general
of Congress, passed subsequently to February 25, 1871, sense; general expressions are restrained within the
■words imparting the masculine gender may be ap- subject-matter; special provisions derogate from gen-
plied to females.'* eral provisions; a general clause does not extend to
GENEALOGY. See Affinity; Con- things included in a prior special clause.
sanguinity; Pedigree. Deceivers deal in general expi'essions; fraud lurks
GENERAL. 1. Relating to a whole in general expressions; error attends upon general
expressions.
genus (q. v.) or kind, to a whole class or
"Where general words follow an enumeration of
order; 3 whether of persons, relations, things, particular cases, such words apply only to cases of
or places. the same kind as those expressly mentioned." Thus,
Opposed (1) to local , private, or special (see a land-warrant is not to be included in an act punish-
6, below) : as, general or a general — custom, ing forgery of " an indenture, certificate of public
stock, or debt, treasury note, or other public secu-
jurisdiction, law, practice, restraint, statute, rity." ■' See NosciTua, A sociis.
usage, qq. v. The meaning of general words will be restricted to
Opposed (2) to partial: as, a general as- carry out the legislative intenf
signment, q.V. Where particular words, in a statute, are followed
by words of a general character, the latter are to be
Opposed {S) to particular: as, general aver- restricted to the objects particularly mentioned. If
age, a general challenge, a general lien, qq. v. the act begins with words which speak of things or
Opposed (4) to private or individual: as, a persons of ah inferior degree and concludes -with gen-
general ship, q. v. eral words, the latter are not to be extended to a thing
or person of a higher degree. If a particular class is
Opposed (5) to specific: as, a general — in- mentioned and general words follow, they must be
tent, legacy, malice, qq. v. treated as referring to matters of the same kind, thus
Opposed (6), and chiefly, to special: as, subordinating general terms to the preceding par-
general or a general — agent, appearance,
ticulars.^
" General words in any instrument or statute are
appointment, charge, covenant, damage, de-
strengthened by exceptions, and weakened by enu-
murrer, deposit, deputy, issue, executor, find-
ing, guaranty, guardian, monition, occupant, See further
meration." * Ejusdem Generis; Videre, Videlicet,
order, owner, property, return, return-day, GENERIC. See General ; Genus.
rule, session, sessions, tail, traverse, verdict, GENTLE. Imports that a horse is docile,
warranty, qq. v. tractable, and quiet ; not, that he has received
2. Belonging to, concerning, or affecting
two or more persons or classes of persons, special training.^
GENTLEMAN. " One who bears court
or persons in the same category; and op- armor, the grant of which adds gentility to
posed to individual: as, general — assets, a man's family." ^
creditors, meeting, partners, qq. v. Originally, a man of gentle blood ; now, a
3. Common; obtaining among acquaint- person of any rank from the upper to the
ances or in the community at large: as, gen-
eral — credit, reputation, qq. v. lowest the middle classes.''
verge ofbutcher
A joufTieyman may be described as a gen-
4. Representing or pertaining to the public
tleman.^
at large, whether constituting a State or the On a jury list, as, "A. B., gent.," implies
United States; State, or National: as, the that the person has either no occupation or
no occupation known to the officials who
general assembly, a general election, the gen- made out the list. See Addition, 2.
eral government, qq. v.
5. Over all others; chief, superior, head:
1 United States v. Irwin, 5 McLean, 183-84 (1861).
as, in attorney-general, postmaster-general, ' Reiche V. Smythe, 13 Wall. 1U3 (1871).
s Barbour v. Louisville, 83 Ky. 100 (1885), Holt, J.
solicitor-general. Conti-adistinguished from
■deputy, district, local, special. ■1 Shai-pless v. PhUadelphia, 31 Pa. 161 (1853), Black,
C. J.; 66 Wis. 395.
1 3 Bl. Com. 445. E Bodurtha v. Phelon, 3 Allen, 348 (1801).
2R. S. § 1. See also Atchison, County Judge v. « 1 Bl. Com. 406: Coke, 3Inst. 668.
Lucas, 83 Ky. 464 (1885). ' [Smith V. Cheese, 1 C. P. D. 61 (1875), Grove, J.
a Brooks v. Hyde, 37 Cal. 376 U869). siSe Em-opean Bank, L. E., 7 Ch. Ap. 300 (1873).
 GENUINE GIVE
488

GENUINE. Belonging to the original Where the local law does not forbid, the United
kind or stock ; native ; hence, not false, ficti- States government may take property by gift.'
A naked promise to give, without some act sufdcient
tious, simulated, spurious, or counterfeit : as,
to pass title, is not a gift,— a locus pcenitentioe exists.'
a genuine note.l See Advancement; Donatio; Dondm; Influbnob;
Genuineness. Of an instrument — pred- Onerous; Possession; Presents, 2; Service, 3, Civil
Service.
icates that it is the act of the party as repre-
sented; that the signature is not spurious, Gift enterprise. In common parlance,
a scheme for the division or distribution of
that nothing has heen added to or taken
away from it that would lay the party chang- certain articles of property,' to be determined
ing the instrument or signing the name liable by chance, among those who have taken
shares in the scheme.^ See Game, 3.
to forgery.2
See Counterfeit; False; Forge, 2; Spurious. 2. At common law, also, the creation of an
GENUS. L. Kind; class; nature.
estate-tail.*
Used in the phrases alieni generis, ejusdem generis, GIRAED WILL CASE. See Cbasitt,
in genere, sui generis, qq. v. See also General. 2; Oephan.
GEOGRAPHICAL NAMES. See
GIST.5 The ground upon which a thing
Teade-mark.
rests ; the essence of an obligation or propo-
GESTAE. See Ees, Gestae. sition.
GIFT. See Give.
The "gist of an action'' is the cause for
The gratuitous transfer of personalty.' which an action will lie, — the ground or
The trarigf er of property without consider- foundation of a suit, without which it would
ation.* X^ not be maintainable, — the essential ground
The thing itself~-so transferred. or object of a suit, and without which there
An immediate, voluntary and gratuitous
is not a cause of action.^
transfer of his personal property by one to That without which there is no cause of action;
another, the transfer being executed by de- comprehends, therefore, whatever is indispensable in
law to a right of recovery. Hence, if anything of this
livery.5
A word of the largest signification, applied to either kind be omitted, the defect is incurably.'
realty or personalty.^ GIVE. 1. To transfer gratuitously, with-
As a general rule, delivery is essential.' out an equivalent. 8 See Gift.
A true and proper gift is always accompanied with 3. To furnish or supply : as, to give liquor
delivery of possession — after which the gift is exe-
cuted in the donee; and it is not in the donor's power to a niinor.9
to retract it, unless it be prejudicial to creditors, or 3. To find, furnish, supply : as, to give bail
the donor was under some legal incapacity, as, in- or security.
fancy, coverture, duress, or was imposed upon. H the 4. To forbear to sue ; to extend time : as,
gift does not take effect by immediate possession it is to give time to a debtor. See Foebeaeance.
not properly a gift, but a contract.* 5. To admit an apparent right in another :
A gift may be to a charity not in existence. See
Charity, 2. as, to give color. See Coloe, 3.
To complete a gift of money in trust, it is not nec-
essary that the beneficiary should be informed of the
■Dickson v. United States, 12S Mass. 313-16 (1878),
fact of the gift.* cases; 52 N. Y. 530; 94 U. S. 316, 321.
> [Baldwin v. Van Deusen, 37 N. Y. 492 (1868). ' Pearson v. Pearson, 7 Johns. 28 (1810). Delivery,
« [Cox V. North Western Stage Co., 1 Idaho, 380 (1871), when not essential, 81 Alb. Law J. 426-29, 445-48 (1885),
Whitson, J.
•2B1. Com. 441. s Lohman v. State, 81 Ind. 17 (1881), Niblack, J; Act
* Kehr v. Smith, 20 Wall. 34 (1873), Davis, J. See also of Congress 13 July, 1866: 14 St. L. 120.
« 2 Bl. Com. 31S.
Gray «. Barton, 65 N. T. 72 (1873); Chadsey, Adminis-
trator I .Lewis, 6 111. 155 (1844); Hynson v. Terry, 1 • Jlst. O. F. gist, it lies: the pointwherein the mat-
ter lies.
Ark. 87 (1833). As to the difference, in a liquor law, be-
tween "gift" and " sale," see Parkinson v. State, 14 "First Nat. Bank oS Flora v. Burkett, 101 111. 394
Md. 194, 197 (1859) ; HoUey v. State, 14 Tex. Ap. 512 (1883). (1882), Walker, J. See also Be Murphy, 109 id. 33 (1884).
s [Flanders v. Blandy, 45 Ohio St. 113 (1887), cases, ' Gould, Plead. 162: Ch. IV, § 12.
Dickman, J. : 26 Am. Law Beg. 587-92 (1887), cases. In "See 1 Iowa, 282; 2N.Y.163; 33 Conn. 297; 2 Ala. 656;
general, 19 Cent. Law J. 422-26 (1884), oases. 23 Me. 219; 8 Cow. 38; 14 Wend. 38.
« See Allen v. White, 97 Mass. 507 (1867). » Commonwealth v. Davis, 12 Bush, 240 (1876) ; Halley
'Adams v. Adams, 21 Wall. 191 (1874). V. State, 14 Tex. Ap. 512 (1883); Parkinson v. State, 14
Md. 194 U8S6J.
'Martin v. Funk, 75 N. Y. 137-43 (1878), cases.
 GLANDERS
489 GOODS

6. To expound; to administer, apply: as, GOnSTG. See Crop; Go; Rate, 1.

to give law. Going concern. A corporation which,
7. To surrender voluntarily to an oflacer of although it may be insolvent, still continues
the law : as, to give one's self up. to transact its ordinary business.!
GLANDERS. See Health, Boards of. Going witness. A witness who is about
GLOUCESTEB, STATUTE OP. See to go out of the jurisdiction of the court in
Costs. which his testimony will be desired. See
GO. The first word of a few idiomatic or Deposition.
technical expressions. See Going. GOLD. See Coin; Mine; Money;
Tender, 2.
Go bail. To become surety on a bail-
bond, q. V. GOOD. Generally speaking, preserves its
Go to. 1. To be given to, to descend to.i popular, untechnical meanings. Compare
2. A circumstance which concerns or Bab ; Bonus.

affects one's competency or credibility as a 1. Orderly, lawful: as, good behavior q.v.
witness, or the jurisdiction of the court, is 2. Fair, honorable : as, good fame, or char-
acter, q. V.
sometimes said to "go to " the competency,
to the jurisdiction, to the question, etc. 3. Valid, valuable: as, a good considera-
" When mutual coTenants go to the whole consider- tion, q. V.
ation on both sides, thej are mutual conditions." ^ 4. Legally sufiScient: as, a good — count,
" A demurrer may go to the form of the action, to deed, defense, ground, qq. v.
a defect in pleading, or to the jurisdiction of the
5. With lawful intent : as, good faith, q. v,
court.'" '
Go to prison. To be committed or sen- 6. Genuine, not spurious; also, collectible:
tenced to a jail, penitentiary, or other place as, a good note. 2
of confinement for persons accused or con- 7. Responsible ; able to pay a money obli-
victed of a criminal offense. See Prison.
Go to protest. Said of commercial paper In this sense bondsmen, indorsers, partners, and
gation.
which becomes protested for non-payment or wrong-doers are spoken of as "good."
In this sense, also, is " good " written upon the face*
non-acceptance : to become dishonored. See of a check. See Check, Certified.
Protest, 2. 8. Welfare, prosperity, happiness : as, the
Go without day. For an acquitted per- public good ; also whatever promotes the gen-
son to be dismissed from court with no day
eral welfare of society : as, good morals, " the
set for reappearing — sine die; also, the rec- greatest good." See Morals; Police, 2;
ord entry in such a case. Welfare.
GOD. In the generally received sense, GOOD FRIDAY. See Holiday.
occurs in a few expressions : GOODS. Has a very extensive meaning.
Act of God. See Act, 1, Of God. In penal statutes, is limited to movables
God and my country. A prisoner, upon which have intrinsic value, and does not in-
arraignment, answered (or answers) that he clude securities, which merely represent
would be tried " By God and my country.'' value. In ivills, when there is nothing to re-
The practice arose when he elected a trial by ordeal strain its operation, includes all the personal
or by a jury. The original form was, likely. By God
or by my country : the answer was meant to assert in- estate.
In a 3limited sense, articles of merchandise; not
nocence by a readiness to be tried by either mode.*
See further Abkaiqn. fixtures, nor chattels real ; but may include animals.
In a merchant's store, refers to the merchandise
God's penny. Earnest-money; origi- and commodities kept for sale.*
nally, asmall coin given to the church or to
the poor. 1 White, &c. Manuf. Co. v. Pettes Importing Co., 30
So help you God. See Oath. F. E. 865 (1887).
See Chbibtiahity; Law, Divine; Eexigion. "See Polk v. Frash, 61 Ind. 206 (1878); Corbet v.
Evans, 25 Pa. 310 (1855); 16 Barb. 342; 14 Wend. 231; 1
> Ivin's Appeal, 106 Pa. 181 (1884). Cush. 473; 18 Pick. 321; 4Meto. 48; 26 Vt. 406.
» Lowber v. Bangs, 2 Wall. 736 (1864). s Keyser v. School District, 35 N. H. 483 (1857), Per-
" Bissell V. Spring Valley Township, 124 V. S. 832 ley, C. J. ; United States v. Moulton, 5 Mas. 545 (1630),
(1888). Story, J.; Jarman, Wills, 692; 44 N. Y. 310.
• See 1 Chitty, Cr. Law, 416; 4 Bl. Com. 323. * Curtis V. Phillips, 5 Mich. 113 (1858).
 GOOD- WILL GOVERNMENT

,490 ence, or punctuality, or from other accidental

Goods and cHattels. Includes only per-
sonal property which is visible, tangible, and circumstances or necessities, or even from
movable ; not, a right of action ; l nor, a thing ancient partialities or prejudices.!
real. The benefit or advantage which accrues to
The expression is equivalent to goods, the firm, in addition to the value of their
wares, and merchandise. 2 property, derived from their reputation for
The precise import depends upon tlie subject-matter promptness, fidelity and integrity in their
and the context.' See Chattel. transactions, from their mode of doing busi-
Goods and merchandise. In the busi- ness, and other incidental circumstances, in
ness of commerce, commodities bought and consequence of which they acquire general
sold by merchants and traders.* patronage from constant and habitual cus-
Goods, wares, and mercliandise. In
duty-laws, the word "merchandise" may Every tomepositive
rs. ^ advantage that has been acquired
include goods, wares, and chattels of every by a proprietor, in carrying on his business, whether
connected with the premises in which the business is
description capable of being imported.^ conducted, or with the name under which it is man-
In the statute o£ Frauds, the expression does not
include fixtures, but does include growing crops. aged, or with any other matter carrying with It the
benefit of the business.*
Promissory notes and shares in an unincorporated
Good-will is a firm asset; whether it survives to a
company, and even money, have been held to be within
partner has not been uniformly decided; after a vol-
it;"* also, cattle.^ untary dissolution, each partner has a right to use the
The words of the Statute have never been extended
old firm name, unless otherwise agreed; it is the sub-
beyond securities which are subjects of common sale
and barter, and which have a visible and palpable ject of sale like other personalty.*
form. They do not, therefore, include an interest in GOSPELS. See Blasphemy; Chaeity,
an unpatented invention.^ See Merchandise. 3 ; Cheistianity ; Indigent ; Oath, Corporal.
See Bona, 2; Confusion, 1; Distress; Duress; Exe- GOVERNMENT.s 1. The controUing
quTioN, 3; Perishable; Property, Personal.
power in society."
GOOD- WILL. Favorable reputation. The aggregate of authorities which rule a
The probability that the old customers will
society,'
resort to the old place. 8 That form of fundamental rules by which
The advantage or benefit which is acquired the members of a body politic regulate their
by an establishment beyond the mere value
social action, and the administration of pub-
of the capital, stock, funds, or property em- lic affairs, according to established constitu-
ployed therein, in consequence of the general
tions, laws, and usages, s
public patronage and encouragement which
2. The state, the commonwealth, the peo-
it receives from constant or habitual custom-
ple ; as, in criminal practice.
ers, on account of its local position or com-
3. In a commercial sense ' ' governments "
mon celebrity, or reputation for skill or afflu- signifies securities of government, State or
United States.
• Kirkland v. Prune, .31 Gratt. 131 (1878).
2 Passaic Manuf. Co. v. Hoffman, 3 Daly, 513 (1871). 'Story, Partnership, §99. See also 33 Cal. 624; 65
s Gibbs V. Usher, 1 Holmes, 361 (1874); Jarman, Wills, Ga. 34; 1 Mo. Ap. 601; 44 N. H. 343; 70 N. Y. 473; 36
731; Addison, Contr. 31, 201, 912. Ohio St. 522; 60 Pa. 121; 19 How. Pr. 26.
* Chamberlain v.. Western Transp. Co., 45 Barb. 223 ' [Angler v. Webber, 14 Allen, 215 (1867), Bigelow,
(1806): 44 N. Y. 310 (1871); The Marine City, 6 ¥. E. 415 C. J.; Munsey v. Butterffeld, 133 Mass. 494 (1383).
<1881), cases. See also Tisdale v. Harris, 20 Pick. 9, 13 ■Dwight,
s Glen C.cS; Hall Manuf. Co. v. Hall, 61 N. Y. 230 (1874),
<1838).
s E. S. § 2766. See The Elizabeth & Jane, 2 Mas. 407 « See Barber v. Connecticut Mtit. Life Ins. Co., 15 F.
<1823); 2 Sumn. 363; 4 Blatch. 136. E. 312, 316-33 (1883), oases; 14 Am. Law Eeg. 1-11, 339-
« 2 Pars. Cont. 830-32; 2 Kent, 510, note; Benj. Sales, 41, 649-69, 713-25 (1885), cases; 13 Cent. Law J. 163-65
§ HI. (1881), cases; 19 id. 363-68 (1884), cases; 19 Alb. Law J.
' Weston V. McDowell, 20 Mich. 337 (1870). 503-3 (1879), Eng. cases; 3 Kent, 64; 1 Pars. Cont. 163;
« Somerby v. Buntin, 118 Mass. S83 (1875), Gray, C. J. ; 63 Pa. 81; 5 Ves. 639; 15 id. 318, 237.
1 Woolw. 217; S Daly, 512; 6 Wend. 355; 40 Ind. 693; 55 ' O. F. govener: L. gubemare, to steer a ship, to
Iowa, 620; 3B1. Com. 387. rule. Whence "ship of state."
» Crultwell V. Lye, 17 Ves. *346 (1810). Eldon, Ld. C. ; " 1 Sharswood, Bl. Com. 48.
Bradford 1;. Peckham, 9 E. I. 252 (1869); Chittenden v. ' Francis Lieber; 1 Bouv. 715.
Witbeck. 60 Mich. 420 (1883) ; Myers v. Kalamazoo Buggy 'Winspear v. Township of Holman, 37 Iowa, B44
(1873): Young, Science Gov., p. 13.
Co.. 54' id. 232 (1884); 128 U. S. 523.
 GOVERNMENT 491 GOVERNMENT

The government o£ a state being the most promi- also impose efficient restraints on the exercise
nent feature, or that most readily perceived, " govern- for the purpose of protecting individual
ment" is frequently used for "state." Similarly, rights and privileges, and shielding them
government is also used for " administration." ^
The object of government is to secui'e to the gov- against any assumption of arbitrary power, l
erned the right to pursue their own happiness ; that is, See Constitution.
the happiness of the individuals who compose the Government de facto. A government
mass. In this consists civil liberty.* See Happiness;
Liberty, 1, Civil. that unlawfulty gets possession and control
Government is formed by depriving: all persons of a of the rightful legal government, and main-
portion of their natural rights. The rights they enjoy tains itself there, by force and arms, against
under government are not conferred by it, but are the will of the rightful government, and
those of which they have not been deprived. It is
claims to exercise the powers thereof. Gov-
only by a deprivation of all pei'sons of a portion of ernment de jure. The rightful, legal
their rights that it is possible to form and maintain
■ government. . Its organization means a surrender
government.2
A government de facto, in firm possession of any
by each of a portion and the control of his reserved
rights, and the power of the government to control all country, is clothed with the same rights, powers, and
persons in the exercise of these reserved rights must duties as a government de jure. . . In all cases
be conceded. Saluspopulisupremalex. In the main- where the United States have been called upon to
tenance of the government and the general welfare, recognize the government or independence of any
individual rights, whether of natural persons or cor- other country, they have looked only to the "fact,"
porate bodies, must yield to the public good, and the and not to the right.*
General Assembly is invested with the sole power of A government de fabto is (1) such as exists after it
determining under what restraints all persons, whether has expelled the regularly constituted authorities
natural or artificial, shall pursue their various voca- from the seat of power and the public ofQces, and set
its own f mictiouaries in their places, so as to represent
tions, unless restricted by constitutional limitation. ^
Government is a moral relation, necessarily result- in fact the sovereignty of the nation ; or (3) such as
ing from the nature of man. . The wants and exists where a portion of the inhabitants of a country
fears of individuals in society tend to government. have separated themselves from the parent state and
Blackstone supposes that sovereignty resides in the established an independent government. As far as
hands of the law-makers. Our idea is that government other nations are concerned, the former is treated in
is a mere agency established by the people for the ex- most respects as possessing rightful authority; its
ercise of those powers which reside in them. The contracts and duties are enforced; its acquisitions are
powers of government are, in strictness, delegated retained; its legislation is in general recognized; and
the rights acquired under it are, with few exceptions,
powers, and, as such, trust powers, capable of revoca-
tion. A written constitution is but the letter of attor- respected after the restoration of the authorities
ney.* See Compact, Social. which were expelled. The validity of the acts of the
Government is an abstract entity. It speaks and latter depends entirely upon its ultimate success. It
it fails to establish itself permanently, all such acts
acts through agents; these hold offices under law, con-
stitutional or statutory, with prescribed duties and perish with it; if it succeeds and becomes recognized,
limited authority.' its acts are upheld as those of an Independent nation.
The theory of our government is that all public The late Confederate government was distinguished
stations are trusts, and that those clothed with them from each of those. It was simply the miUtary repre-
are to be animated in the discharge of their duties sentative of the insurrection against the authority of
the United States. When its military forces were
solely by considerations of right, justice, and the
overthrown, it perished, and with it all enactments
public good. The correlative duty rei-ting tipon the and other acts. Legislative acts of the several States,
citizen is to exhibit truth, frankness, and integrity.'
Constitutional government. Applies so far as they did not tend to impair Federal su-
to a state whose fundamental rules and premacy, or the rights of citizens under the Constitu-
tion, are valid and binding.* See Money, Lawful;
maxims not only define how those shall be Oath, Of ofHce.
chosen or designated to whom the exercise Local government; municipal gov-
of sovereign powers shall be confided, but ernment. See CORPORATION, Municipal.

•Francis Lieber: 1 Bouv. 715. 1 Calhoun, Works, I, II; Cooley, Principles Const.
= 1 Sharswood, Bl. Com. 128, 137. Law, 32.
2 Chisholm v. Coleman, 43 Ala. 213 (1869), Peck, C. J.
3 Wiggins Feri-y Co. v. East St. Louis, 103 111. 569
<1882), Walker, J. 8 Phillips V. Payne, 92 U. S. 133 (187B), Swayne, J.
< Williams v. Bruffy, 96 U. S. 185 miT), Field, J. See
M Sharswood, Bl. Com. .48-49. See also Virginia
Coupon Cases, 114 U. S. 390 (1885). also Thomington v. Smith, 8 Wall. 8-9 (1808), Chase,'
■6 The Floyd Acceptances, 7 Wall. 676 (1868), Miller, J. C. J.; Ford v. Surget, 97 U. S. 616, 610 (ISrs), cases,
6 Trist V. Child, 31 Wall. 450 (1874), Swayne, J. ; Stone Clifford, J. ; Fifleld v. Ins. Co. of Pennsylvania, 47 Pa.
«. Mississippi, 101 U. S. 830 (1879). 170-88 (1S&4).
 GOVERNMENT 493 GOWN

Federal, General, National, United opposed to the deposit of unlimited power anywhere.'
The Constitution reposes unlimited power in no de-
States Government; States govern- partment of the National government. The lines of
ments. In the United States, powers of separation are to be closely followed to avoid en-
government are of four classes: (1) Those croachment. '^A. co-ordinate branch will be decided to
which belong exclusively to the States. (3) have transcended its powers only when that is so plain
Those which belong exclusively to the Na- that the duty cannot be avoided.^ See Department.
The power of governing being a trust committed by
tional Government. (3) Those which may the people to the government, no part of the power
be exercised concurrently and independently can be granted away, as, the power to tax. The sev-
by both. (4) Those which may be exercised eral agencies can govern according to their discretion,
by the States, but only until Congress shall but cannot give away or sell the discretion of their
see fit to act upon the subject. ' successors.*
When the government of the United States was Kepublioan form of government. See Eepub-
formed, some of the attributes of State sovereignty Lic, Eepublican, etc.
See further Allegiance; Anaboht; Appbaiseb;
were partially, and others wholly, surrendered and
Citizen; Codbt; Domain; Election, 1; Faith, Full,
vested in the United States.'^ The special powers dele- etc.; Fbanchisb; Got, 1; iNDEPBNnENOE; Indian;
gated to it are principally such as concern the foreign
relations of the country, the rights of war and peace, Judiciart; Jurisdiction; Kino; Laches; Law, Com- :
mon; Legislation; Liberty, 1; Limitations, Statute
the regulation of foreign and domestic commerce,
of; Magna Charta; May; Minister, 3; Office; Peo-
and other subjects of general importance.^ Its pe- ple; Police, 2; Policy, 1; Privilege, 1; Religion;
culiar duty is to protect one part of the country from
Eevenue; Sedition; Service, 3; Sovereignty; State,
encroachments by another upon the national rights
3; Suit; Tax, 2; Tort; Treason.
which belong to all.* Its authority extends over the
whole territory of the Union; it acts upon the States GOVERWOB. See Go veenment ; Veto.
and the people of the States. It is, so far as its sover- GOWN. 1. That worn by the justices of
eignty extends, supreme. No State can exclude it the Supreme Court of the United States has
from exercising its powers, obstruct its authorized always been a long robe of blacle silk.
ofilcers against its will, or withhold cognizance of any
A portrait of the first chief justice, John Jay, rep-
subject which the Constitution has committed to it,—
resents him in a bon'owed robe, with broad scarlet
otherwise it would cease to exist.^ Congress may make facings and collar and sleeves of the same color. This
all laws necessaiy (g. v.) and proper for carrying into gave rise to the tradition that the justices wore red
execution the powers delegated to it."* The powers gowns in the early days of the court.
not delegated, nor prohibited to the States, in the Con-
stitution, are reserved .to the States respectively, or to In the higher tribunals of the States, scar-
the people." Every addition to. its power is a corre- let gowns were worn, in some instances, as
sponding diminution of the powers of the States.^ late as 1815.5
The rights of each sovereignty are to be equally re- 3. In England, the silk gown is the pro-
spected. Both are essential to the preservation of
fessional robe worn by those barristers who
our liberties and the perpetuity of our institutions. ^
See Constitution. have been appointed of the number of her
The departments of governi^ent are the legislative, IMajesty's counsel, and is the distinctive
which deals mainly with the future; the executive,
which deals with the present; and the judicial, which badge of Queen's counsel, as the stuff gown
is of the juniors who have not obtained that
is retrospective, dealing with acts done or threatened,
promises made, and injuries suffered.*
The theory of government, State and National, is Accordingly, when a barrister is raised to' the de-
dignity.
gree of Queen's counsel, he is said to "get a silk
gown." The right to confer this dignity resides with
I Chicago, &o. E. Co. v. Fu)ler, 17 Wall. B68 (1873), the Lord Chancellor, who disposes of this branch of
Swayne, J.; 100 U. S. 386, 390. his patronage according to the talents, the practice,
"United States v. Cruikshank, 92 U. S. 549 (1875); the seniority, and the general merits of the junior
Tennessee v. Davis, 100 id. 863 (1879); T^rble's Case, 13
Wall. 456 (1871). counsel." .
" The rules as to the robes worn by British judges
' 1 Sharswood, Bl. Com. 49. have been transmitted ora\ly. Scarlet is the color for ,
* Pensacola Telegraph Co. v. Western Union Tele- the judges sitting in banc on the first day of the term;
graph Co., 96 U. S. 10 (1877). also in banc on such days as appear with red lettera in
« Constitution, Art. I, sec. 8, cl. 18.
' Constitution, Amd. Art. X. ' Loan Association v. Topeka, 30 Wall. 663 (1874).
' Exp. Virginia, 100 U. S. 346 (1879). = Kilbourn v. Thompson, 103 U. S. 190 (1880).
s Exp. Siebold, 100 U. S. 394 (1879). s Trade-Mark Cases, 100 U. S. 96 (1879).
"See Waymani). Southard, 10 Wheat. 46 (1825); 81 * Stone V. Mississippi, 101 U. S. 820 (1879).
Am. Law Rev. 399-417 (1887), cases; 1 Law Quarl Eev. » See The Century, Dec. 1882.
80-99(1886); 4E.L334; 11 Pa. 489; 29 Mich. 461; 68 N.H. 'See 5 Alb. Law J. .225 (1872); Jeaffreson, Courts &
453. Lawyers, 180; Brown, Law Diet.
 GRACE 493 GRAIN

the calendar. On circuit, at the opening of the com- foiu'; in Sweden, six; in Bremen, and Denmark, eight;
mission, scarlet robes are worn by both judges, should in Hamburg, twelve; in Spain, fourteen on foreign
two be present. After the commission is opened, the bills. No grace is recognized in Amsterdam, Antwerp,
judge who sits in the crown court and tries prisoners France, Genoa, Germany (generally, since 1871), Leg-
continues to wear scarlet untU all the prisoners are horn, ^.eipsic, or Naples.'
dealt wich. He is hence termed by criminals ' the The law of the place of payment is regarde4. He
red-gown judge.' The judge who tries nisi prius who claims the benefit of a foreign law or usage must
cases removes his scarlet, puts on black, and is called prove the existence of the law.'' See Piace, Of pay-
' the black-gown judge.' The scarlet robes worn in mint; Maturitt, 8.
winter in town, and on circuit, whether in summer or
Grace widow. A widow by a decree of
winter, are trimmed with ermine, but in town in sum- a court of divorce.
mer these robes are trimmed with gray silk. When
on circuit, the senior or ' red-gown judge ' sits in the Corrupted into grass-widow.
crown court at the first town in the circuit, while the GRADE. 1,'u To reduce to a certain de-
junior judge takes nisi prius cases, but at the next gree of accent or descent.
place * the red gown judge ' becomes ' the black-gown The power to grade a street is co-extensive with tha
judge,' £ind so they alternate throughout the circuit. duty." See Over, 1; P.iVE.
On ordinary days the judges sitting in banc wear dark
2, n. Degree, order, rank. See Degree.
blue or purple robes, which in winter are trimmed
Grades of crime. These are higher or lower ac-
with ermine, and in summer with bronze silk." cording to the measure of punishment, and the con-
GRACE. Favor, indulgence, toleration;
sequences resulting to the convicted party.*
opposed to right, strict right : as, that a thing Grade and rank. Navy officers are classified —
done in court is allowed as a matter of grace. 1, according to duty, office, or title; 2, according to
relative importance or honor; 3, according to com-
Act of grace. An act of pardon or am-
pensation. All of these classes come within the nor-
nesty, qq. V.
mal meaning of the words " grade or rank." The law
Days of grace. Certain days, in addi- designates some of them as grades or ranks by name,
tion to the time specified in a bill or note, in others only by description.' See Rank; Title, 5.
which payment may be made, before it can GRADUATE. In the universities, a stu-
be lawfully protested. dent who has honorably passed through the
In common speech this period is termed prescribed course of study and received a
certificate to tliat effect.
•• grace ; " as in saying that " grace " is or is
not allowed on a particular instrument. A cadet-engineer who has successfully completed
Originally allowed by the custom of merchants as his academic course, passed the closing examination,
and received from the Academic Board a certificate
a matter of favor or indulgence. This c<istom re-
ceived the sanction of the courts, and so grew into to that effect, has hitherto' been called a " graduate."
law. The statute of 3 and 4 Anne (1705), which made The act of August 5, 1882 (22 St. L. 285), did not make
promissory notes negotiable, also conferred this right such graduates " naval cadets." • See Cadet; Title,
to days of grace. That statute has been generally 5; Alcohol.
■adopted in our States. GRAFT. In equity, describes the right
In the absence of an express contract to the con- in a creditor, who holds a mortgage upon
trary, the allowance now enters into every bill or note
of a mercantile character, and forms a part of it, so property to which the mortgagor had an im-
that the paper, in fact and in law, is usually due on the perfect title, to a lien upon the premises,
last day of grace. after the debtor has acquired a good title.'
Demand is made on the last day, and interest is GRAIN. See Crop.
charged on all the days. If the last day is Sunday or Includes or may include: flax-seed,' millet and
■a, legal hoUday, the paper is due the preceding day. sugar-cane seed,' oats,'" peas."
Checks are not entitled to the favor; nor are sight ' See Byles, Bills, 206; Chitty, Bills, 11 ed. (1878);
-drafts, nor judgment notes.^ Pierce v. Indseth, 106 U. S. 560 (1882).
The number of days varies from three to thirty. » See Story, Prom. Notes, §§ 216, 247.
Three is the limit in the United States; except in Ver- s Smith V. Washington City, 20 How. 148 (1857).
mont, where, it seems, no grace at all is allowed. In 'People V. Eawson, 61 Barb. 631 (1872).
Louisiana, an inland bill or note is due without grace 'Rutherford v. United States, 18 Ct. a. 343 (1883);
for purposes of setoff. In New York, bills on bank McClure v. United States, ib. 347 (1883).
■corporations are not entitled to the favor. « Leopold V. United States, 18 Ct. CI. 516, 557 (1883),
In Great Britain and Ireland, Berlin, and Vienna, Sohofield, J.
the number of days isthree ; in Frankfort-on-the-mam, ' See La. Civ. Code, art. 8271; 9 Mass. *36.
' See Byles, Bills, 309, 810; Bank of Washington v. 6 Hewitt V. Watertown lus. Co., 55 Iowa, 324 (1880).
Triplett, 1 Pet. *31-35 (1828), cases, Marshall, C. J.; » HoUand v. State, 34 Ga. 457 (1866).
Cookendorfer v. Preston, 4 How. 336 (1846); Bell v. 10 Smith V. Clayton, 29 N. J. L. 361 (1862).
First Nat. Bank of Chicago, 115 U. S. 379-53 (1885), 11 State V. Williams, 2 Strob. L. 477 (S. C, 1848). See
Park, Ins. 112; 1 Marsh. Ins. 223, n.
 GEAMMAR 494 GRANT

" Com " in the test of Blackstone's commentaries Grant and demise. In a lease for years,
means grain.^ "Corn-laws " regulated trade in bread- create an irtiplied warranty of title and a
stuffs.
In this country, in statutes of modern date, corn covenant for quiet enjoyment.! See Demise.
means Indian corn, maize; ^ and either shelled or in Grant, bargain, and sell. In a deed,
the ear. 3 do not import a general covenant of seisin or
See also Agricultueb; Emblements; Perishable; against incumbrances, but a covenant that
Provisions; Seed.
the grantor has done nothing whereby the
G-BAMMAB,. False grammar (syntax) estate granted may be defeated,^ for quiet
alone never invalidates vrritten instruments :
falsa, or mala, grammatioa non vitiat dhar- enjoyment, at least. ^
They imply a covenant against incumbrancer, in-
tamA
cluding taxes. ^ See Covenant, Implied; Suffer.
See Blank, 2; Punctuation. ' A grant of personalty is termed an assignment or a
.GRAND. Great; greatest; chief; ad- bill of' sale. See Assignment, 2; Gift, 1; Sale, Bill of;
vanced in rank ; opposed to common, petit or Title, 1.
petty, q. v. 3. Any concession by the public, being evi-
As, in grand jury or inquest, grand lar- denced by an enactment or record ; in par-
ticular, a transfer of public land, or the
ceny ;and, also, as in grandchild and grand-
parent, qq. V. creation of a franchise by charter, or of a
GRANGER CASES. See Munn v. Illi- monopoly by letters patent, or of an exclusive
nois, Charter, 2, Private; Policy, 1, Public^ privilege by certificate of copyright.
Described as a legislative, government, official,
GRANT. 1. At common law, the method
public. State, or United States grant.
of transferring the property of incorporeal Grantor. He who makes a grant.
hereditaments, or such things whereof no Grantee. 1. He to whom a grant is made.
livery can be had.^ ^2. One who has transferred to him, in
An incorporeal hereditament was said to lie in
grant; and a corporeal hereditament, in livery. A writing, the exclusive right, under a patent,
grant differed little from a feoffment (g. v.), except in to make and use, and to grant to others to
the subject-matter; the same words were used.^ make and use, the thing patented, within
2. A generic term applicable to all trans- and throughout some specified j:)ortion of the
United States.* See Assignee; Licensee.
fei-s of realty.''
Any conveyance of realty.^ The king's grants are matter of public record.
" Hereby granted " imports an immediate transfer Whether of lands, honors, liberties, franchises, or
of interest." aught besides, they are contained in charters, or
To constitute a grant, it is not indispensable that letters patent. . The manner of granting by him
technical words be used; any words that manifest the does not differ from that by a subject more than the
same intention will suffice.^" construction of his grants, when made. (1) A grant by
Statute of 8 and 9 Vict. (1843) c. 106, made all cor- the king, at the .suit of the grantee, shall be taken
poreal rights, as regards the conveyance of the imme- most beneficially for the king; whereas the grant of a
diate freehold, to be deemed to lie in grant as well as subject is construed most strongly against the grantor.
in livery. (2) A subject's grant shall be construed to include many
things, besides what are expressed, if necessary for
I 3 Bl. Com. 10, 162, 156, 218; 4 id. 169. the operation of the grant. Therefore, in a private
"kerrick v. Van Dusen, 32 Minn. 318 (1884); Com- grant of the profits of land for one year, free ingress,
monwealth V.Pine, 2 Pa. Law J. E. *412 (1844); Sul- egress, and regress, to cut and carry away those profits,
lins V. State, 53 Ala. 473 (18T5); Wood v. State, 18 Fla.
969(1882); 46 Tex. 402. are inclusively granted. But the king's grant shall
not enure to any other intent than that which is pre-
s State V. Nipper, 95 N. C. 655 (1886). viously expressed in the grant. (3) When it appears,
4 2 Bl. Com. 379; State v. Shaw, 53 N. H. 74 (1877); 112 from the face of the grant, that the king is mistaken
U. S. 216; 63 Iowa, 03; 70 Pa. 237; 80 Va. 699; 1 Whart. or deceived in a matter of fact or of law, or if his own,
Cr. 190; Broom, Max. 535. title be different from what he supposes, or if the
5Seealsol9F. R. 698.
» 2 Bl. Com. 317; Williams, E. P. 147; 5 Mass. 471 ; 16 ' Scott V. Euiherford, 93 U. S. 109 (1876), cases.
N. Y. 75; 1 Black, 358. = 4 Kent, 460; 2 Ala. 533; 5 id. 586; 12 id. 159; 7 111.
'3 Washb. E. P. 181, 353, 378; Durant v. Ritchie, 4 148; 19 id. 235; 21 id. 220; 50 Pa. 480.
Mas. 69 (1825). s Blossom V. Van Court, 34 Mo. 390 (1864). See fur-
sMcVey v. Green Bay E. Co., 42 Wis. 535-36 (1877); ther 4Oreg. 235; 1 Conn. 79; 1 T. B. Mon. 30; 32 Me. 329;
Lambert v. Smith, 9 Greg. 193 (1881). 8 Barb. 463; 5 Tenn. 124; 23 Cal. 175; 32 111. 348; 60 Mo.
» Wright V. Eoseberry, 121 U. S. 496, 600 (1887). 138; Eawle, Cov. Tit. 481-97, cases.
i» East Jersey Iron Co. v. AVright, 32 N. J. E. 252 (1880); 1 Act 4 July, 1836, §§ 13, 14; Potter u. Holland, 4
Barksdale v. Hairston, 81 Va. 765 (1886), cases. Blatch. 211 (1858).
 GRANT 495 GREAT

graijt be informal, or if he grants an estate contrary in the party. All other questions are settled by the
to the rules of law,— the grant is absolutely void.' .decision made by the tribunal or officer, whether exec-
By a grant everything passes which is necessary to utive, legislative, judicial, or special, unless an appeal
the -full enjoyment of the right, title, or estate which is provided for, or other revision, by some appellate
is included in the words. A grant of a mere way car- or supervisory tri^^unal, is prescribed. In no case have
ries an easement only — the ownersliip ol the soil not documents of title, executed by officers of the govern-
being essential to the free use of the right. Uut a ment, been held sufficient" where the fact in issue was
grant of an estate designated only by the particular whether the government had any title to convey, to
use for which the land is appropriated will pass the establish the fact in dispute, as against parties claim-
fee; as, a grant of " a house," "a wharf," "a mill," ing a pi-e-existjng, adverse, and paramount title them-
"a well," "a barn," and the like.' selves.^
With respect to "public grants," the rule is, that No one can grant what he does not own.' See
rights, privileges, and immunities not expressly Dare, Nemo, etc.
granted are reserved. Nothing can be presumed See Chahtee, S; Condition; Deed, 2; DELrvEBT;
against the State. There would be no safety to public Disclaimer, 2; Disparagement, 2; Incident; Land,
interests in any other rule. The rule applies with spe- Public; Patent 1 (1)„2.
cial force where the claim would abridge or restrain a 4. To confer, bestow, allow, permit, award,
power of government, as, the power of taxation.'
issue : as, to grant a rule to show cause, let-
"Where a statute operates as a grant of public prop- ters testamentary or of administration, a writ
erty to an individual, or the relinquishment of a public
interest, and there is a doubt as to the meaning of its of certiorari, habeas corpus, or mandamus.
terms, or as to its general purpose, that construction GRASS. See Crop.
should be adopted which will support the claim of the GRASS WIDOW. See Grace.
government rather than that of the individual. Noth-
GRATIA. See E, 2: Grace.
ing can be inferred against the State. Such acts are
usually drawn by interested parties; and they are pre-
GRATIS. See Dictum, Gratis.
sumed to claim all they are entitled to. The rule GRATUITOUS CONTRACT or
serves to defeat any pm-pose concealed by the skUlful SERVICE. See Consideration, 3; De-
use of terms, to accomplish something not apparent posit, 1; Subscribe, 2.
upon the face of the act, and thus sanctions only open
dealing with legislative bodies.' GRATUITY. See Bonus, 3; Bounty;
A more liberal rule of construction is allowable, in Charity, 2 ; Deposit, 1 ; Trust, 1.
interpreting a grant from one State or political com-
GRAVAMEN". L. Burden, weight.
munity to another, than is permitted in interpreting a That part of a charge which weighs most
private grant." heavily against the accused ; the essence of an
■\^'here power or jurisdiction is delegated to any accusation.
public officer or tribunal, and its exercise is confided
to his or their discretion, acts done are binding as to Tlie grievance complained of ; the substan-
the subject-matter ; and individual rights will not be tial cause of an action. 3
disturbed collaterally for anything so done. The only GRAVE. See Burial ; Sepulchre.
questions which can arise between an individual claim-
GREAT. See Care ; Charter, 1 ; Seal, 1.
ing a right under the acts and the public, or a pei'son
denying its validity, are power in the officer and fraud Compare Grand ; Gross ; Magnus.
Greater. Larger; superior; chief; prin-
' 2 Bl. Com. a48-^, 121, 380.
^ Jamaica Fond Aqueduct Corporation v. Chandler, 9 cipal.
The greater includes the less.
Allen, IW (1804), Bigelow, C. J.; Johnson v. Eayner, 6
The greater power of making wholly new legisla-
Gray, 110 (185(i,i, cases; United States v. Appleton, 1
Sumn. 600 (183.3); Bank of British North America v. tion includes the lesser power' of altering old legisla-
Miller, 7 Saw. Wi (1881), cases; Green Bay, &c. Canal
The withdrawal or extinguishment of the greater
Co. V. Hewitt, 66 Wis. 464-65 (1886): Lowell v. Strahan, tion.*
carries the less; thus, the withdrawal or extinguish-
145 Mass. 1, 11 (1887), cases; 26 Am. Law Heg. 728-26 ment of a, franchise authorizes the withdrawal or ex-
(1887), cases; 19 Cent. Law J. 446 (1884)- Solic. Journ. tinguishment of every right which is a part of the
'The Delaware Railroad Tax, 18 Wall. 225 (1878),
Field, J. See also Schulenberg v. Harriman, 21 id. 02 franchise.^
(1874); Heydenfeldt v. Daney Gold, &c. Co., 93 U. S. ' Sabariego v. Maverick, 124 U. S. 280 (1888), cases,
638 (1876); Wiggins Ferry Co. v. East St. Louis, 107 id. Matthews, J., quoting United States v. Arredondo, 6
371 (1882), cases; Ruggles v. Hlmois, 108 id. 631 (ISaS), Pet. '727 (1832), cases.
cases; Hannibal, &c. E. Co. v. Missouri Biver Packet = 23 How. 175; 1 Wall. 254; 11 id. 459; 94 U. S. 382;
Co., 125 id. 271 (1888), cases; Swann v. Jenkins, 82 Ala. 95 jd. 10; 34La. An. 791.
483 (1886); Omaha Horse E. Co. v. Cable Co., 30 F. E. a See 1 Greenl. Ev. § 66.
328 (1887), cases. Limitation on legislative grants, 26 < Exp. Siebold, 100 U. S. 384 (1879).
Am. Law Eeg. 65-71 (1887), eases. 6 Atlantic & Gulf E. Co. v. Georgia, 98 V. S. 365 (1878);
•SlideU V. Grandjean, 111 U. S. 437 (1884), Field, J. 54 Ga. 401; Branch v. Jesup, 106 U. S. 478 (1883); 21
' « Indiana v. Milk, 11 Biss. 205 (1882), Gresham, J. Wall. 175; 111 U.S. 270.
 GREEN GUARANTEE
496

Upon indictment for a particular crime, the accused Gross neglect or negligence. Extreme
may be convicted of a less offense included in the
want of care; the absence of ordinary or
crime charged. But at common law, under an indict-
reasonable care and skill. See Care ; Neg-
ment for felony, there cannot be conviction for a mis- ligence.
demeanor.' See AcQDiTTAL, Former.
See Major, In se; Merger. Gross receipts. All receipts had, undi-
GREEN". See Bag. minished byexpenses or other deductions.
GREENBACK. A popular name ap- Compare Earnings, Gross. .
plied exclusively to United States treasury In gross. 1. In the entirety; as, a sale
notes. in gross, q. v.
When an indictment charges larceny of treasmy 3. Independent of; not annexed to an-
notes, the proof n^ay be that the notes were '* green- other: as, a common, a power, a right in
backs." '
Originally, a nick-name or slang word, derived from gross. See Common, 3 ; Easement, Append-
the color of the engraving on the back of the cur- ant; Power, 3.
rency. The fact that the word, from its convenience, . GROUND. 1. Land; soil; earth. See
Jias come into common use, does not make it of itself Land.
a proper designation in ^n indictment.' See Tender,
May include an improved town lot.'
Legal.
GroTind-rent. A rent reserved as the
GRETNA-GREEN. A " Gretna-Green
consideration of a conveyance of land in
marriage " was a marriage solemnized in fee-simple.
Scotland by parties who went there to avoid
Oround-landlord. The grantor of such an
the delay and formalities required in Eng- estate.
land.
Kent payable to the grantee, who erects and leases
Gretna-Green, being the nearest place across the
boundary line, was the more generally resorted to. hoTises upon the land, is called the "builder's rent."
See further. Rent, Ground-rent,
Statute of 19 and 20 Tict. (18S6), c. 96, requires that
at least one of the parties shall have his or her usual 3. "Good ground" to believe or to act
place of residence in Scotland, or shall have lived means simply good cause.2
there twenty-one days preceding the marriage.* Ground of action. The foundation,
In the United States, the term describes basis, or data, upon which a cause of action
rests.
marriages celebrated between residents of a
State who go to a place beyond and yet near GROWING. See Crop.
to the boundary line of an adjoining State, GRUDGE. See Malice ; Prejudice.
on account of some advantage afforded by GUARANTEE.^ 1, v. (1) To engage to
the law of that State. do a thing ; to assure, stipulate, or covenant
solemnly.
GRIEVOUS. See Assault; INJUBY.
GROCERIES. See Provisions. "The -United States shall guarantee to every.
Whether wines and liquors are groceries is a ques- State . . a Eepublioan (g. v.) Form of Govern-
tion of fact. 5 I
Shovels, pails, baskets, and the like, are not, al- (3) To engage that another will do as he
ment." 4
though usually kept in a country grocery store.' Sefi has promised.
Tamily, Use.
3, n. The person with whom such engage-
GROSS. Great, large; entire, undimin- ment is made.
ished, whole; general; extreme. See En-
gross. Guarantor. He from whom the engage-
ment proceeds.
Gross average. General average upon
To guarantee may be equivalent to to promise.'
ship, cargo, and freight. See Average. Guaranteed. Warranted, preferred: as,
Gross earnings. The whole amount of
guaranteed stock.6 See Stock, 3 (8).
earnings received. See Earnings; Profit,
Net. Guaranty. (1) Solemn assurance, cove-
nant, or stipulation that something shall be
' Hunter v. Commonwealth, 79 Pa. 505 (1875), cases.
s Hickey v. State, SB Ind. 2.3 (1864), Davison, J. 1 Ferree v. School District, 76 Pa. 378 (1874).
s Wesley v. State, 61 Ala. 287 (1878), Manning J. See = Supervisors v. Pabst, 64 Wis. 244 (1885).
Grant v. State, 55 id. 809 (1876). ' F. garantir, to warrant, lit., to guard, keep. See G.
* See 2 Steph. Com. 259, note; Brook v. Brook, 9 * Constitution, Art. IV, sec. 4.
H. L. 193 (1861). •Thayer i>. Wild, 107 Mass. 458 (1871); MoNaughton
' Niagara Ins. Co. u De Graff, 12 Mich. 185 V. Conklings, 9 Wis. *320 (1859).
•rieteher v. Powers, 131 Mass. 335 (1881). •Taft V. Hartford. &c. E. Co., 8 E. I. 333 (1866).
 49r
GUARANTEE GUARANTEE

or be done : as, the guaranties in the Consti- judgment and execution, unless it appears that such
tution and Amendments thereto. proceedings can produce no beneficial results.'
Quaranty clause. Specifically, section four of ar- Absolute guaranty; conditional
ticle four of the Constitution, guaranteeing a republi- guaranty. A guaranty that a note is col-
can form of government to each State. See Guaran- lectible isa conditional promise binding upon
tee, 1.
the guarantor only in case of diligence. To
(3) Distinctively, a promise " to answer for perfect the obligation so as to render him
the debt, default or miscarriage " of another liable thereon, the guarantee must use dili-
person. gence in the endeavor to collect his note, for
This by the statute of frauds (g. v.) must be in writ-
ing and be signed by the guarantor. it is a condition precedent. The inchoate ob-
The contract by which one person is bound ligation does not become absolute until the
to another, for the fulfillment of the promise guarantee has performed the condition on his
or engagement of a third party.'
Usually, a collateral undertaking to pay Contimiing guaranty. An undertak-
the debt of another in case he does not pay ing to be responsible for moneys to be ad-
vanced or goods to be sold to another from
part. 2
it.2 time to time.'
An undertaking by one person that an-
other shall perform his contract or fulfill his General guaranty; special guaranty.
obligation, or that, if he does not, the giiar- A special guaranty operates only in favor of
antor will do it for him.^ the person to whom it is addressed ; a gen-
May also mean security or lien ; as, in an eral guaranty is open for acceptance by the
agreement that lumber should be held as public generally.
G<iaranties are sometimes further classified as such
guaranty for the payment of a debt.*
as are limited to a single transaction, and such as em-
An engagement to pay in default of solvency in the
brace continuous or successive dealings.
debtor, provided due diligence be used to obtain pay-
A guaranty is a contract in and of itself; but it also
ment from him. A contract of " suretyship " is a di- has relation to some other contract or obligation with
rect liability to the creditor for the act to be performed
reference to which it is collateral; and it always re-
by the debtor; whereas a "guaranty" is a liability quires a consideration. When executed at or about
only for his ability to perform this act. A "surety " the time of the execution of the main contract, as part
assumes to perform the contract for the principal
of one transaction, one consideration may support
debtor if he should not; a "guarantor" undertakes both contracts; so also where the guaranty is exe-
that his principal can perform, that he is able to per-
cuted in pursuance of the assignment of the main con-
form. The undertaking of a "surety" is inunediate
and direct, that the act shall be done, and, if not done,
The real party in interest is now entitled to main-
then he is to be responsible at once; but from the tract.*
tain an action for damages arising from a breach of
nature of the imdertaking of a "guarantor," non- such contract in his own name, although he was not
ability (insolvency) must be shown.^
originally privy to it. That is, both equitable and
A " guarantor " insures the solvency of the debtor; legal assignments now are equally cognizable in a
a " surety " Insures the debt itself. A surety must de- coini: of law.
mand proceedings, with notice that he will not con-
tinue bound unless they are instituted; whereas a A special guaranty -contemplates a trust in the ad-
guarantor may rely upon the obligation of the creditor dressee, and no cause of action arises thereon, except
upon compliance with its conditions by such person.
to use due diligence to secure satisfaction of his
Until a right of action has arisen, the guaranty is not
claim. ^
assignable.
To enable a creditor to enforce a contract of guar-
A consideration is necessary; if it is not acknowl-
anty, he must exercise "due diligence" to enforce
payment from the principal. That is, the creditor edged, itmust be proved.
Guaranties are construed so as to accord with the
must bring suit within a reasonable time after the ma-
, turity of the claim, and duly prosecute the same to apparent intention of the parties. Where the lan-

'2 Pars. Contr. 3, 26; Story, Prom. Notes, § 457; 3 ' National Loan, &c. Society v. Lichtenwalner, 100
Kent, 121. Pa. 103 (1883), cases, Paxson, J.; 26 Am. Law Eeg.
'See Dole v. Young, 24 Pick. 252 (1837), Shaw, C. J.; 129-47, 201-318 (1687), cases; 18 F. R. 136; 37 Conn. 37; 2
Parker v. Culvertson, 1 Wall. Jr. 160 (1846); Hill v. N. Y. .949; 60 id. 444; 11 Ohio St. 168; 13 R. L 119; 7
Smith, 34 How. 286 (1858). Humph. 539; 20Vt. 503.
'Gridley v. Capen, 73 Ul. 13 (1874), Breese, C. J. "Edwards, Bills, 238; 2 Daniel, Neg. Inst. § 1769; Allen
• Wilkie V. Day, 141 Mass. 72 (1886). V. Rundle, 60 Conn. 20-23 (1882), cases.
» Reigart v. White, 52 Pa. 440 (1866), Agnew, J. s Buck V. Burk, 18 N. Y. 343 (1858), Selden, J.; Addi-
'Kramph v. Hatz, 52 Pa. 589 (1866), Woodward, C. J. son, Contr. 668.
See also 21 Cent. Law J. 6-9 (1885), cases. • Briggs V. Latham, 36 Kan. 209 (1887), Valentine, J.
(33)
 GUARDIAN 498 GUARDIAN

guage is ambiguous, the surrounding circumstances Their rights and powers are local. By comity only
may be looked at. When the meaning is ascertained, is anything conceded in another State to the claims of
the guarantor is entitled to the application of the the guardian of the domMcil. It is usual, however, to
strict rule governing the contracts of sureties, and appoint in a foreign State the guardian of the domi-
cannot be held beyond the plain terms of the con- ciliary court."
tract.' See further Constrdction, Liberal. Guardian ad litem. A person appointed
As a principle, a guaranty is not negotiable; it
by a court to look after the interests of an
may, perhaps, be made so by negotiable language.''
The negotiation of a bill or note is not a guaranty. ^ infant when his property is involved in liti-
The rule requiring notice of the acceptance of a
guaranty applies only where the instrument is merely He manages the defense of an infant defendant,
an offer or proposal, acceptance of which Is necessary where there gation. 2 is no parent, or other guardian. The
to mutual assent. Made at the request of the guar- power of appointing such a guardian is incident to
antee, its delivery constitutes the contract. The same every court.' \
result follows where the agreement to accept is con- He is a species of attorney, whose duty is to prose-
temporaneous with the guaranty, and is its considera- cute for the infant's rights, and to bring those rights
tion. An unconditional guaranty of advances is a directly under the notice of the court. He can do
waiver of demand of i>ayment, and notice of the nothing to the injury of the infant. His duty ends
debtor's default to the amount of the advances, etc. when the suit ends, when it is prosecuted to final judg-
Delay in giving notice, when required, is a defense to ment. Since he may be required to pay the costs of
an action to the extent of the loss or damage proved. the action, a person cannot be compelled to serve
Notwithstanding that the contract is the obligation of against his consent. Anciently the custom was to ap-
a surety, it is to be construed as a mercantile instru- point an officer of the court. He may have reimburse-
ment in furtherance of its spirit, and, literally, to pro- ment for costs and expenses out of the infant's, estate.'
mote the convenience of commercial intercourse.* See Friend, Next.
See Frauds, Statute of. III (2); Letter, 3, Of credit; General guardian. A guardian who
Promise, Collateral; Surety; Warrants'. has general charge of the person and prop-
GUAEDIAW.s 1. A keeper,- protector, erty of a fatherless minor. Special guard-
consei-vator ; a warden. ian. A guardian charged with the man-
Guardian of the peace. A person agement of some particular interest; as, a
charged with the duty of securing or pro- guardian ad litem, or a guardian of the estate
tecting the public peac«; a conseicvator of or of the person only.5
the peace. See Peace, 1. Guardian of the estate. A guardian
Guardian of the poor. A person spe- who has been la'tvfully invested with the
cially elected or appointed to administer the power of taking care and managing the
poor-laws. See Poor. estate of an infant. Guardian of the
2. One that legally has the care and man- person. A guardian lawfully invested
agement of the person or the estate, or both, with the care of an infant, whose father is
during his minority, of a child whose father
has died.* Correlative, ward. dead.'
At common law, a general guardian performs the
The authorize.d agent, appointed by law, to take office of tutor of the person and curator of the estate
,care of the ward's estate and manage his affairs.^ as distinguished in the Roman law.'
Domestic guardian. A guardian ap- Statute or statutory guardian. A
pointed at the place of the infant's domicil. guardian appointed by last will ; also, a
Foreign guardian. A guardian appointed guardian appointed by a court in pursuance
under the law of another State than that of of a statute.
the infant's domicil.
' Hoyt V. Sprague. 103 V. S. 631-32 (1880), Bradley, J.
' EvansviUe Nat. Bank v. Kaufmann, 93 N, Y. 276-81 ' See N. Y. Life Ins. Co. v. Bangs, 103 U. S. 438 (1880);
(1883); cases, Ruger, C. J.; How v. Kemball, 2 McLean, Colt V. Colt, 111 id. 578 (1884).
103 (184Q), cases; 2 How. 449; 68 Barb. 355, 3 3 Bl. Com. 427.
2 Story, Prom. Notes, § 481 ; 35 Kan. 211. * Leopold 1). Meyer, 10 Abb. Pr. o. s. 40 (N. Y. Com.
s Central Trust Co. v. Cook County. Nat. Bank, 101 Pleas, 1860), cases; Tucker v. Dabbs, 12 Heisk. 20 (1873);
U. S. 70 (1879), cases. Simmons v. Baynard, 30 F. R. 533 (1887): 2 Story, Eq.
< Davis V. Wells, 104 U. S. 159^ 163-66 (1881), cases, § 1352;,Turrentine V. Daly, 82 Ala. 208 (1866),— final ac-
Matthews, J. count; Gates V. Pickett, 97 N. C. 26 (1887),— selling land
' F. garder: A. S. weardr\ Ger. marten, to watch, (local); Hinton v. Bland, 81 Va. 592-43 (1886),— of luna-
have ward. See G. tic; Story, Eq. PI. §70.
' Bass V. Cook, 4 Port., Ala., 392: Reeves, Dom. Rel. » See Colt V. Colt, 111 U. S. 578 (1884).
«311. " Nicholson v. Spencer, 11 Ga. 609 (1852),
' Waldrip v. Tulley, 48 Ark. 300 (18S6), Smith, J. ' 1 Bl. Com. 460.
 GUARDIAN 499
GUILTY

Testamentary guardian. A person sonable period, he is chargeable with Interest; and if

named for the ofllce of guardian in the will he trades with the money, the ward may demiind the
of the father of the minor. principal with either interest or the profits. He is
liable for waste as to realty, and for negligence as to
Instituted by Statute 12 Charles n (1660), e. S4.'
personalty. He cannot waive the wa,rd's rights. '
Cruardian by chancery. A guardian ap- The relation ceases at tv^enty-one. As to the per-
pointed bya court of equity or of probate. son of a female ward, ceases with marriage to a minor;
Guardian in chivalry. The lord of the and as to both person and estate, upon marriage to an
adult. Continues, as to his estate, after the marriage
heir of a tenant in capite, and of body and
of a male ward. But neither may marry without the
lands, with no duty to account for profits. consent of the guardian.
Guardian by common law, or in socage. The court will remove a guardian for misconduct;
Where a minor was eiititled to an estate may require a change in his sureties; may compel him
in lands, his next of kin, to whom the estate to file an account; may appoint an interim guardian;
will regulate the maintenance and education (g. v.) of
could not descend, became such guardian the ward; and may even control the actions of a tes-
until the minor attained fourteen. tamentary guardian."
Guardian by nature. The father, and, After the ward becomes of age the guardian is
after his decease, the mother. Has charge bound to exercise proper care of his property until he
of person and estate, and is controlled by a has duly accounted for it, and delivered up possession,'
See Committee, 1; Curator; Discharge, 1; Invest;
court of equity or probate. Tutor; Ward, 3; Witness.
Guardian for nurture. Either of the GUBERNATORIAL. See Government.
parents till the child is fourteen, but relates
GUEST. A traveler, wayfai-er, or a
to the care of the person solely. transient comer to an inn for lodging and
Guardian ad interim or interim. Serves
entertainment. It is not now deemed essen-
while another guardian is out of the juris- tial that the person should have come from a
diction.^
In general, guardians exist either by nature or by
appointment of a court. At common law, a person
distance.''
As inns are instituted for travelers, a neighbor or
friend who lodges in an inn is not deemed a guest. A
became such by relation to the minor, without judi- traveler who is accepted becomes instantly a guest.
cial appointment. In the province of Yorl£, on fail- The length of time a man Is at an inn makes no differ-
ure of the father to name a guardian by will, the
ence; so, although he is not strictly transient, he re-
ordinary made the appointment. The power to ap- tains his character as a traveler. He may, by special
point and to pass upon accounts has been generally contract to board and sojourn, malce himself a
conferred by statutes upon the probate courts.
At fourteen, the child may choose a guardian. "boarder." Numerous late cases hold that a special
agreement as to time and price does not absolutely
A gu^Trdian is a temporary parent. The lord chan- disturb the relationship of innkeeper and guest. These
cellor is the general guardian of all infants in Eng cases indicate a tendency to conform the old rule to
land; in the States, the court of probate is the general
guardian, the nominal guardian being but an agent the changes made in hotel keeping in modern times.*
See further Boarder; Inn, 1; Lodger; Residence.
or officer of the court.*
The reciprocal duties of the persons depend upon
GUILTY." 1. The state or condition of
the nature of the guardianship. A guardian of the one who has committed a crime, a civil in-
person has a right to the obedience of the ward, but
not to his services; and owes the ward protection, ' See Lamar v. Micou, 112 U. S. 463-70 (1884), cases;
but not support. The guardian of the estate is to Boaz V. MUliken, 83 Ky. 638 (1886); Eyster's Appeal, 16
support and educate the ward in a manner suited to Pa. 372 (1851).
the ward's station in life. = See Reeves, Dom. R. 311 ; Schouler, Dom. R. § 283;
Ordinary skill, prudence, and caution are all that 1 Pars. Contr. 134-37; Lord v. Hough, 37 Cal. 600-69
are required of a guardian. Many of his duties are (1869); 1 Johns. Ch. 109. .
» Hudson V. Bishop, 32 F. R. 621 (1887).
regulated by statute. He may lease the ward's realty ;
and he receives the rents and profits thereof. He may ' Curtis V. Murphy, 63 Wis. 6 (1885), cases. Cole, C. J.
sell personalty without an order of court, but not See also Russell v. Ryan, Sup. Ct. Del. (1886), Comegys,
realty; nor may he so convert personalty into realty. Chief Justice.
If he uses money, or neglects to invest it for an unrea- » See Story , Bailm. § 477 ; 2 Pars. Contr. 160 ; Hancock
(Mrs. Gen.) v. Rand, 94 N. Y. 5, 10 (1883), cases; McDan-
1 See 2 Kent, 224-35; Schouler, Dom. R. 400; 4 Johns. iels V. Robinson, 26 Vt. 330-M (1854), eases; Calye's
Ch. 380; 12 111. 431; 37 Cal. 661. Case, 1 Sm. L. C. 211-47, cases; Coggs v. Bernard, ib.
«See 1 Bl. Com. 461-63; 2 id. 67, 88; 2 Kent, 220; 401-6, eases; 16 Ala. 666; 26 id. 377; 33 Cal. 657; 35 Conn.
Eeeves, Dom. R. 311; 1 Pars. Contr. 133; De Krafft v. 183; 25 Iowa, 653; 53 Me. 163; 100 Mass. 495; 145 id. 244;
Barney, 2 Blactt, 710 (1862); Lamar v. Micou, 112 U. S. 12 Mich. 52; S3 Mo. 547; 33 N. Y. 577; 61 id. 34; 36 Pa.
452 (1884); 6 Conn. 500; S3 id. 327. 452; 62 id. 92; 41 Vt. 5; 36 Wis. 118.
»1B1. Com. 463; Sid. 141; 2 id. 461. I ' A. S. gylt, a fine for an offense; an offense.
 300
GUltEAU'S CASE HABERE

jury, or a contempt of court. 2. As a plea,

H.
the judicial confession of a crime charged.
Not guilty. A plea denying the com- H. As an initial, may denote habeas,
mission of a crime or a tort. Henry (king), Hilary, hoc, house.
The plea of "not guilty" raises the general issue; H. B. House bill.
it denies the whole indictment or declaration. In civil
H. C. Habeas corpus; House, of Com-
law, applicable in delicts sounding in trespass or case, mons.
for misfeasance or non-feasance, in ejectment, in gar-
nishment, and in interpleader.^
fl. L. House of Lords.
When an accused person is arraigned (g. v,\ the H. R. House of Representatives.
clerk inquii-es: " How say you, A. B., are you guilty Abbreviations of tlie Latin 7ioc,this, formerly more
or not guilty? " His answer, which is recorded, con- in use than at present, are: h. a. for hoc anno, this
stitutes his plea. If "not guilty," the trial proceeds. year; h. t. for hoc titulo, this title; h. v. for hocverbo
The plea waives objection to the complaint for mis- or his verbis, this word or these words; — the last two
nomer or for neglect to add a place of residence.'' being employed as references.
Where guilty knowledge is an ingredient of a crime, HABENDUM. See Habere, Habendum.
evidence of the commission of other Idndred offenses
about the same time is admissible as tending to prove
HABERE. L. To grasp, lay hold of: to
that ingredient. Many cases of fraud require the ap-
have, hold.
plication of the same principle, — as fraud involves Habeas corpus. That you have the body.
intent, and intent can be deduced only from a variety
of circumstances. Collateral facts, each insufficient
The emphatic words of several common-law
in itself, whose joint operation tends to support the writs issued to bring persons into court for '
charge, or to disprove it, are then receivable. ^
a designated purpose. See particularly, 6,
Where a statute prohibits an act being done, or be- below.
ing done under certain circumstances, without mak- 1. Habeas corpus ad faciendum et recipien-
ing knowledge or intent an in^edient in the offense, dum. That you have the body for doing and
the person doing the act is bound at his peril to see
that the circumstances are such as do not make it receiving. Removes an action into a superior
unlawful,* court : commands the judge of the inferior
Jurors are not called to pass upon a defendant's in- court to produce the body of the defendant,
nocence, but solely whether or not the State has with a statement of the cause of his deten-
proven beyond reasonable doubt an affirmative prop- tion (whence called, also, habeas corpus cum
osition, to wit, his guilt.*
See Confession, 2; Convict; Crime; Doubt; In- causa), to do and to receive whatever the
tent; Negligence;, Will, 1. Compare Culpa. higher court shall decree.
GTJITEAU'S CASE.6 See Delusion; Applica'ble where the simpler writ of habeas corpus
Doubt, Reasonable ; Insanity, 2 (6). ad subjiciendum is inadequate; and grantable of
right, without motion. Operates as a supersedeas.
GrXrW. See Baggage; Shooting-mark; 2. Habeas corpus ad prosequendum. That
Tool; Weapon.
GUITPOWDER. See Explosion; Po- you have the person for prosecuting. Re-
moves a prisoner to the jurisdiction wherein
lice, 3.
GXTTTER. See Drain. it is alleged he committed a crime.
3. Habeas corpus ad respondendum. That
An ordinance requiring lot-owners to keep the
" gutters " opposite their premises in good repair, and you have the person for answering. Re-
free from obstructions, was held to refer to the ordi- moves a prisoner that he may be charged
nary open gutters along the streets, and not to a blind with a new action in a higher court.
ditch or culvert covered with planks and soil.' 4. Habeas corpus ad satisfaciendum. That
1 See 3 Bl. Com. 305; 4 id. 338; Gould, PI. 384. you have the person for satisfaction. Re-
2 State V. Dniry, 13 R. I. 540 (1883); 41 N. H. 407; 1 moves a prisoner into a superior court that
Bish. Cr. Froc. § 791. On withdrawal of plea, see 23
Cent. Law J. 75 (1886), cases. he may there be charged with process of '
3 United States v. Clapboards, 4 Cliff. 303-5 (1874),
execution.
cases, Clifford, J.; Commonwealth v. Jackson, 132 5. Habeas corpus ad testificandum. That
Mass. 18-21 (1882), cases; People v. Gibbs, 93 N. Y. 473 you have the person for testifying. Removes
(1883); 19 Cent. Law J. ^8 (1884).
a person from a place of detention that he
4 United States v. Curtis, 16 F. R. 187 (1883), cases,
Brown, J. ; Halstead v. State, 41 N. J. L. 589-96, 577-84 may give testimony before a court.i
(1879), cases, Beasley, C. J. 6. Habeas corpus ad subjiciendum. That
'^McNair v. Stat©, 14 Tex. Ap. U (1883).
« Reported in 10 F. R. 161. See also 13 Rep. 138, 717. 1 See generally Exp. Marmaduke, 91 Mo. 338, 351
(1886),
7 GUluly V. City 'of Madison, 63 Wis. 518 (1885).
 HABERE 501 HABERE

you have -the body for submitting to and This provision has been copied into the constitutions
of the States.
receiving. Commands the person who has
Congress, by act of March 3, 1863, authorized the
another in detention to produce the body of President to suspend the privilege of the writ when-
the prisoner, with the day and cause of his ever, during the rebellion, in his judgment, the public
caption and detention, to do, submit to, and safety might require it.'
Suspension of the writ simply denies to the person
receive whatever the judge or court award-
arrested the privilege of its use, to obtain his liberty.^
ing the writ shall consider (q. v.) in that be- Not a writ of error, though in some cases, in which
half.' the court issuing it has appellate power over the court
This last, the great and efficacious prerog- by whose authority the petitioner is held in custody,
ative writ, is commonly called The Writ of it may be used with the writ of certiorari for that pur-
pose. Used alone, its purpose is to enable the court to
Habeas Corpus. It is the best and only suf- inquire, first, if the petitioner is restrained of his
ficient defense of personal freedom. '^ liberty. If he is not, the court can do nothing but dis-
It is the remedy which the law gives for the enforce- charge the writ. If there is such restraint, the court
ment of the civil right of personal liberty. . . The can then inquire into the cause of it, and, if the alleged
judicial proceeding mider it is not to inquire into the cause be unlawful, it must discharge the prisoner.
criminal act complained of, but into the right to lib- Wives restrained by husbands, children withheld from
erty notwithstanding the act. The prosecution against
the prisoner is a criminal proceeding, but the writ of the proper parent or guardian, persons held under ar-
bitrary custody by private individuals, as in a mad-
habeas cor^ms, which he may obtain, is nota proceed- house, as well as those under military control, may
^ ing in that prosecution. On the contrary, it is a new become subjects of relief by the writ. But something
suit brought by him to enforce a nght, which he more than moral restraint is necessary: there must be
claims, as against those who are holding him in cus- actual confinement or the present means of enforc-
tody under the criminal process. If he fails to estab-
lish his right to his liberty, he may be detained for
trial for the offense; but if he succeeds, he must be The writ is of right, in the natm-e of a writ of error,
ing it.'
grantable on cause shqwn. The usual course is for the
discharged from custody. The proceeding is one in-
court on application to issue the writ, and, on its re-
stituted byhimself for his liberty, not by the govern- turn, to hear and dispose of the case: but where the
ment to pimish him for his crime. It is of a wholly cause of imprisonment is fully shown by the petition,
civil nature.^ the court may determine that the prisoner, if pro-
The writ was likely used at first to effect relief from
duced, would or would not be entitled to a discharge.*
(irivate restraint. Trace of early use is found in Year The writ affords relief only where the proceedings
Book 48 Edw. HI, 22 (1375); was well understood in the below are entirely void, for any cause, as for want of
time of Henry VI (1422-61); became available against jurisdiction,' or because of the unconstitutionality of
the crown in thereign of Henry VII (1485-1509); in the
time of Charles I (1626-49), was adjudged a constitu- a statute.^
The reviewing power of the Supreme Court, in a
tional remedy.* criminal case, is confined to determining whether the
The availability of the writ, as it obtained at com- lower court had jurisdiction to try and sentence for
mon law, has been facilitated by statutes, particiilarly
by 31 Charles II (1680), o. 2, called the Habeas Corpus the offense.'
Ordinarily, the Supreme Court can issue the writ
Act, another Magna Charta, and by 56 Geo. HI (1816),
only under its appellate jurisdiction,— except in cases
c. 100. '^ Acts having the same general nature and ob- affecting public ministers or consuls, or those in which
ject exist in the various States. A case outside of a
a State is a party.'
statute is governed by the common law. " The act of March 27, 1868 (15 St. L. 44), took from the
The general principles were settled long before our Supreme Court jurisdiction to review on appeal the
national independence, and were in mind when the decision of a circuit court upon a writ of habeas corpus;
power was given to the Federal courts and judges.' and it has no jurisdiction to review such decision on a
The Constitution provides that " The Privilege of the
Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public > 12 St. L. 755. See generally R. S. §§ 751-66, cases.
Safety may require it." ' ■iExp. Milligan, 4 Wall.' 2, 3, 115 (1866); Exp. Merry-
man, 9 Am. Law Reg. 524 (1861), Taney, 0. J.; Exp.
> 3 K. Com. 130; Exp. BoUman, 4 Cranch, 97-99 (1807), Field, SBlatch. 67 (1862); 21 Ind. 370, 472; 44 Barb. 98;
Marshall, C. J.; Tidd, Pr. 296-301, 739. 16 Wis. 360; 1 Pac. Law Mag. 360.
^.Exp. Yerger, 8 Wall. 95(1868). 3 Wales t). Whitney, 114 U. S. 571-72 (1885), MUler.J.
^Exp. Tom Tong, 108 U. S. 659 (1883), Waite, C. J.; < Exp. Milligan, supra.
Exp. BoUman, 4 Cranch, 101 (1807). » Exp. Parks, 93 U. S. 21 (1876).
' See Hurd, Habeas Corpus, 145. « Exp. Rollins, 80 Va. 316 (1885), cases.
63 Bl. Com. 130; 8 Wall.95; 3 Hallam, Const. Hist. 19. ' Exp. Curtis, 106 U. S. 376 (1883); Exp. Carll, ib. 522
«3B1. Com. 137. (1882), cases, Waite, C. J. .
' Exp. Parks, 93 U.S. 21 (1876); Exp. Yeager, 8 Wall. 6 Exp. Hung Hang, 108 U. S. 552 (1883), cases; State
95 (1868). V. Neel, 48 Ark. 289 (1886), cases; 2 Kan. Law J. 225-3J
" Ctonstitution, Art. I, sec. 9, cl. 2.
(1885), cases.
 502
HABIT HANAPER

writ of error. It may still issue its own writ of habeas Habitual. According to or by force of
corpus.' habit or frequent use; origihating in a fixed
A circuit court may discharge a person restrained
habit; habituated.
of his liberty in violation of the Constitution, although
See Character; Drunkaro; Intemperate.
held on an indictment for 'A,n o£l!ense against a State. ^ HABITANCY. Embraces the fact of
Congress has prescribed the jurisdiction of the Fed-
eral courts under the writ; but as it has never particu- residence at a place, together with the intent
larly prescribed the mode of procedure, they have to regard it and make it a home.
followed in substance the rules of the common law.
It is difficult to give an exact definition. * See In-
habitant.
The legislatures of the States not only provide what
courts or officers may issue the writ, but, to a consid- HABITATION. See Dwelling.
erable extent, have regulated the practice under it.^
See Extbadition; Indian. H.ffiBES. L. Heir. In Roman law, re-
Habendum. To have ; for having. Sa- sembled an executor in English law. See
Heib, 2.
bendum et tenendum: to have and to hold.
The initial, emphatic word in that clause of a deed Hsereditas. Inheritance. See Damnum,
which follows the granting part. Determines what Damnosa, etc.
estate or interest is granted; may lessen, enlarge, ex- Hseres natus. An heir born : an heir by
plain, or qualify, but not totally contradict or be
repugnant to, the estate granted in the premises, q. v.* descent. Hseres factus. An heir by ap-
Habere facias possessionem. That you pointmenta; devisee.2
cause to have possession. Habere facias Ifomo est hseres viventis. No one can
seisinam. That you cause to have seisin. be the heir of a living person.
If the plaintiff recovers in any action whereby the No person can be the actual complete heir of an-
seisin or possession of land is awarded him, the writ other till that other is dead. Before that time the
of execution is an habere facias seisinam, or writ of person next in the line of succession is , called the
seisin, of a freehold ; or an habere facias possessionem, "heir apparent," or "heir presumptive." '
or writ of possession, of a chattel interest. These are H^RET nS" COETICE. See Litera
writs commanding the sheriff to give actual possession Qui hseret, etc.
to the plaintiff of the land recovered.* HAIB, May not include bristles.*
At present, an habere facias possessionem puts into
Hair clippers. See Cutlery.
possession of the land a plaintiif who has been suc-
cessful in an action of ejectment; and the writ of HATiF. See Blood; Coin; Defense, 2;
habere facias seisinam, is in vogue in some States in Moiety; Orphan; Sister.
connection with the action of dower." HALLOWEEN. See Nightwalkers;
Habere facias visum. That you cause Wantonness.
to have a view. A writ, and the character- HALLUCINATION. See Insanity.
istic phrase in the same, which directed the HAMMER. "Under the hammer" re-
sheriff to liave land viewed by a jury» fers to public sales by a sheriff or auctioneer.
Habilis. Having: capable, suitable; fit. In Rome, auctioneers stood beside a spear fixed up-
By the canon law, if the pai-ties are habUesad mat- right in the forum ; and the goods were said to be sold
rimonium, it is a good marriage, whatever their ages.' sub hasta, under the spear.
TTATlTT.g A person's habits refer to his HANAPER.5 A bag or basket, kept in
customary conduct, to pursue which he has offices of the court of chancery to receive
a«juired a tendency, from frequent repeti- dues paid for the seals of charters, patents,
tion of the same acts.' commissions, and writs ; then, the exchequer
It would be incorrect to say that a man has a habit of chancery.
of anything from a single act.' Writs issuing out of the ordinaiy court of chancery
(relating to the business of the subject) and the returns
'Exp. Royall, 112 U. S. 181 (1884); Sxp. Terger, 8 thereto were, according to the simplicity' of ancient
Wall. 103 (1868). times, originally kept in hanaperio; and others (re-
lating to affairs of the cro^Ti) were preserved in a
'Exp. Koyall, 117 U. S. 841 (1886).
* See generally People ex rel. Tweed v. Liscomb, 60 little sack or bag; and thence has arisen the distinc-
N. Y. 559 (1875); 18 Cent. Law J. 868-70 (1884). cases. tion of " hanaper ofSoe " and '" petty-bag office," both
* 2 Bl. Com. 298; 4 Kent, 468; 3 Washb. E. P. 436.
> 3 Bl. Com. 412; Tidd, Pr. 1081; 2 -4rch. Pr. 68. ■ Lyman v. Fiske, 17 Pick. 834 (1835), Shaw, C. J.
e See Brightly, T. & H. (Pa.) |§ 1802, 1807. ^ See Borland v. Nichols, 18 Pa. 43 (1849).
' 1 Bl. Com. 436. 3 3 Bl. Com. 208.
s L. habitus; habere, to have oneself, be in a condition. 4 Von Stade v. Arthur, 13 Blatch. 251 (1876).
'Knickerboolier Life Ins. Co. v. Foley, 103 U. S. 354 *L. Ij.hana-perium, a large vase; a vessel to keep
1881). Field, J. cups in; hanajpus, a cup, bowl. Whehce hamper.
 HAND 503 HAND

of which belong to the common-law court in chancery. ■ is, that if a paper, admitted to be in the hands of a
See Petit, Petty Bag, party or to be subscribed by him, is in evidence for
HAlfD. 1. As the member of the body some other purpose, the signature or paper in ques-
with which a thing ia held, an instrument tion may be compared with it by the jury.*
A paper, otherwise irrelevant, may not be put in
used, force or action originated or exerted, or
evidence merely to enable the jury to make a com-
a deed done, is in frequent use. See Ar-
raign; Burn; Death; Mayhem. Compare When a witness is called to prove a signature from
parison.^
his knowledge of the signer's writing, he should be
Main ; -Manus.
Handbill. A written or printed public first cross-examined as to his means of knowledge^''
Handwriting is proved by the writer, by his admis-
notice of something to be done ; as, of a ju- sion, by his writing in court, or by a witness who has
dicial sale of property. either seen him write or is familiar with his hand. The
The number, time, and manner of posting such witness may be tested by* other writings. In England,
bills is regulated by local statute or rule of court. comparison is permitted only as to test paper already
Hand-money. The price or earnest given in court. In some States, comparison with other
papers is allowed. Test papers made for the purpose
to bind a bargain, after shaking hands, or in- are inadmissible. An expert in handwriting may say
stead thereof; the consideration of a hand-
whether in his opinion a hand is feigned or natural.*
sale. See Earnest.
All evidence of handwriting, except in the single in-
Hand-sale. Anciently, among northern stance where the witness saw the document written, is
nations, shaking of hands was necessary to in its nature comparison of hands. It is the belief
which the witness entertains upon comparing the
bind a bargain ; a custom retained in verbal
writing in question with the exemplar in his mind de-
contracts. 2 rived from previous knowledge. Any witness, other-
Uplifted hand. Refel-s to an oath taken wise disinterested, who has had the opportunity of
by raising the right hand toward Heaven. acquiring such an exemplar, is competent to speak of
his belief. It is one of the few instances id which the
Whip-hand. The right hand; the side
law accepts from witnesses belief in facts, instead of
of a road toward the right hand. See Road, facts themselves. If, from having seen the party write
1, Law of. or from correspondence with him, the witness has be-
2. Force; violence. come familiar with his hand, he may testify his belief
as to the genuineness of the writing in question. Tech-
Strong hand. " With strong hand " im-
plies a degree of criminal force, more than nically, comparison of handwriting means a "com-
parison by the juxtaposition of two writings, to
" with force and arms." Statutes relating to ascertain whether both were written by the same per-
forcible entry {q. v.) use the words in describ- son." . . (1) Evidence as to the genuineness of a
ing the degree of force which makes an entry paper may be corroborated by a comparison, to be
or detainer criminal, and entitles the pros- made by the jury, between that paper arid other well
authenticated writings. (2) A mere expert may not
ecutor, under some circumstances, to resti-
make the comparison. (3) Witnesses having knowl-
tution and damages.' edge of the party's handwriting may testify as to the
•' With force and arms " are merely formal words paper; but they are not to make the comparison.
in the action of trespass, and if issue be taken upon (4) Test documents shovdd be established by the most
them, the plaintiff is not bound to prove any actual satisfactory evidence. (6) An expert may be exam-
force.* ined to prove forged or simulated writings, and to give
conclusions of skill; but not to compare a writing, as,
3. Chirography; penmanship; handwriting.
Whatever one has written with his hand ; a note, in suit, with other test papers, and express his
not merely his usual style of chirography.* opinion, when he had no knowledge of the defendant's
haudwriting.'
Comparison of hands, or of handwrit- The rule is that a witness who is introduced to prove
ing. Proving penmanship by its likeness to 1 Moore v. United States, 91 U. S. 274 (1875); Strother
other writing, admitted or proven to be gen- V. Lucas, 6 Pet. *767 (1832); 1 Greenl. Ev. § 578.
uine.
! United States v. Jones, 20 Blatch. 236 (1882).
The rule of the common law is to disallow a com- • Frew V. Clark, 80 Pa. 181 (1875).
parison of hands as proof of signature. An exception « 1 Whart. Ev. §§ 706-40, cases ; Commonwealth v.
Webster, 5 Cush. 301 (1850).
1 3 Bl. Com. 49; Yates v. People, 6 Johns. *303 (1810). » Travis v. Brown, 43 Pa. 13, 13, 1/(1862), cases. Wood-
2 [2 Bl. Com. 448. ward, J. See also Ballentine v. 'SVhite, 77 id. 26 (1874);
»King V. Wilson, 8 T. R. 362 (1799), Lawrence, J.; Aumi'ck v. Mitchell, 82 id. 213(1876); Reese v. Reese, 90
Harvey v. Brydges, 14 M. & W. *443 (1845), Parke, B.; id. 94 (1879); Berrj'hill v. Kirchner, 96 id. 492 (1880);
Lawe V. King, 1 Saund. 81 (16fi8). Lessee of Clark v. Courtney, 5 Pet. *344(1831); Winn
'Commonwealth k. Webster, 5 Cush. 301 (1850), V. Patterson, 9 id. 674-75 (1835); Williams v. Conger, 125
Shaw, C. J. U. S. 413, 397(1888), cases.
 HANGING 504 HARDSHIP

the handwriting of a person must have personal pursue his own true and substantial happi-
knowledge of it, either by having seen him write, or by
having seen writing admitted by him to be his or, with But as utility contradicts the common sense and
his knowledge, acted upon as his, or so adopted into feeling of mankind, utility is not the standard of right
the ordinary business of life as to create a reasonable ness, "i
presumption of its genuineness. Exceptions are, first, andThewrong.''
object of all government is to promote the hap-
where the paper is not old enough to prove itself, and piness and prosperity of the community by which it is
yet is so old that living witnesses cannot be had; then,
other writings proven to be genuine, or to have been established.
Happiness2 •is an inalienable right. In its pursuit all
acted upon as such by all parties, may be offered, and avocations, honors, positions, are alike open to every
experts, by compai-ison, may give their opinion as to
the genuineness; or, second, where other writings ad-
mitted to be genviine are already in the case, when the
The right of men to pursue their happiness
jury may make the comparison without expert aid. one.*
means the right to pursue any lawful busi-
The civil and ecclesiastical law permitted the testi- ness or vocation, in any manner not incon-
mony of experts as to handwriting by comparison. sistent with the equal rights of others, which
The rule varies in the different States. In some, com- may increase their prosperity or develop
parison isallowed between the writing in question and
any other writing shown to be genuine, whether al- their faculties, so as to give them their high-
ready in the case or not, or relevant or not; while in
estright
The enjoyment.5
to follow any of the common occupations
others, it is only permitted as between the disputed
paper and one already in the case and I'olevant to it.^ of life is an inalienable right; it was formulated as
See Forgery; Subscribe. such under the phrase "pursuit of happiness" in the
Under haud and seal, or witness my Declaration of Independence. This right is a large
ingredient in the civil liberty (g. v.) of the citizen. No
hand, etc. Said of an instrument of writ- legislature may deny the right to all but a few favored
ing, and refers, specifically, to the name or individuals, by investing the latter with a monopoly.^
signature thereto. See Seal, 1. See Privilege, 2.
4. Condition or attitude before the law ; as, HARBOR. 1, V. To receive and conceal
in the expression — clandestinely; to secrete, so that another
Clean hands. Upright before the law; who has the right of custody shall be de-
free from fault ; in a position to ask the in- prived thereof: as, to harbor a wife, child,
tervention ofa court of equity.
apprentice, fugitive slave.'
Hand down. To decide, declare, an-
nounce. 3, n. A Port;
Lading; haven Wharf.
or port. See Commerce';
Hand down an opinion. When a member HARD. See Hardship ; Labor, J.
of a court of errors and appeals has written HARDPAN. See Earth.
an opinion in a case and delivered it to the HARDSHIP. Refers to an argument
clerk for transmission to the court whose de- why a thing shoulder should not be allowed
cision has been under review, the opinion is because of the severity of the law as applied
said to be " handed down." to the particular case.
HANGING-. The judgment in a capital Where a statute is clear and imperative, of no
case is, that the prisoner " be hanged by the Settled principles cannot, with safety to the public,
avail.8
neck till dead." ^ be disregarded to remedy the hardship of a special
Hanged is preferred to hung, as the past participle.
Hangman. One who executes a prisoner
'IBl.Com. 41.
condemned to death by suspension by the
2 1 Shars. Bl. Com. 41.
neck ; also, he who holds the office of public
executioner. See Death, Penalty. ' Charles River Bridge v. Warren Bridge, 11 Pet. 547
(1837), Taney, C. J.
HAPPEN. See Contingency ; Occur. ' Cummings v. Missouti, 4 Wall. 321 (1866), Field, J.
HAPPINESS. The foundation of ethits * Butchers' Union Co. v. Crescent City Co., Ill U. S.
767 (1884), Field, J.
or natural law is "that every man should
'Butchers' Union Co., &c., supra. 111 U. S. 762:
Bradley, Harlan, Woods, JJ.
' Fee V. Taylor, 83 Ky. 263-63 (1886), Holt, J. See also ' See Driskill v. Parrish, 3 McLean, 643 (1847); Jones
Bose V. First Nat. Bank of Springfield, 91 Mo. 401-3
V. Van Zandt, 5 How'. 227 (1847) ; Van Metre v. Mitchell,
(1886), cases; Bell v. Brewster. 44 Ohio St. 696, 698 2 Wall. Jr. 317 (1863); 84 Ga. 71 ; 26 id. 593; 5 N. H. 498;
(1887), cases; Smyth v. Caswell, 67 Tex. 673 (1887); as to 10 id. 247; 1 Abb. Pr. 269; 2 N. Car. Law R. 249.
, evidence of identity. 23 Cent. Law J. 31^ (1886), cases. 8 The Cherokee Tobacco, U Wall. 620 (1870).
"4B1. Com. 403. ' Buchanan v. Litchfield, 102 U. S. 203 (1?80); ib. 4(H.
 HARDWARE 505 HEALTH

The certainty of the law is of more importance HAZARD. 1 Danger, peril, risk, but not
than individual convenience. Inconvenience and hard- necessarily the greatest degree. 2
ship are considerations for the legislature.'
See Policy, 1, Public; Possibility. ' Hazardous. Involving danger; accom-
HARDWARE. See Cutleey. panied with risk; perilous: as, a hazardous
contract.
HARVEST. Referring to a season of
the year, the time when crops of grain and " Hazardous," " extra hazardous," " special hazard-
grass are gathered ; does not apply to second ous," and " not hazardous," have distinct meanings in
the business of flre insurance. What goods are In-
crops cut out of harvest time.2 See Crop; cluded under any one designation may not be so well
Emblements. known as to dispense with proof.' See Insubance;
Bisk.
HAUL. See Carey, 1.
Games of hazard. See Game, 2.
HAVE. See May, May have.
HEAD. 1. He who provides for a fam-
"To have and to hold," in a deed, defines the ex-
tent of ownership in the matter granted. ily, q. V.
Kejeoted, if repugnant to the rest of the deed.s 3. The responsible person; the chief; the
See further Habere, Habendum.
principal: as, the head of a department of
HAWKJCR. The primary idea of a government, q. v.
"hawker and peddler" is that of an itiner- 3. Compare Caput ; Poll.
ant or traveling trader, who carries goods Headnote. A statement of the points
about for sale, and actually sells them, in decided in a case, and preceding the printed
contradistinction to a trader who sells goods report thereof. See Syllabus.
in a fixed place of business. Superadded to HEALTH. Exemption from disease;
this (though perhaps not essential), by a freedom from sickness or pain; exemption
"hawker" is generally understood one who from prevailing or unusual disease or con-
not only carries goods for sale, but who
tagion.
seeks for purchasers, either by outcry or by A person is " healthy " who is free from disease or,
attracting attention to them, as goods for bodily ailment, or that state of the system peculiarly
sale, by an actual exhibition or exposure of susceptible or liable to disease or bodily ailment.*
The degree of health ordinarily enjoyed by men in
them, by placards or labels, or by a conven- health, and the physical ability which men of sound
tional signal, like the sound of a horn for the bodies ordinarily possess, places one in the class of
sale of fish.* the "healthy and able-bodied," within the meaning of
A "hawker and peddler" is an itinerant poor-laws, although there may be casual or tempo-
trader, who goes from place to place, or from ' rary illness, or bodily unsoundness.*
" Sound health," as used in contracts for life insur-
house to house, carrying for sale and expos- ance, does not mean absolute freedom from bodily
ing to sale the goods, wares or merchandise infirmity or tendency to disease.' See Intkmperate.
which he carries." Public health. The wholesome sanitary
He generally deals in small and cheap articles, such condition of the community at large ; the ex-
as he can conveniently cany in a cart or on his per- emption of a municipality or region from
son. He may be required to take out a license.*
Hawking. Embraces the business of one any prevailing and unusual disease or mor-
who sells, or offers goods for sale, on the tality ;general health : health of the people.
Laws to secure the general health of the people at
streets by outcry, or by attracting the atten- large are called "public-health laws;" and the offi-
tion of persons by exposing his goods in a cers charged with administering them, the " public-
public place, or by placards, labels, or sig- health board," or "public-health officers," or, briefly,
the " health-board " or " health-oflicers."
nals.''
^ F. hazard, accident; unfortunate throw of dice:
' SUliman v. United States, 101 U. S. 471 (1879); Stew- zar, a die.
art V. Piatt, ib. rm (1879); 3 How. 61; 21 WaU. 178; 103 2 Butterfoss v. State, 40 N. J. E. 330 (1885).
111. 221. = See Pindar v. Continental Fire Ins. Co., 88 N. Y. 364
(1868).
' » Wendall u. Osborne, 63 Iowa, 102, 103 (1884), Beck, J. ' Bell I'. Jeffreys, 13 Ired. L. 357 (1852), Pearson, J.
* Jamaica Pond Aqueduct Corporation v. Chandler,
9 Allen, 168 (1864), Bigelow, C. J. 6 Starksboro v. Hinesburgh, 15 Vt. 309 (1843), Eoyce,
* [Commonwealth v. Ober, 12 Cush. 495 (1853), Shaw, Judge.
Chief Justice. * Morrison v. Wisconsin Odd Fellows' Mut. Life Ins.
" Commonwealth v. Parnum, 114 Mass. 270 (1873), En- Co., 69 Wis. 170 (1884), Lyon, J. See Moulor v. Ameri-
dioott, J. ; Morrill v. Stace, 38 Wis. 437 (1875) can Life Ins. Co., lll'U. S. 335 (1884); May, Ins. § 295,
* Graffty v. EushvUle, 107 Ind. 505 (1886), Mitchell, J.
 HEALTH 606 HEARING

Bill of bealth. A certificate given by to good behavior, or be adjudged guilty of felony. By

26 Geo. 11 (1753), c. 26, quarantine of ships from infected
the authorities of the port from which a ves-
countries was regulated."
sel clears, showing the state of the public In England the public health is secured by various
health at the port. statutes, principally by the Public Heall^ Act, 11 and
Clean hill of health. A certificate that no 12 Vict. (1848), c. 63, the Local Grovernment Acts of
infectious disease exists ; opposed to a touched 18S8, and amendments thereto. These statutes give
large powers to the local authorities for removing
or suspected bill, or a bill actually /oitZ.
nuisances, regulating burials, checking the sale of in-
Board of healtli. A board of officials
jurious food and drink, and otherwise preventing dis-
specially charged with the preservation of ease.
the general health of the people at large. The preservation of health is an absolute right of
Their jurisdiction is, ordinarily, a municipalily, or personal security. '
a State. Injuries to a man's health occur when, by any un-
wholesome practices of another, a man sustains any
National Board of BeaUK Established by
apparent damage in his vigor or constitution: as, by
act of Congress of March 3, 1879, oh. 203, g 1 the sale of bad provisions, by the exercise of a noisome
(20 St. L. 484). Consists of seven members trade, or by the neglect or unskillful management of
appointed by the President, and four mem- his physician, surgeon, or apothecax'y. For such, a
bers detailed from the departments. Their special action of trespass on the case for damages lies.^
An act (supplementary) of New Jersey, approved
duties are to obtain information upon all
March 12, 1880, makes animals with, contagious dis-
matters affecting the public health, to advise eases common nuisances; another act (also supple-
the heads of departments and State execu- mentary), approved March 12, 1884, makes horses
tives, to make necessary investigations at affected with glanders common nuisances; and both
any place in the United States, or at foreign acts authorize destruction of the animals under pre-
scribed conditions. Held^ that the acts are within the
ports, and to make rules guarding against police powers of the State; that they are not within
the introduction of contagious diseases into the prohibition of the Fourteenth Amendment, be-
the country and their spread from State to cause, although they authorize the abatement of nui-
sances in advance of a judicial adjudication of the
State. 1 fact of nuisance, yet they do not make the determina-
The preservation of the public health is one of the
tion as to that fact conclusive, and only permit acts,
chief purposes of local government. Hence, munici- in abating a particular nuisance, to be justified by
pal corporations are liberally endowed with power to
prevent and abate nuisances. Public policy requires proof of it^ actual existence; thirdly,, that the, condi-
that health-officers be not disturbed in the exercise of tions under which the officials may act, by the statute
of 1880, are mere limitations upon their power for the
their powers, unless clearly transcending their au-
benefit of the owners of animals, and their adjudica-
thority.' tion that such conditions exist will not protect them,
All sanitary cordons and preventive regulations
unless the existence of the common nuisance is shown.*
come under the right of preventing more serious in-
juries by stifling the sources of evil. In doing this, See Adulterate; Disease; Police, 2; QuARAif-
health-oifieers must not interfere with the natural TiNE, 2; Sound, 2 (2).
HEAEnSTG. 1. The trial of a suit in
rights of individuals. 3
Power in boards of health to abate nuisances and equity. 2. The session of any court, or of
the causes of them, and to enforce sanitary regula- an-adjunct thereof, for considering the proofs
tions, are very great. The courts have excused an
excessive exercise of power in cases where there was
in a cause. 3. An examination of the testi-
great peril to the public health. But an exercise mony offered against a person charged with
which is clearly unlawful, and has no great public crime.
necessity to excuse it, will be restrained, however As applied to equity cases, " hearing " means the
praiseworthy the motive. The people " shall be secure same as "trial" at law.°
in their persofls and Jiouses from unreasonable searches rinal hearing. The trial of an equity
and seizures." ^ case upon its merits ; as distinguished from
By statute of 1 James I (1603J, c. 31, a person infected
with the plague, or dwelling in an infected house, > 4 Bl. Com. 161; King v. Vantandillo, 4 M. & S. 73
could be compelled to keep his house. If he went into
(1815); King v. Burnett, ib. 272 (1815).
company, he could be punished by whipping, be bound M Bl. Com. 129, 131.
> E. S , 1 Sup. p. 480. ' 3 Bl. Com. 122.
2 Hart V. Mayor of Albany, 3 Paige, 218 (1838); 1 Dil- * Newark & South Orange HorsBlRy. Go. ». £ta«t.
lon, Munic. Corp. |§ 369, 3T4. Sup. Ct. N. J. (Feb. 27, 1888), cases, Magie, J. Same
» Spalding i'. Preston, 21 Vt. 13-14 (1848). case, 37 Alb. Law J. 356.
* Eddy V. Board of Health, 10 Phila. 94 (1873), cases, 'Vannevar v. Bryant, 21 Wall. 43 (1874); Jones v.
Peirce, J. See also Butterfoss v. State, 40 N. J. E. 3S5 Poster, 61 Wis. 29 (1884); 19 WaU. 225; 3 Dill. 463; 40
(1886). Ind. 179.
 HEARSAY 507 HEIFER

the hearing of any preliminary question aris- 4. A.ato pedigree emd relationship: birth, marriage,
and death. Common family tradition is receivable;
ing in the cause, termed "interlocutory." i also, statements of deceased relatives made before a
Further hearing. An adjourned or con- dispute arose ; also, family records, epitaphs, armorial
tinued hearing. bearings, and the like." See Pedigree.
Be-hearing. A new hearing in a mat- 5. As to declarations against interest by deceased
ter once decided ; consideration under a re- persons. This means against pecuniary or proprietary
Interest; not as to incidental matters, and although
examination or re-argument,2
better evidence may be had. But must be brought
A petition for the re-hearing of a case may be re-
quired to be made at the term when the cause was home to an Imputed declarant. ^
first decided. 6. As to business entries. By a deceased or absent
See NoncB, 1; Jdbispiotion, 8; Pboobss, 1, Due; partner or clerk, and made in the regular coui-se of
business, admitted. So of notes by surveyor, counsel,
Remand, 1; Tbioi, 4; Tbul; WiivBR. Compare An-
dirb; Oybr; Pkesencb. bank messenger, notaries, and others. But the entry
must have been made contemporaneously with the
HEARSAY. What is heard as rumored ;
transaction, confined to the matter It was the person's
testimony not a matter of personal knowl- duty to record, and, In its nature, original." See fur-
edge with the witness. ther Entry, n, 1.
That kind of evidence which does not de- 7. As to general reputation when material.* See
Character; Reputation.
rive its value solely from the credit to be
8. To refresh memory, as to extrinsic incidents of
given to the witness himself, but rests also, testimony; as, dates, places, etc.' See Refresh.
in part, on the veracity and competency of 9. As to res gestm. Includes declarations coincident
some other person.' with business acts, and torts; not. If the acts are in
themselves inadmissible, or there exists opportunity
In the largest sense, interchangeable with 'non-
original evidence. This is generally inadmissible, be- for concoction.' See Res, Gestae.
cause of the depreciation of truth from passage 10. As to declarations concerning a party's own
through fallible media; because of non-disorlmination health and state of mind. These chiefly regard state-
by jmies between primary and secondary evidence; ments as to injuries and motives.'
and because it is irresponsible in its first exhibition. < See furtjier Declaration, 2; Evidence; Histories.
Because it wants the sanction of an oath, and HEARSE. See Wagon.
affords no opportunity for cross-examination, is ex- HEATHEN. See Oath; Religion.
cluded.^ HEAVY. As applied to different articles,
Supposes that better testimony may be had; is in-
trinsically too weak to satisfy the mind; under its is a comparative term.
Whether a bale of cotton is a " heavy article " or
^ color fraud might be practiced.'
Admissible m the following cases: 1. As to a wit- "an article of measurement," within the meaning of
a railroad charter. Is a question of fact, to be deter-
neas — what was said in a former trial by a person
now dead, out of the jurisdiction, subsequently incom- mined by a jury, and regulated by proof of custom.*
HEIEER. A female calf of the bovine
petent. Insane, or sick.'
2. As to depositions in perpetuam. But the testi- species, from the end of the first year until
mony must be ephemeral ; taken conformably to the she has had a calf.'
rules of evidence ; be deposited in court ; and the cause "Heifer" and "steer" describe animals of the bo-
be not delayed.* vine species advanced to an age beyond that of a calf.
3. As to matters of general interest, and ancient
A more definite description is " yearling heifer," and
possession. But the witnesses must be disinterested. "yearling steer." "' See Cow.
Includes declarations of deceased persons as to bound-
aries.^ Ancient documents, in proper custody, prove ' 1 Whart. Ev. §§ 201-25, cases; 1 Greenl. Ev. §§ 103-7,
ancient possessions.^'
' Akerly v. Vilas, 24 Wis. J71 (1869), Paine, J. ; Jones = 1 Whart. Ev. §§ 228-37, cases.
V. Foster, 61 id. 29 (1884); Galpin v. Critchlow, 112 ■ 1 Whart. Ev. §§ 238-51, cases; 1 Greenl. Ev. §§ 115-23,
Mass. 343 (1873).
= [3 Bl. Com. 453. < 1 Whart. Ev. §§ 252-50, cases.
»1 Greenl. Ev. § 99: [1 PhUI. Ev. 169. ' 1 Whart. Ev. § 257, cases.
* 1 Whart. Ev. §§ 170-^75, cases. '1 Whart. Ev. §§ 268-67, cases; 1 Greenl. Ev. §§ 108,
' 1 Sreenl. Ev. §§ 168, 98, 124. 112-J4, cases.
•Mima Queen v. Hepburn, 7 Cranoh, 295 (1813), ' 1 Whart. Ev. §§ 268-69, cases; 1 Greenl. Ev. §§ 102,
Marshall, C. J.; Hopt v. Utah, 110 U. S. 681 (1884); 1 110, cases.
Wheat. 8; 8 Wall. 409. 'Elder v. Charlotte, &c. E. Co., 13 S. C. 281 (1879);
'1 Whart. Ev. §§ 177-80, oases. Bonham v. Same, ib. 276 (187P).
" 1 Whart. Ev. §§ 181-84, cases. » Freeman v. Carpenter, 10 Vt. 435 (1838).
» See aement v. Packer, 125 U. S. 321 (1888), oases. "Milllgan v. Jefferson Coimty, 2 Monta. 546 (1877).
"1 Whart. Ev. §§ 185-200, cases; 1 Greenl, Ev. See also 7 Vt. 465; 40 id. 641; 11 Gray, 211; 8 Allen, 588;
§S 127-40. 16 Kan. 294.
 HEIR
HEIR 508

HEIR. See H^kes. 1. At common law, to its nature or quality; and that- the heirs at law
would take the realty, and the next of kin or persons
he upon whom tlie law casts the estate im- entitled to inherit personalty would take the personal
mediately on the death of the ancestor, i estate. But where the gift is directly to the heirs of a
^Correlative, ancestor, q. v. person, as a substantive gift to them of something
Uncontrolled by the context, the person which their ancestor was in no event to take, this
element of succession or substitution is wanting, and
appointed by law to succeed to the real es-
the heirs take as the persons designated in the instru-
tate in case of intestacy.^ ment to take in their pwn right; and in such cases the
'' Simply one who succeeds to the estate of a courts have usually held that the word " heirs' and
" must
the
deceased person. 3 receive its common-law the persons en-
Whoever succeeds to property of an in- titled to succeed to real J of intesta<:y.i
" Heir " is a word of|
testats.i
like, are words of nati!|
In a will, unexplaijied and uncontrolled by " Heirs " may be us^
the context, construed according to its strict in wills, for " children " or^^l&e," ^ or grandchU
technical import, — the person who, by the May mean " devisee," " legatee," or " distributee,^
statute of descent, would succeed to the real May be used where there is no subject to be in-
estate in case of intestacy. A term of de- -only.' herited. ^
A " widow " is an heir in a special, limited sense
scription of a class of persons who, in the
prescribed contingencj^, take the estate;^ A "husband " is neither the heir nor next of kin of
He upon whom the law casts an estate of his wife, in any technical sense. ^
inheritance immediately on the death of the In a devise, " l^eir " is a word of limitation.* See
Shelley's Case.
owner.6 Collateral heir. A relative not of the
The primary meaning is, the person related to one
direct line of descent, but of a collateral line.
by blood, who would take the latter's real estate if he
died intestate. The proper piimary meaning of * ' next Heir apparent. He whose right of in-
of kin " is, thS^erson related by blood, who takes per- heriting isindefeasible, provided he outlives
sonal estate of one who dies intestate, ^^k
In New York " heirs," applied to the su^lssors of the ancestor. 1"
personalty, means next of kin, and does not therefore In this sense, " heir " is in popular use.
include a widow or a husband of an intestate. In a Heir at law; heir at coiamou law, or
few cases in other States " heirs," applied to person- heir general. He upon whom the law
alty, has been held to mean those who by the statute
of distributions take the personalty ,in case of in-
casts'the realty of an intestate.l'
Heir of the body or natural heir. An
testacy. There is much confusion in the English cases
upon the subject.'
heir begotten of the body ; a lineal descend-
No rule can be stated under which all the decisions
can be classified. In general, where there is a gift to
' Fabens v. Fabens, 141 Mass. 399-400 (1886), cases,
a person or his heirs, the word "heirs " denotes suc- ant. 12 J.
C. Allen,
cession or substitution; the gift being primarily to the
person named, or, if he is dead, then to his heirs in 2 Heard d. Horton, 1 Denio, 167-70 (1846), cases; See
his place. In such cases, it has often been held that V. berr, 57 Mich. 373 (1886).
the word should be construed to mean the persons sHaly V. Boston, 108 Mass. 579 (1871); Taggart v.
who would legally succeed to the property according Murray, 53 N. Y. 233 (1873); Jones v. Lloyd, 33 Ohio St.
578-80 (1878), cases; Eldridge v. Eldridge, 41 N. J. E.
12 Bl. Com. 801: Bailey v. Bailey, 25 Mich. 188 (1872), 91 (1886), cases; 42 id. 569; Myrick v. Heard, 31 F, R,
244 (1887),
» Gauoh V. St. Louis M. L. Ins. Co., 88 111. 256 (1878),
Bchoefleld, C. J.; Fabens v. Fabens, 141 Mass. 399 * Woodruff V. Pleasants, 81 Va, 40 (1885),
s Sweet u, Dutton, 109 Mass, 591 (1872); Cushman v.
3 McKinney v. Stewart, 3 Kan. 392 (1869), Valentine, J. ; Horton, 59 N, Y, 151 (1874); Elsey v. Odd FeUows Re-
Cushman v. Horton, 69 N. Y. 151-62 (1874); Fountain lief Society, 142 Mass, 226 (1886).
County Coal, &c. Co. u Beckleheimer, 102 Ind. 76 "Aspden's Estate, 2 Wall. Jr. 445 (1863).
■ (1884). ' Unfriedv. Heberer, 63 Ind. 72 (1878); Rusing v. Rus-
* [Eckf ord v. Knox, 67 Tex. 203 (1886), Willie, C. J. ing, 85 id. 68 (1865); Eisman v. Poindexter, 52 id. 401
« Clark V. Cordis, 4 Allen, 480 (1862), Bigelow, C. J. (1876); Clark v. Scott, 67 Pa. 462-53 (1871), cases.
See also Lombard v. Boyden, 5 id. 2S4 (1862); Loring 'Ivins's Appeal, 106 Pa. 184 (1884).
V. Thorndike, ib. 269 (1862); Rand v. Sanger, 116 Mass. » Daly V. James, 8 Wheat. 534 (1623); 99 Ind, 190.
128(1874); Minot v. Harris, 132 id. 630-31 (1882), cases; >»2 Bl. Com. 208; 8Bush, 115; 5] Barb. 137; 28 Me. 257.
Band v. Butler, 48 Conn. 298 (1880); 101 Ind. 194; 65 " Aspden's Estate, 2 Wall. Jr. 488-38 (1863).
Iowa, 80; 18 B. -Mon. 329; 40 Miss. 768; 15 N. J. L, 404. "Smith 1). Pendell, 19 Conn. Ill (1848); WUliamsf
• Lavery v. Egan, 143 Mass, 392 (1887), Field, J. Allen, 17aa. 84 (1855); Roberts v. Ogbourne, 37 Ala.
' [Tillman V. Davis, 95 N. Y. 24-29 (1884), oases. Earl, J. 178 (1861); Sewall v. Roberts, 115 Mass. 276-77 (1874).
 HEIR 509 HEREDITAMENT

Heir presumptive. He who, if the an- custom, they went to the heir of the owner at his de-
cestor should die immediately, would, in the cease, with the house in which they were used.'
Heirlooms are properly portraits, coats of arms,
present circumstances of things, be his heir;
paintings, and such like, of the former owners of an
but whose right of inheritance may be de- inheritance. 2
feated by the contingency of some nearer A bill in equity will lie tor the specific delivery of an
heir being born.i heirloom to the rightful owner.'
Heirlooms do not seem to be recognized by the law
Heiress. A female heir; but, in law-
of this country.*
language, " heir" includes both sexes. HELD. See Hold, 1.
At common law, "hei^' is a word of inheritance, HELP. See Aid, 1.
necessary to the g^ij^^^^estate larger than a life In an action by A to recover money promised him
Interest. 2 Thi^^^^^^^kc of feudal strictness.' if he would " help " B to effect the sale of land, it was
Unlesscj^M^Hm^^^^^^^rule requiring the use
admitted that A had rendered the required services,
M|ifl||^^^i^niper^^^^^pynonym will supply its and the parties in their pleadings construed the agree-
^^^^^^or will any wo^P^^erpetuity.^
^ To bind his heirs, ani obligor must use the word ment to be that A should use his best e^ort to bring
about the sale. Held, that parol evidence was not ad-
" heir " or its equivalent; not so, to hind an adminis-
trator or an executor. ^ missible toexplain the word.*
See Adopt, 3 ; Descent; Heirloom; Hereditament; HENCE. Compare So.
Inherit; Purchase, S; Eight, 1. HEEEAFTEE. Will of itself make a
2. In civil law, he who is called to the statute prospective, and save pending suits."
" succession " (q. v.), whether by the act of HEEEBY. See Gkaot, 2.
the deceased or by operation of law. HEEEDITAMENT. Anything that
The universal successor is the "testamentary may be inherited, be it corporeal or incorpo-
heir; " and, in cases of intestacy, the next of kin by
blood is the "heir by intestacy" or "heir-at-law." real, real, personaJ, or mixed.'
The former corresponds to the executor, the latter to The word is almost as comprehensive as property.'
the administrator, of the common law. The "heir" Corporeal hereditament. Such thing
administers both the real and the personal estate." as affe^^the senses, as may be seen and
See H^REs. handldj^lncorporeal hereditament. Is
Heirloom. Such personalty as, contrary not the object of sensation, can neither be
to the nature of chattels, goes by special seen nor handled ; is a creature of the mmd,
custom to the heir along with the inheritance,
exists only in contemplation." See Corpo-
and not to the executor of the last proprie- real.
tor.' Corporeal hereditaments consist wholly of substan-
" Loom " is in Saxon geloma^ leoma; limb, mem- tial and permanent objects; all which may be compre-
ber; so that " heirloom " is a limb or member of the hended under the general denomination of "land."'
inheritance ■ Heirlooms are generally such things as An incorporeal hereditament is a -right issuing out
cannot be taken away without damaging or dismem- of a thing' corporate (whether real or personal), or
bering the freehold: as, charters, deeds, and other evi- concerning, annexed to, or exercisable within the
dences of title to land, with the chests containing same. Its effects and profits may be objects of the
them; chimney-pieces, pumps, old fixed or dormant senses: as, an annuity to a man and his heirs, rente,
tables, benches and the like; also, the ancient jewels commons, ways, 'olfaces, franchises: and, formerly,
of the crown. Of the same nature is a monument or advowsoDS, tithes, digiities, and corodies or p£ssjpns, ' °
tombstone, a pew in a church, and like articles which,
by special custom, cannot be devised away from the The right to a seat in a board of exchange is an in-
heir.' corporeal hereditament.''
' Or, again, "loom " meant, at first, an implement for qq.v.
weaving, emd, later, any household article — a table, 1 Cowell; Cok?, Litt. 18 6; Shep. TCuch. 432.
cupboard, bedstead, wainscot, and the like. These ' Brown's Law Diet.
came to be called "heir-looms " because, by special apusey v. Pusey, 1 White & T., L. C. *1109-J1; 1
Story, Eq. | 709.
' >2B1. Com. 208. • 1 Washb. E. P., 4 ed., 20. See Moseley's Estate, 5
' St. Clair County Turnpike Co. ■«. Illinois, 98 U. S. 68 W. N. C. lOS (1877).
(1877). 'Hooker v. Hyde, 61 Wis. 209 (1884).
' 8 Bl. Com. 107. ■ State V. Hicks, 48 Ark. 580 (1880).
<lWaahb. E. P. 56. ' 1 Coke, Inst. 6; 5 Conn. 518; 13 N. Y. 159; 38 Barb.
•Shep. Touch. 369; Coke, Litt. 209, o. 338; 5 Wend. 463.
See also 44 Cal. 253; 40 Ga. 562; 46 Me. 250; 63 id. 879; ' 3 Kent, 401.
45 Pa. 201; 5 id. 461; 69 id. 190; 10E.I. 509; Qlred, L.370. » [2 Bl. Com. 17-18; 28 Barb. 340.
• 1 Brown, Civ. Law, 344; Story, Confl. Laws, § 808. "8B1. Com. 20-81.
' [2 Bl. Com. 427-29, 17. > ' Hyde v. Woods, 94 U. S. 524 (1876).
 510 HIRING
HEREDITARY

In principle there is no difference, as to the acquisi- 1. Having authority to preserve the peace
tion of rights, between corporeal and incorporeal ob-
within a district larger than some other's;
jects. But, with regard to possession alone, as affect- ■
ing title, a difference is introduced by reason of the opposed to pefty: as, a high constable, q. v.
statute of limitations. A grant of land, conferring an 3. Supreme : above others : as, high court.
entire title, is not presumed from mere possession 3. The moi-e heinous : as, high crimes and
short of the statutory period. The statute makes all misdemeanors, q. v.
the provisions deemed necessary for quieting posses-
sions of a corporeal nature, thereby removing these 4. XJninclosed ; below low water-mai-k : as,
cases from the operation of the common law. Con- the high sea, q. v. See also Water- mark.
clusive presumption of title to an incorporeal heredit- 5. Charged with the largest executive
ament isafforded by twenty years' adverse, exclusive, functions : as, high sheriff, q. v.
undisturbed possession.' 6. Directed against the government: as,
See Demesne, Seized, etc.; Disturbance; Eject-
ment; Grant, 1. high treason ; opposed to petty treason. See
Treason,
HEREDITARY. 1. Subject to inherit-
ance, q. V. 7. Belonging to, or for use by, the public
2. Transmitted to descendants : as, heredi- at large : as, in highway. See Way.
tary insanity, q. v. Highest. 1. Superior to any other: as,
HEREIN. May refer to the section, the the highest bid, q. v.
chapter, or the entire enactment in which it 2. The most scrupulous: as, the highest
good faith, q, v.
is used.2
HEREINBEFORE. Compare Ante. HILARY. See Term, 4.
In the clause, in a will, " I give . . to the per- HINDER. To " hinder and delay " cred-
sons, societies and corporations to 'whom I have here- itors isto do something which is an attempt
inbefore made bequests ..." means, as the same to defraud them ; to put some obstacle in the
710W is or exists.^ path, or interpose some time, unjustifiably,
HERESY. See Religion.
before the creditor can realize what is owed
HERETOFORE. In time p8(^t,< See
Jury, Trial by. him out of the debtor's property, l
The hindering and delaying which vitiates an as-
HERIOT.5 A render of the best beast or signment issuch as is sought through covin or malice
other good (as the custom may be) to the on the part of the debtor for his benefit. The fraudu-
lord on the death of the tena!nt of a copyhold lent intent is a question of fact.'* See Conveyance, .
Fraudulent; Delat.
estate.*
Also called "heriot-custom." " Heriot-service "
HIRING. A contract for the use of per-
was, substantially, a rent due upon a special reserva- sonalty, or for services. A species of bail-
tion in a grant or lease 'of lands.' ment for a price or recompense.
HERITABLE. See Inheritance. 1. As to things. A contract whereby the
HERMENEUTICS. ' ' Legal hermeneu- possession and a transient property is trans-
tics " are the rules, as a system, for discov- ferred for a particular time or use, on condi-
ering the meaning of written language. 8 tion to restore the goods as soon as the time
HIDALGO. See Pueblo. is expired or the use performed, together
HIDE. See Abscond ; Conceal. with the price, expressly agreed upon or left
HIDES. See FUR. to be imiplied by law according to the value
HIGrH. Elevated above another; supe- of the service.'
rior; supreme. The hirer acquires a temporary property in the
In some connections, the use is pleonastic. thing, accompanied with an implied condition to use it
with moderation; 'while the owner or lender retains a
reversionary interest in the thing, and acquires a new
I Comettu Ehudy, 80 Va. 713-14 (1885), cases. property in the price or reward. Of such is the loan
' See State ex rel. Smiley v. Glenn, 7 Heisk. 485, 475, of money on interest. ^
480 (1872). 2. As to services. The contracts classed
3 Wetmore v. Parker, 52 N. T. 464 (1873). under this head are contracts for work, for
< Andrews «. Thayer, 40 Conn. 157 (1873); 13 N. Y.
427, 458; 1 N. J. L. 278. ' Bumham v. Brennan, 42 N. Y. Super. 63 (1877),
0 A. S. heregeatu, military apparel. Curtis, C. J.; 74 N. Y. 697(1878).
•2B1. Com. 97. " Burr V. Clement, 9 Col. 8-10 (1885), cases.
' 8 Bl. Com. 421-25. ' [2 Bl. Com. 463. See 2 Kent, 466; Story, Bailm.
* See Lieber, Leg. & Pol. Herm. §359; 24 Am. Law Peg. 238-43 (1686), cases.
 HISTORIES 511 HOLD

lows the statement of the facts and Introduces the

the safe-keeping of personalty, and for the decision of the court thereon.
carriage of persons or personalty.
3. To deduce as a rule or principle; to
"Storage" and" carriage" are in more common
use ph&n any inflections of hire, to designate a con- maintain on the strength of decided cases:
tract tor the custfidy of ordinary merchandise, or for as, the authorities " hold " so and so.
the transportation of persons or property.' S. To assert, declare, maintain; to occupy
The idea of " hiring " may be involved in " employ- the position of propounding as a fact or as
ment," but its application is not restricted to any par-
ticular mode of use." law : as, the plaintiff " holds " the affirmative
SeeBAiL,MBNT; Deposit,!; Looatio. of the issue. See Buhden, Of proof.
HISTORIES. See Book. 4. To cause to be bound or obligated ; to
Historical facts, of general and public notoriety,
confine or restrain : as, " to hold him to his
may be proved by reputation; and that reputation
may be established by historical works of known char-
contract,'' "the obligor is held and firmly
acter and accuracy. But evidence of this sort is con- bound," "persons held to service;" "hold"
fined in a great measure to ancient facts, which do not and "held to bail," or "for court," or "for
presuppose better evidence in existence; and where, trial." Compare, Bind.
from the nature of the transaction, or the remoteness
5. To sit for a specified purpose ; to sit to
of the period, or the public and general reception of
the facts, a just foimdation is laid for general confi- administer justice: as, to "hold court,"
dence. The work of a living author who is within "hold pleas;" to "hold an election;" to
reach of process is not of this nature. He may be "hold a hearing" or "session."
called as a witness, and examined as to the sources 6. To possess by virtue of a lawful title:
and accuracy of his information. If the facts are of
recent date, and within the knowledge of many per- as, ' ' hold a note " or " bond ; "' "hold lands "
sons living, from whom he derived his materials, his or " property," '" to have and to hold" de-
book is not the best evidence. ^ scribed premises; "hold ofiice;" "hold" a
HITHERTO. Restrains the meaning of fund, or lien, a policy of insurance, a share,
a phrase to a period of time then elapsed.* stakes, stocks, etc. Compare Tenure.
HOC. See under H. Whence also freehold, leasehold.
HODGE-PODGE. See Hotchpot. "Holding," relating to ownership in property, em-
braces two ideas : actual possession of some subject of
HOE. See Weapon, Deadly.
property, and being invested with the legal title. It
HOG. Hogs are "cattle," within' the may be applied to anything the subject of property,
meaning of a guaranty of drafts against in law or in equity.'
Under an act forbidding a foreign corporation to
shipments of " cattle." *
And also within a statute requiring fencing to pro-, " acquire and hold " land, a conveyance is not neces-
sarily void. The holding may be subject to the right
tect lands from *' straying cattle." ®
Hogs are " swine; " and the word " hog" will also of escheat.'
include a "sow."' Holder. One who has possession of any-
In a statute punishing larceny, the live animal or thing. One who possesses by virtue of a
its carcass may be meant; ^ and the word will describe lawful title :
a pig four or five months old,* As, a bondholder, fundholder, lienholder, ofBce-
See Animal; Cattle.
,holder, property holder, policy-holder, shareholder,
HOIiD. 1. To decide, adjudge, decree. stakeholder, stockholder, gq. v.
Whence held, decided, ruled, adjudged: as, the Holder in good faith; holder for value;
court "held" the evidence admissible, or the defend-
innocent holder. He is a holder of nego-
ant not liable. In head-notes to reports of cases, fol-
tiable paper or laonds for value, who pays
> [1 Abbott's Law Diet. 565. real, in contradistinction from apparent,
» Hightower v. State, 73 Ga. 484 (1884).
value, without notice of any fraud or ille-
•Morris v. Lessee of Harmer's Heirs, 7 Pet. '568
(1833), Story, J. See 1 Greenl. Ev. § 497; 1 Whart. Ev. gality affecting the instrument.'
§§ 664, 3-38. ' WrtseU V. Charleston, 7 S. C. 99 (1875). See also
'Mason v. Jones, 13 Barb. 479 (1852). Godfrey v. Godfrey, 17 Ind. 9 (1861); Hurst v. Hurst, 7
' First Nat. Bank of Decatur v. Home Savings Bank W. "Va. 297 (1874); Runyan v. Coster, 14 Pet. 1?0 (1840);
of St. Louis, 21 Wall. 299 (1874). 89 N. J. E. 547.
• ChUd V. Hearn, L. K., 9 Ex. 181 (1874). 'Hickory Farm Oil Co. v. Buffalo, &c. E. Co., 32
•'Elvers v. State, 10 Tex. Ap. 179 (1881). F. R. 22 (1887); Eunyan v. Lessee of Coster, 14 Pet. 128
"Whitson V. Culbertson, 7 Ind. 195 (1855); Hunt v. (1840).
State, 55 Ala. 140 (1876); Eeed u. State, 16 Fla. 564 » Montclair Township v. Eamsdell, 107 U. S. 161, 169
(1878). (1882), Harlan, J.; Story, Prom. Notes, | 195; Byles,
• Lavender «. State, 60 Ala. 60 (1877). Biils, 117, 119, 124.
 513 HOME
HOLIDAY

If aqy previous holder of bonds in suit was a bona HOLOGEAPH.i An instrument writ-
fide holder for value, the plaintlCC, without showing ten entirely in the hand of one person, as, by
that he himself paid value, can avail himself of the
position of such previous holder, i a grantor, or testator. Spelled also olo-
See further Bearer; Check; Faith, Good; Nego- graph. Whence holographic, and olo-
tiate, 3.
Holding over; hold over. (1) Retain- An olographic will being " one that is entirely writ-
ing possession of premises after a lease has graphic.2
ten, dated, and signed by the hand of the deceased," a
expired, and without fresh leave from the will partly written upon a printed form is not such.'
owner. Opposed, dictated will.
Generally speaking, holograph wills require no at-
Such tenant holds "at sufferance," and his estate is
destroyed when the owner makes actual entry, or testation.*
HOMAGtE. See Allegiance: Feud.
gives notice to quit. Being once in possession, the
law supposes a continuance authorized. The tenant HOME. While children "remain at
may be required to account for profits made.^ See home," in a will, may refer to the household
Detainer, 2; Entrt, 1, 1; Quit, 2. of which the testator was head.^ See House-
(2) Continuing to exercise the functions of hold.
an office after the end of' one's term, and be- Where a person takes up his abode, with-
fore a'successor is qualified. out any present intention to remove there-
In many cases statutes, and in others common-law from permanently.^ S§e further Abode;
rules, to prevent an interregnum in an office, author-' Domicil; House; Residence.
ize the incumbent to continue to serve imtil a succes-
sor has been regularly qualified. See Vacancy. Homestall. In ancient law, a mansion
HOLIDAY. A secular day on which the
house.
" Stall7 " and " stead " were Anglo-Saxon for place,
law exempts all persons from the perform- seat, fixed spot, station.
ance of contracts for labor or other personal
Homestead. The home-stall, home-place.
service, from attendance at court, and from
The dwelling-house, at which the family
attention to legal proceedings.
resides, with the usual and customary ap-
Legal or public holidays are appointed purtenances, including outbuildings of every
by statute law, or are authorized by custom kind necessary and convenient for family
having the foi'ce of law. These are New use, and lands used for the purposes thereof .s
Year's day, Washington's birthday, Decora- Whence homesteader.
tion day, Independence day, Thanlisgiving
In its popular sense, whjatever is used, be-
day, Christmas day; in some States good ing either necessary or convenient, as a place
Friday ; general election' days ; and other of residence for the family, as contradis-
days appointed by the President or the gov-
tinguished from a place of business.'
ernor of the State for thanksgiving, fasting,
or other observance. Sometimes used as a verb; as, he "home-
On these days public business is suspended, and the steaded his pre-emption." i"
Homestead laws. Constitutional or stat-
presentment and protest of paper is excused, as on
Sunday. Falling on Sunday, the Monday succeeding
^,Gk. holo-graphos, wholly written.
is generall.v observed; paper becoming due on such
2 See La. Civ. Code, art. 1581; Code Civ. 970.
Monday is payable on the Saturday preceding. Paper
due on Decoration day or Good Friday is generally = Cal. Civ. Code, § 1277: Be Estate of Band, 61 Cal.
468 (1883): 14 Rep. 716; 3 Woods, 77.
payable on .the secular day next previous thereto.^ < See 3 Jarman, Wills (B. & T.), 767, note.
The observance of a holiday binds no man's con-
s Manning v. WoflE, 2 Dev. & B., Eq. 12 (N. C. 1838).
science. Itis bis privilege to labor or not, as he pre-
» Warren D. Thomaston, 43 Me. 418 (1857); 3 id. 229;
fers." 15 id. 58; 19 id. 293; 35 Vt. 232.
The expression " legal holiday " of itself imports a ' Diekinson v. Mayer, 11 Heisk. 521 (1872); 4 Bl. Com.
dies non juridicus ^ See Sunday. 225.
s Gregg V. Bostwiok, 33 Cal. 227 (1867), Sanderson, J.;
' Montclair Township v. Ramsdell, ante. Estate of Delaney, 37 id. 179 (1869); 4 id. 23; 16 id. 181.
>See 8 Bl. Com. 150; 3 id. 210; Pickard v. Kleis, 66 See also 63 Ala. 238; 31 Ark. 468; 48 id. 236; 54 111.
Mich, eoi (1885). 175; 12 Kan. 267; 77 N. C. 384; 7 N. H. 245; 36 id. 166;
» See Penn. Acts 25 May, 1874, 12 April, 1869, 8 April, 46 id. 52; 61 id. 266; 63 id. 428; 6 Tex. 102; 23 id. 498; 48
1873; N. Y. Stat. 1873, c. 577. id. 37; 28 Vt. 672; 46 id. 892; 1 Wash. B. P. 352.
< Richardson v. Goddard, 23 How. 43, 41 (1859). » Gregg V, Bostwick, 33 Cal. 828, 826-27 (1867); Be
» Lampe v. Manning, 88 Wis. 676 (1876); 14 Bank. Beg. Crowey, 71 id. 303 (1886).
'» Timber Cases, 11 F. R. 81 (1881).
 HOMICIDE 513 HOMICIDE

utory provisions for the exemption of a cer- year and a day from the time of the giving
tain amount or value of realty, occupied by of the mortal wound, i
a person as his homestead, from a forced If committed with malice, express or implied, it is
sale for the payment of his debts. In some mui-der; if without malice, manslaughter. The in-
jury must continue to affect the body of the victim
States restraints are placed upon alienation till death. If death ensues from another cause, no
by the owner, and in some the property de- murder or manslaughter has been committed.
scends to the widow and minor children free The person who unlawfully sets the means of death in
from liability for his debts. The estate is motion, whether through an irresponsible instrument
or agent, or in the body of the victim, is the guilty
like an estate for life.i cause of the death at the time and place at which his
It is settled: 1. That the object of the homestead
unlawful act produces its fatal result, i
law is to protect the family of the owner in the pos-
session and enjoyment of the property. 2. That that Homicidal. Involving or directed to-
construction must be given such laws which will best ward the killing of a fellow man: as, homi-
advance and secure their object. 3. To divesta home- cidal intent, or monomania.
stead estate, there must be a literal compliance with '* Homicide," as a term, does not necessarily import
the mode of alienation prescribed by statutes." crime: it includes acts which are crimes. The dis-
While a very limited estate in the land, perhaps tinctions denoted by "fratricide," "matricide," "par-
even a leasehold, may support a claim, some estate is ricide," "patricide," "regicide," "sororicide," are not
essential.^ observed in law. But " prolicide," destroying off-
Where the " joint consent " of a husband and wife spring, "foeticide," killing an unborn child, "infanti-
is essential to the alienation of a homestead, the bet- cide," killing an infant soon after its birth, and "sui-
ter rule is to have it evidenced by their signatures to cide," killing one's self, are employed in senses which
the same instrument, before the same officer, and in involve, more or less, commission of crime.
the presence of each other.* Killing is justifiable, excusable, or felonious.
The act of May 20, 1862, is the first homestead law Justifiable homicide. When a life is
of the general government. By it a quantity of land taken in the performance of a duty or the
not exceeding 160 acres is given to any person who is exercise of a right.
the head of a family, or who is twenty-one, and a citi- This is (1) owing to some unavoidable necessity,
zen or intends to become such, on condition of settle- without any will, intention, or design, and without any
ment, cultivation, and continuous occupancy as a
inadvertence or negligence in the party killing, and is,
home for the period of five years." See Abandon;
■Owner. therefore, without blame. Or, it is (2) for the advance-
HOMICIDE.s The killing of any human ment of public justice — by permission: as, where an
officer kills a person who resists lawful arrest; where
creature.' one kills a person charged with felony; killing in dis-
A generic term, embracing every mode by persing ariot, or by a jailer to prevent an escape. In
which the life of one man is taken by the these cases there must be an apparent necessity. Of
this character, also, is killing in war; and so were
act of another.8 deaths in trials by battle. To this grade likewise be-
Criminal homicide consists in the unlawful long killings to prevent forcible or atrocious crimes:
taking by one human being of the life of an-a as, robbery, murder, burglary, arson; but not mere
other in such a manner that he dies within larceny from the person, nor house-breaking in the
day-time. A husband or father may kill for attempted
■See Barney r. Leeds, 51 N. H. 261 (1871); Fink v. rape,'^ — flagrante crimine.
Where one in defense of his person, habitation, or
O'Neil, 106 U. S. 276 (1882); 10 Am. Law Reg. 641-56,
705-17 (1862), oases; 20 id. 1-17, 137-60 (1871), cases,— as property kills another, who manifestly intends and
to the Southern States; Thompson, Homest, &o. 1 1; endeavors by violence or surprise to commit a forcible
4 Cal.'26, 33; 33 id. 226; 11 Ga. 89; 1 Iowa, 439; 18 Tex. or atrocious felony, such killing is justifiable homicide.
415; 34 Wis. 657; 61 id. 374; 103 U. S. 331 ; 1 Bouvier, Law In that case, also, the justification must depend upon
Diet. 754.
the circumstances as they appear to the prisoner.'
2 Howell V. MoCrie, 36 Kan. 644 (1887), cases, Simpson,
Commissioner.
Excusable homicide. When a life is
sMyrick v. Bill, 3 Dak. 292 (1884), cases. lost by an accident in the lawful doing of a
* Howell V. McCrie, 36 Kan. 645 (1887). proper act, or is taken to prevent death or
'R. S. §§ 2289-2317; Seymour v. Sanders, 3 DiU. 441 grievous injury to another person.
<1874). Waiving the right, Linkenhoker's Heirs v.
Detrick, 81 Va. 44, 66 (1883), cases. ■Commonwealth v. Macloon, 101 Mass. 6-8 (1869),
«F. homicide, manslaughter: L. homieidium; or, a cases, Gray, J.
man-killer: L. homicida: homo, a man; asdere, to 2 4BI. Com. 178-82..
till.
sparrish v. Commonwealth, 81 Va. 1, 14-16 (1884),
' 4 Bl. Comm. 177. cases. See in general, 28 Am. Law Reg. 706-8 (1887),
s Commonwealth v. Webster, 5 Cush. 303 (1850), committed from necessity, 1 Law Quar. Rev.
cases;(1886).
Shaw, C. J. 51-61

(33)
 HORSE
HOMO 514

This is (1) by misadventure, where a man doing a Dishonor. To neglect or refuse to accept
lawful act without intention to hurt, unfortunately
kills another: as, where the head of a hatchet flies off or pay commercial paper when due. See
and kills a by-stander; where a parent, teacher, or offi- further DiSHONOE. '
cer causes death from moderate punishment of a child, Act of honor. An instrument drawn by
or of a criminal. The act is in itself lawful ; the effect
a notary, after a bill has been pi-otested, or
is accidental. This species of homicide is to be distin- on behalf of a friend of the maker, who
guished from manslaughter. Or, it is (3) in self-defense,
upon a sudden afli'ay, and with no avenue of escape wishes to protect the maker's credit, by an
from manifest danger to life or great bodily harm.^ acceptance. See Protest, 2, Supra, etc.
Felonious homicide. Killing a human 2, n. A term of respect given, in the course
of address, to persons occupying the higher
creature, of any age or sex, -without justifi-
cation or excuse. 2 judicial positions: as, "his honor," "your
The killing may be of one's self or of another per- honor,'' "their honors;" also, "honorable
son. When without malice, the crime is manslaughter;
when with malice, murder. ^ ' HONOBAEnJM. L. A gift for services
See further Deb'ense, 1; Ihsanitt, 2 (6); Malice;
Manslaughter; Murder; Provocation; Retreat; court."
rendered. ■
Suicise; Threat. A voluntary donation, in consideration of services
HOMO. L. A human being; man, a which admit of no compensation in money; in particu-
lar, adonation to an advocate at law, who was deemed
man ; a person.
to practice for honor and influence, and not for fees.'
Literally, a creature of the earth — humus. Deriva- See Fee, 3.
tives: homage, homicide.
HOOE. "To hook" may not be equiva-
De homine replegiaudo. For replevy-
ing a man. See Eeplevin, 2. lent to " to steal." =
HORN-BOOK. A name formerly given
Iiiber homo. A free man; also, in
to an elementary treatise upon any subject.
Eoman law, a freedman.
Horn-book law. Elementary or rudi-
Liber et legalis homo. A free (good) and
mentary law.
lawful person : a juror, who was to be neither
A "horn-hook" was originally a sheet containing
a bondsman nor infamous.3 the alphabet, mounted on wood and protected with
USTovus hom.o. A new man;- a man par- transparent horn, or simply pasted on a slice of horn. ^
doned of crime. HORSE. A generic term, including, or-
HOMOLOGATE.^ To say the like.B dinarily, the different species of the animal,
Homologation. Approbation ; confirma- however diversified by age, sex, or artificial
tion; ratification, whether by a party or a
court. means.*
In a given connection may not include a " gelding,
In use in civil and Scotch law. *mare, or colt." *
HONESTE VrVERE. See Law. In an action against a ;*ailroad company for dam-
HONESTY. When a transaction is as ages for killing a " horse," an amendment of the com-
plaint describing the animal as a " mare " does not
compatible with honesty as with dishonesty, introduce a new cause of action.*
the former is always presumed.^ An "ass" or "jackass" may be considered as a
A person who keeps in his employ a servant found horse, within the meaning of an exemption law.*
to be dishonest cannot have recourse to the guarantor So may a " mule " be, within a statute giving arem-
of the servant's integrity for a loss occurring during edy for injuries to " horses and cattle " by a railroad
subsequent service.' See Cohsoiehoe; Equity; Faith; company.'
Trust, 1.
' McDonald v. Napier, 14 Ga. 105 (1853); 3 Bl. Com.
HONOR. V, 1. To accept a bill of ex-
88; 19 Pa. 95; Weeks. Atty's, 636.
change, or to pay a promissory note, accord- s Hays v. MitoheU, 7 Blackf, *117 (1844).
ing to its tenor. ' See Ency. Britannica.
< Banks v. State, 88 Tex. 647 (1866); Taylor v. State,
MBl. Com. 183-88. 44 Ga. 364 (1871); Owens v. State, 38 Tex. 5B7 (1873);
'4 81. Com. 188-301. Turley v. State, 3 Humph. 334 (1848); State v. Dunna-
»3B1. Com. 340, 363. vant, 3 Brev. 10 (S. C, 1811).
<Gk. homologein, to assent, agree; homos, the » South & North Ala. E. Co. v. Bees, 83 Ala. 843
same; log-, leg-, to speak. , (1886), cases.
' Syndics v. Gardenier, 9 Mart. o. s. 546 (1831). « Eichardson v. Duncan , 8 Heisk. 333 (1870) ; Ohio, &c.
• Chapman v. Mcll wrath, 77 Mo. 44 (1888). R. Co. V. Brubaker, 47 111. 463 (1868).
'Eoberts v. Donovan, 70 Cal. 110 (1886); Brandt, ' Toledo, &c. E. Co. v. Cole, 50 111. 186 (1869); Brown
Sure. S 368. V. Bailey, 4 Ala. 413 (184S). :
 515
HORTICULTURE HOUSE

A colt may be exempt as a "horse " or as a "work- descended. Hereby two sorts of lands were mixed
beast," if the debtor has nothing more nearly answer- and then divided equally.'
ing the description of a horse.' HOTEL. What in France was known as
A "span of horses " means two horses which may a hotelerie,^ and in England as a common
be connected together or united for the purposes of a
team. A colt four months old is not exempt from "inn "of the superior class found in cities
sale on execution, as fonning with its dam a " span of and large towns, s See Inn ; Tavern.
horses," within the meaning of a statute.^ HOUMAS GEANTS. Certain grants of
But an uncastrated colt two years old is not a " stall- land in Louisiana; as to the history of which
ion."* see the case cited hereto. *
A stalUon, not kept for farm work, is not a " horse "
HOUR. See Business ; Day ; Service, 1 ;
exempt from execution.*
Time.
A horse not broken to harness may still be a " work-
horse "— sn animal of the horse kind fit for service." HOUSE. 1. A dwelling-house; a build-
The exemption of a horse from execution may in- ing divided into floors and apartments, with
clude everything essential to its beneficial use, as, a
four walls, a roof, doors, and chimneys.
bridle, a saddle, etc."
See Ahimal; Battery; Cattuj; Deceit; Gentle; But not necessarily precisely this.*
Health, Boards of; Hiring; Iuplehents; Livery- Involves the ideas of an edifice or structure,
btable; Manageable; Sound, Z (2); Team; War- and the abode or residence of human beings.
ranty, 2. Criminal statutes constantly use "house " as equiv-
Horse-racing. See Game, 2. alent to " building." A term indicating the particular
Horse-railway. See Railroad. purpose to which a building is applied may be pre-
HORTICTJIiTUIlE. See Agriculture. fixed ^as in State-house, court-house, school-house.
HOSPITAL. See Charity, 3. In " out-house," buildings that are not dwellings, but
HOSTELEB. See Hotel; Inn. merely appendages to some dwelling, are included.
When a dwelling is meant, "dwelling-house" or
HOSTILE. See Embargo; Enemy; Pos- " mansion-house " is us'^ally and properly employed.*
session. Adverse. While "house" is broader than "dwelling-house,"
HOTCHPOT.7 Blending properties be- it is narrower than "building."'
Does not necessarily mean a whole building; is
longing to two or more persons in order to
make an equal division. often applied to a separate apartment."* '
May mean " messuage " — land and structure; as in
Also spelled hodge-podge, hotch-potch, hotspot. a will, and in statutes exempting property from tax-
As, where advancements (q. v.) are treated as re-
turned, and the estate as a whole divided anew. The law of England has so particular and tender a
"Hotch-pot meant, originally, a pudding: for in a ation.^
regard to the immunity of a man's house that it styles
pudding is put one thing with other things." ^ it his " castle " and will not suffer it to be violated
By this metaphor our ancestors meant that lands in
with impunity. Whence the aphorism, "every man's
partition among co-parceners, given in frank-mar- house is his castle." For this reason, no outside door
riage, and lands descending in fee-simple, should be can, in general, be broken open to execute civU pro-
mixed or blended together, and then divided in equal cess; though, in criminal causes, the public safety
portions among all the daughters of their ancestor. supersedes private. Hence, also, in part, arises the
, . An incident to an estate is co-parcenary. If, to
advance a daughter in marriage, an estate-tail in lands
was given her, and aftemard lands descended from 1 a Bl. Com. 190-91, 517. See Comer v. Comer, 119
m. 179 (1886).
the donor to her and her sisters in fee-simple, she had
no share in the latter unless she agreed to divide her = From hostel, Latin hospes, d stranger who lodged
advancement in equal proportion with the lands so at the house of another; also, the master of a house
who entertains travelers or guests.
'Winfrey v. Zimmerman, 8 Bush, 588 (1871); Mallory ' Cromwell v. Stephens, 8 Daly, 21 (1867), Daly, F. J.;
V. Berry, 16 Kan. 295 (1876). Compare Carruth v. ib. 200; 54 Barb. 316; 4 Duer, 116; 33 Cal. 557.
Grassie, 11 Gray, 211 (1858); Johnson v. Babcock, 8 Al- « Slidell V. Grandjean, 111 V. S. 412 (1884).
len, 583 (1861). « Daniel v. Coulsting, 49 E. C. L. *125 (1845), Tindal,
> Ames V. Martin, 6 Wis. *362 (1858). C. J. ; Surman v. Darley, 14 Me. & W. 185 <1845) ; 2 Man;
'Aylesworth c^. Chicago, &c. B. Co., 30 Iowa, 460 & B. 514; 8 Baru. & C. 461 ; 1 Car. & K. 533.
(1870). •State V. Powers, 86 Conn. 79 (1869), Parke, J.; 4 Bl.
* Robert v. Adams, 38 Cal. 383 (1869) ; Allman v. Gann, Com. 221,824; 7Biss. 271.
29 Ala. 242 (1856). ' State V. Garity, 46 N. H. 62 (1865).
»Noland v. Wickham, 9 Ala. 171 (1846); Winfrey v. s Quinn v. People, 71 N. T. 568-74 (1878), cases; Com-
Zimmerman, 8 Bush, 588 (1871). monwealth V.Bulman, 118 Mass. 466 (1875).
•Cobbs«. Coleman, 14 Tex. 598 (1855); Dearborn v. 'Rogers v. Smith, 4 Pa. 101 (1846); McMillan v. Sol-
Phillips, 21 id. 451 (1858). omon, 42 Ala. 358 (1868); Coimcil of Richmond v. State,
'F. hochepot, shake-pot; a medley,— Skeat. 5 Ind. 337 (1854); Trinity Church v. Boston, 118 Mass.
"Littleton, IS 267, 55; 3 Coke, Litt, ch. 12. 165 (1875).
 HOUSE
HOUSE 516

animadversion of the law upon eavesdropping, nui- house; implies the idea of a domestic establishment,
sances, incendiaries; and for this reason a man may of the management of a household.'
assemble people together lawfully, to protect and de- House of correction. A prifeon for the
fend his house.' confinement, after conviction, of paupers
A man may defend his house even to the taking of
who refused to work, and vagrants.
life, if apparently necessary to prevent persons from
forcibly entering it against his will, and when warned Established in the reign of Elizabeth.'
not to enter and to desist from the use of force. But For idle and disorderly persons, parents of bas-
tards, beggars, servants who run away, trespassers,
the law doesnot sanction taking life to prevent a mere
trespass upon real estate.'' See Domus, Sua, etc. rogues, vagabonds, spendthi-ifts, and the like.*
A landlord might not formerly break open a house House of ill-fame. A brothel or bawdy-
house.
to make a distress; that would be a breach of the
peace. But when he was once in the house, he might A synonym for " bawdy-house." Has no reference
break open an inner door.^ See Mansion-house. to the fame of the place, but denotes the fact; proof
Ancient house . Ahoiisewhiohhas stood of the fact may be aided by proof of the tame.*
for twenty years. Such resorts are public nuisances: they draw lewd
persons, endanger the peace, and corrupt the man-
In England, such house acquires a prescriptive"
right to support from the adjoining soil. In the United
States, as a rule, each land-owner has a right to the A flat-boat may be kept as such a house.'
ners.*
A house of prostitution is a constant menace to the
support of his ground in its natural state from the ad- good order of the community. It is a nuisance and
joining land, but not for buildings.* See Support, 2. the keeping of it a misdemeanor at common law. Its
House-breaking. Breaking and enter- suppression, with punishment, are proper subjects of
ing the dwelling-house of another with in- police regulation. In one form or another the author-
tent to commit a felony therein, irrespective ity to prohibit and suppress is given to' cities and
of the time of day. Compare Burglaky.
See further Fame, Ill-fame; Bawdy-house; Lkwu;
towns.'
Household. A family; also, pertaining Patronize.
or appropriate to a house or family: as, House of refuge. A public institution
household furniture, goods, stuff. See FOE- for the confinement of incorrigible youth.
NITUEE.
Mansion-house. In the law of burglary,
Persons who dwell together as a family.* a dwelling-house.
Household goods. Articles of a permanent If a house, stable, or warehouse be parcel of the
nature, not consumed in their enjoyment, mansion-house, and within the same common fence,
that are used, purchased or otherwise ac- though not under the same roof or contiguous, a burg-
lary may be committed therein; for the capital house
quired by a person for his house.s
Not then, such articles as potatoes, bacon, vinegar, protects and privileges all its branches or appurte-
nances, if within the curtilage or home-stall. A
and salt, especially when held for sale or barter.'
Householder. The head of a household; chamber in a college is the mansion-house of \3a&
owner. So also is a room or lodging in any private
the person who has charge of, and provides house the mansion, for the time being, of the lodger,
if the owner does not dwell in the house, or if he and
for, a family or household.'' See Exemption ; the lodger enter by different doors. But a tent or
Family.
, In a statute requiring jurors to be householders, booth is not a mansion-house: the law regards thus
means something more than occupant of a room or highly nothing but permanent edifices.^
Public-house. (1) " Public " may be ap-
' 4 Bl. Com. 223. See also 3 Kan. Law J. 294, 314 plied to a house, either on account of the pro-
(1886) — Chic. Leg. Adv. prietorship, as, a court-house, which belongs
» Davison v. People, 90 111. 229 (1878).
S3 Bl. Com. 11. See particularly Semayne's Case, 1 Aaron u State, 37 Ala. 113 (1861); 21 id. 261; 17 id.
BBep. 91 (1605): 1 Sm. L. O. (H. & W.) 228; Curtis v. 482; 6 Baxt. 622.
Hubbard, 4 Hill, 437 (1842) ; Nash v. Lucas, L. E., 2 Q. B. »3 Steph. Com. 225; 4 Bl. Com. 370, 377.
*S93 (1807). »Tomlin; Laws, Prov. of Penn. (1632).
4 See 2 Kent, 437. * State 1). Smith, 29 Minn. 195 (1888); 28 Mich. 213; 29
6 Arthur V. Morgan, 112 U. S. 499 (1884), Blatchford, Wis. 435; 88 Tex. 603; 1 Bish. Cr. L. § 1088; 2 Whart.
J. defining household effects subject Ho duty imder Cr. L. 1 1451.
» Cadwell v. State, 17 Conn. 471 (1846); State v. Main,
R.'s. §2605.
» [Smith V. Findley, 34 Kan. 316, 323 (1885), Horton, 31 id. 574 U863); McAlister v. Clark, 33 id. 92 (1865);
Chief Justice. State V. Garing, 74 Me. 163 (1882); Commonwealth v.
' Griffln v. Sutherland, 14 Barb. 4B8 (1858); Bowne v. Lavonsair, 132 Mass. 3 (1882).
Witt, 19 Wend. 475 (1838); Woodward v. Murray, 18 ' State V. Mullen, 35 Iowa, 807 (1872).
Johns. •402 (1820); 52 Ala. 161; 6 Bush, 429; 15 B. Mon. ' Rogers v. People, 9 Col. 452 (1886), Helm, J.
447; 110 111. 533; 57 Miss. 288; % Tex. Ap. 448. ' 4 Bl. Com. 224-26.
 HUCKSTER 517 HUSBAND

communicated all the circumstances he knew as to

to the county, or from the purposes for which
the crime and the person of the felon."
it is used, as, a tavern, a store-house, or a
HUMANE SOCIETIES. See Cruelty.
house for retailing liquors.'
HUNDRED. A civil division of a county.
Statutes against gaming in " public-hoiises " have
particularly in view houses that ale public on account Consisted ot ten tithings. So called, because it was
of the uses to which they are put. Whether any equal to a hundred hides of land ; or because it fur-
specified house is public is a question of law, although nished one hundred men In time of war.'
the general question whether a place is public maybe Hundredor. Aninhabitant of a hundred; also, a
a question ot tact.> Compare Place, Public. qualified juryman within n hundred; and, also, the
executive officer of a hundred.''
(8) An hotel or inn, qq. v.
HUNGr. Is sometimes applied to a jury
See Bay-window; Clearing; Curtilage; Disok-
derly; Domicil; Dwelling; Family; Finished; Floor; which fails to agree upon a verdict.
Grant, 2; Health; Heirloom; Incident; Lakd; Mes- HURDLE. In old English law, a species
suage; Nuisance; Search; Servant, 1. Compare of sledge, on which traitors were drawn to
Douns.
the place of execution. 3 See Treason.
2. A body of persons organized for the per- HURON. See Lakes.
formance of business or duties of a pubUc
HUSBAND. A man who has a wife^; a
nature; in particular, a legislative assembly,
or a branch thereof. man legally bound in wedlock to a wife.
May mean the entire number of members; ^ or "Husband and wife" describes persons
merely the members present doing business.' connected by the marriage tie, and the rela-
House of Commons, or of Iiords. See tion signifies those mutual rights and obliga-
Paeliament. tions which flow from the marriage contract.*
At common la u:, husband and wife are one person
House of Representatives. See Assem-
bly; Congress. in law, and he is that person; that is, the legal exist-
ence of the woman is suspended or at least incorpo-
Lower House. The popular branch of a rated into that of the husband, under whose protection
legislature; the house of representatives. she performs everything. Hence, he cannot grant her
Upper House. The Senate. anything, nor contract with her; but she can be hjs
HUCKSTER. Compare Hawker. agent, and take a bequest from him. He must pro-
vide her with necessaries, or she can contract for them
HUE-AlfD-CRY.i In old common law, on bis credit. He pays her ante-nuptial debts; such
puisuing, with horn and voice, felons and of her personalty as is in her possession, or as he re-
such as dangerously wounded another. duces to possession, is his; likewise, the profits of her
lands. Her estate is liable for his debts. She is sued
Statute of 13 Edw. I (1286), c. 1-4, directed' that every
county should be so well kept, that immediately upon and sues with him, unless he is civilly dead. They
felonies being committed, fresh suit should be made cannot give evidence for or against each other. He
from town to town and from county to county, and may chastise her moderately. Either one may have
that hue and cry should be raised upon the felons, and security of the peace against the other. For any
that they that kept the town should follow with hue crime, committed in his presence, except treason and
and cry with all the town and the towns near, until murder, she is presumed to act by his coercion. The
the fugitives were taken. . By statute of 27 Eliz. injuries to his rights are abduction, adultery, and
(1585), c. 13, no hue and cry was sufficient unless made
with both horsemen and footmen. . . The wholp beating.*
By the common law, her money and earnings be-
district was liable to be amerced, according to the law longed to him absolutely. The idea was that as he was
of Alfred, if a felon escaped. Hue and cry could bound to support the wife and the family, he was enti-
be raised either by the precept of a justice, or by a tled to whatever she possessed or acquired. Such
peace-officer, or by any private man who knew that a property then being absolutely his own, was subject
felony had been committed. The party raising it to his disposal without regard to the necessities of the
family, and might be taken in execution by his cred-

As, at common law, the personal property of the wife

iShihagan ti. State, 9 Tex. 431 (1833); 10 id. Ztb, 545
itors.'
12 Ala. 492; 19 id. 538; 20 id. 51; 27 id. 31, 47; 25 id. 78
29 id. 40, 46; 30 id. 19, 524, 532, 550; 31 id. 371 ; 32 id. 596 ' 4 Bl. Com, 293-94; 1 Steph. Hist. Cr. Law Eng. 187.
35 id. 390. ' 1 Bl. Com. 116; 3 id. 34, 161, 353; 4 id. 245, 294, 332,
» Re Executive Communication, 12 Fla. 656 (1868). 411.
'Southworth v. Palmyra, &C. E. Co., 2 Mich. 288 s 4 Bl. Com. 02, 376.
(1851); Greene. Weller, 32 Miss. 669(1856); Frellseni;. « People V. Hovey, 5 Barb. 118 (1849). See Hardy v.
JHahan, 21 La. An. 103 (1869). Smith, 136 Mass. 333 (1884).
* Hue: F. huer, to hoot, shout; or, to foot, i. e., up * 1 Bl. Cora. 442; 3 id. 433; 3 id. 139; 4 id. 28; Bank of
foot and cry: run and cry after the felon,— Wood, America v. Banks, 101 U. S. 243 (1879).
Inst. 370. F. cry de pais. • Jackson v. Jackson, 91 U. S. 124 (1875), Field, J.
 HUSBAND 518 HUSTINGS

passed to the husband upon marriage, she was deprived prevent or dissuade her from living with him is neces-
of this means of supporting her children, and all legal
duties growing out of the marriage were imposed upon She may sue a person who n^aliciously induces him
him. . . Even where the wife possesses separate sary.'
to abandon her, for damages for the loss of support
property, it has been held, independently of statutory and of his society.' See Consortium.
obligation, that she is not compelled to support the Either person may prove the marriage collaterally.
children of the marriage. See Earnings, Separate. * She cannot be compelled to incriminate him. In big-
She is always imder his power. Hence, the disa- amy, the lawful wife cannot prove the marriage.
bilities and safeguards the law places around her. He Neither can testify as to a confidential communica-
is liable for her frauds, torts, and breaches of trust. ^ tion, except by consent. Under enabling statutes,
He, she, or both, may have a remedy for an injury either may testify for or against the other. In suits
to her person or reputation,^ — the right of action in by or against a stranger, they may contradict each
herself alone being given by statute. other. In divorce proceedings, their testimony is
Unless the existing claims of creditors are thereby
closely scrutinized.'
impaired, his settlement of property upon her is valid. In the Federal courts she is not a competent wit-
And he may now make the transfer directly to her, in- ness for or against him in a criminal case, on the score
stead of through a third person.* of public policy.*
An ante-nuptial settlement upon her is valid, if the See also Abandon, 2 (1); Abduction; Acknowledg-
consideration is legal, and she is not a participant in a ment, 2; Adultery; Bigamy; Coercion; Cohabita-
fraud intended upon creditors.* See Settle, 4. tion; CoMMCOTOATiON, Privileged, 1; Condonation;
A gift between them is invalid as against credit- Covert; Cruelty, 1; Curtesy; Desertion, 1; Dis-
ability; Divorce; Dower; Dowry; Elopement; En-
ors.'
She is now the owner of hor separate estate, as if a tirety; Family; Feme; Heir, 1; Jointure; Kin,
feme sole, in most of the States, the common-law rule Next of; Marriage; Necessaries, 1; Paraphernalia;
having been greatly relaxed.' Pin-money; Quarantine, 1; Eelation, 3; Eelict;
But if she allows her money to go into his business, Unity, 2; Whipping-post; Widow; Wife; Witness;
and be mixed with his property, and he uses it for Woman.
purposes of credit, the property all becomes his and HUSBAWDEY. See Agriculture.
he cannot convey it back in fraud of creditors.^ See HUSH-MONEY. See Blackmail.
Separate, 3.
And her separate estate may be held for improve- HUSTINGS.^ 1. A temporary court held
ments which she permits him, being insolvent, to make for the election of members of parliament;
also a court held in London before the lord
toit.»
Either may act as agent for the other, with or with-
mayor, recorder, and sheriffs, with juris-
out compensation ; and the husband's creditors, where diction over actions for the recovery of land
he so uses his skill without an agreement for remuner-
ation, are not thereby defrauded. J" within the city, except by ejectment.^
He has an action for enticing her away, even as " Hustings QiustenguTn) is a court of common pleas
against a parent. Proof of something done tending to held before the mayor and aldermen of London, and
it is the highest court they have, for error or attaint
lies there of a judgment or false verdict in the sher-
» Gleason v. City of Boston, 144 Mass. 27 (1887). iff's court. . . Other cities and towns have had a
» Trust Co. V. Sedgwick, 97 U. S. 308 (1877); 2 Kent, court of the same name." '
149; 4 Saw. 603. 2. A local court in Virginia.
' Shaddock v. Clifton, 22 Wis. 110 (1667): 94 Am. Dec. The Hustings Court of the city of Eichmond has
591-94 (1888), cases. exclusive original jurisdiction of all presentments,
« Jones V. Clifton, 101 U. S. 235 (1879), cases; Clark v. indictments and informations for offenses committed
Killian, 103 id. 766 (1880).
within the city (except prosecutions against convicts
» Prewit V. Wilson, 103 U. S. 24 (1880), cases. in the penitentiary), and concurrent jurisdiction of
» Spelman v. Aldrich, 126 Mass. 117 (1879), cases.
' Eadford v. Carwile, 13 W. Va. 576, 85 <1878), cases;
Vail-i). Vail, 49 Conn. 52 (1881), ca.ses; McCIellan v. Fil- ■ Bennett v. Smith, 21 Barb. 441 (1856); Modisett v.
son, 44 Ohio St. 190 (1886); 20 Am. Law Eev. 366 (1886). McPike, 74 Mo. 639 (1881). .
8 Humes v. Scruggs, 94 U. S. 27 (1876), oases. Her 'Westlake «. Westlake, 34 Ohio St. 626-34 (1878),
contracts, imder statutes, 19 Am. Law Eev. 359-79 cases. Effect of abandonment on her power to con-
(1885), cases. tract, 20 Am. Law Eeg. 745-63 (1887), cases.
« 23 Cent. L. J. 293 (1886), cases. s 1 Whart. Ev. §§ 421-33, cases; 1 Greenl. Ev. §§ 333-
'1 See generally, wife as husband's agent, 31 Alb. Law 47, cases. /
J. 206-7 (1835), cases; he as her agent, with compensa- •United States v. Jones, 32 F. E. 569 (1887); id. 571,
tion, 30 id. 441-45 (1885), oases; without compensation. note. See generally 25 Am. Law Eeg. 353-66, 417-31
King V. Voos, Sup. Ot. Oreg. (1887), cases; 26 Am. Law (1886), cases.
Eeg. 246, 250-53 (1887), cases: 26 Cent. Law J. 259-62 ^ A. S.7iu5#mff, a place of council: A«s, house; ihingf
(1888), cases. As to his canying on business in her cause, council.
name, after she pays some bills, 26 Am. Law Eeg. ' See 3 Bl. Com. 80; 3 Staph. Com. 293,' note.
781-84 (1887), cases. ' Termes de la Ley (1731).
 HYDRAULIC MINING ICE
519

cases with n a space of one mile around the city on ecation in favor of a material-man or lender of money
the north of James river. Also exclusive jurisdiction who acts in good faith. 5. To support an hypotheca-
of all appeals allowed by any State law, or ordinance tion by bottomry, evidence of actual necessity is re-
of the city, from the judgments of the police justices quired. Ifthe fact of necessity is left unproved, evi-
courts, and of all causes removable from them ; of dence isrequired of due inquiry and of reasonable
proceedings for the condemnation, for public use, of ground of belief that the necessity was real and exi-
lands, and of motions to correct erroneous assess-
ments on realty; also, concurrent jurisdiction of ac- It communication with the owner is practicable,
tions for unlawful or forcible entry or detainer.' that must first be had.'
HYDRAULIC MINING. Hypothecation bonds must be recorded by collect-
See Aqua,
gent'
ors of customs.' See Bottomry; Eespondkntia.
Currit, etc.
HYGIENE. See Alcohol. HYPOTHESIS.* In criminal practice,
a theory proposed in explanation of the facts
HYPOTHECATION.2 In Roman law,
in a case, and to establish either guilt or in-
a pledge without possession by the pledgee, — nocence.
the possession remaining in the pledgor. ^
Hypothetical. Assumed for the purpose
A security whereby realty or personalty is
of inference or of opinion.
appropriated or pledged for the discharge of
An hypothetical case consists of a statement of as-
a debt or engagement, with no transfer of sumed facts intended to be propounded to an expert,
property or of possession, the debt being in order to elicit his opinion. Thus, an expert in in-
viewed as tacked to and following the thing.< sanity may say whether a person, under indictment
There is no pure hypotheca in our law. ^p- for murder, would be likely to be predisposed to emo-
preaches to it are, bottomry bonds, maritime liens of tional insanity, upon a statement of facts, admitted or
assumed, supposed to exhibit his individual and family
I.
material -men, and seaman's wages. ^
Hypothecary; hypothecator. One history. See Dexter v. Ball, Expert.

who proposes and makes a contract of hy-

pothecation.
Hypothecation bond. A bottomry or
respondentia bond. I. As an abbreviation, is used for insti>
Evidences a marine hypothecation of a vessel or its tutes, internal, Irish.
cargo, for necessary repairs or supplies.* I. C. C. Inter-State commerce commis-
The hypothecation of a vessel is authorized by the
necessity of obtaining the means to prosecute the
'
voyage, and inability to get the required funds in any I.e.sion
(Usually(reports).
i.e.) Id esi, that is (to say).
other way.' I O U. "I owe you." A popular desig-
Established rules as to marine hypothecation are: nation of a due-bill or memorandum of debt.
1. Liens for repaii-s and supplies, or for funds to pay Consists of those letters, a sum of money, and the
for th^ same, are enforceable only upon proof that
debtor's signature. As it contains no direct promise
the same were necessary, or believed to be necessary. to pay, it is not a promissory note, but a mere ac-
2. Where proof is made of the necessity, and of credit
knowledgment ofindebtedness.^
given to the ship, a presumption arises of a necessity
IB. See Idem.
for the credit. 3. Necessity is proven when such cir-
cumstances ofurgency are shown as would induce a IBI. See Ratio, Ibi, est, etc.
prudent owner, if present, to order the repairs or sup- IBID; IBIDEM. See Idem.
plies, or to provide funds for the cost on the security ICE. Uncut, is an accession or increment
of the ship. 4. An order by the master is sufficient
proof of such necessity to support an implied hypoth- to the land. 6
A riparian proprietor upon an unnavigable stream,
having title to the middle of the stream, owns the ice
■SeeCode, 1887, §3072.
that forms over his half of the water."
"L. hypotheca: Gk. hypo, under; tith-, to place; to
obligate, charge. 1 The Grapeshot, 9 Wall. 141-42 (1869), Chase, C. J.
» See 2 BI. Com. 159. a The Julia Blake, 16 Blatch. 484-85, 490-94 (1879),
< See Herman, Mortgages, §§ 8, 1 ; Taylor v. Hudg- cases: 107 U. S. 432, ante.
ins, 42 Tex. 247 (1875). »E.S.§§ 4192, 4382.
= [Stoiy, Bailm., 9 ed., § 288; The Young .Mechanic, * Gk. hypothesis, a placing under: supposition.
2 Curtis, 410 (1855). 'See 1 Daniel, Neg. Inst. § 36, cases; 1 Parsons,
« The Grapeshot, 9 Wall. 140-41 (1869), Chase, C. J. ; Notes, &c. 25; Story, Prom. Notes, 14; Smith ti. Shel-
The Julia Blake, 107 U. S. 418 (1882), oases, Waite, C. J. ; den, 35 Mich. 47 (1876).
16 Blatch. 472. « Washington Ice, Co. v. Shortall, 101 Dl. 54 (1881).
' Delaware Mut. Safety Ins. Co. v. Gossler, 96 U. S. See also Bigelow v. Shaw, Sup. Ct. Mich. (1887), cases;
648 (1877), cases; The Emily Souder, 17 Wall. 671, 669 34 Conn. 462; 38 Ind. 402; 8 Mich. 18; 30 N. Y. 519; 15
a873). How. Pr. 376.
 ID 520 IDENTITY

But he has no proprietary interest in ice that forms Examples of not fatal variances: Bupp and Bopp; ?
upon the water of a navigable stream adjacent to his Charleston and Charlestown;'' Heckman and Hack-
own shore, unless he first takes and secures it.^ man ; = Hutson and Hudson ; * Japheth and Japhath; »
Since the owner of land bordering upon a flowing Jeffers and Jeffries; "^ Lewis and Louis; ' Penryn and
stream may use a reasonable quantity of the water, Pennyriue;8 Bicketts, Rickets, and Eicket;" Shaffer
he may detain a reasonable portion until it freezes, and Shafer; 'n WooUey and WoUey." Examples of
and cut and sell the ice. But he may not interfere fatal variances: Hanthom and Hawthorn; i^ Spintz
with the beneficial enjoyment of the water by owners andSprinz; " Whortmau and Workman. '«
below him.^ A name need not be correctly spelled in an indict-
Ice upon a pond or stream is of such an ephemeral ment.. When substantially the same sound is pre-
nature as to be more like personal than real property. served, variant orthography makes no difference. ^°
It may be sold by parol as personalty.' See Car- Whether one name sounds like another may be a
load.
question for a jury.'"
To thaw a neighbor's ice is an unlawful conversion If the two names, spelled differently, do not' neces-
of it.« sarily sound alike, the question whether they are idem
Ice fifelds upon navigable rivers must be so guarded sonans is one of fact for the jury." See Name, 1.
that pedestrians will be protected against accident.' IDENTITY. Sameness.
1. In larceny, trover, detinue, and replevin, the
see'AsSidewalk.
to the duty of removing ice from pavements,
thing in question must be identified; so in torts, for
lee-cream. See Mantjfactueer ; Stjn- damage done to specific property; and so in all in-
DAT. , dictments where the taking of property is the gist.
ID. See Idem; Certum; Is. Identity of person must be proven in all criminal
IDAHO. See Tbreitory, 2. prosecutions. '8
In the ordinary case of buying and selling for cash,
IDEM. L. The same.' the identity of the parties is entirely immaterial; and
Referring to a volume, the same series or in many cases where that matter is material, a party
is estopped by his dealing with the other f roin saying
set; also, the same book or page. Abbre-
viated id. Compare Is. that he was mistaken as to the person.'* See Abbak^n;
Confusion, Of goods; Description; Name.
Ibidem. In the very same place : the same 3. Property transferred in fraud of creditors may
section, page, or book. Abbreviated ibid., ib. be subjected to the payment of their claims upon
Idem sonans. Sounding the same ; sub- identification of the property; as, in the case of per-
stantially identical in sound.* Plural idem sonalty given to a wife.^o
One who obtains property by fraud acquires no title
sonantia. to it, but he and all transferees with notice are trust-
Applies to the names of persons substantially the ees for the original owner, who may recover the prop-
same in sound, though different in spelling. In erty as long as it can be traced and identified in its
searches for liens, all spellings of a name which are
pronounced alike are to be noted; and in pleadings,
substantial identity in sound is generally sufficient.
Difference of meaning in the original language, as ' Myer v. Fegaley, 39 Pa. 429 (1861).
?Alvordu Moffatt, lOInd. 366 (1858).
In the Grerman, is not material. Appearance and
■ Bergman's Appeal, 88 Pa. 120 (18T8).
sound, <alone, are impoi-tant. The initial being the < Cato 11. Hutson, 7 Mo. 143 (1841).
same, allowance must be made for slight differences
in the spelling— to which the eye will be directed. ' Morton v. MoClure, 23 111. 357 (1859).
Then, a slight difference should put one on inquiry. » Jeffries v. Bartlett, 75 Ga. 232 (1885).
But the rule does not apply to judgments entered in ' Marr v. Wetzel, 3 Col. 5 (1876).
different initials from those which are usual in Eng- » Elliott V. EJiott, 14 Md. 121 (1859).
lish: as, in Yoest for Joest.' ' Stanley v. Noble, 59 Iowa, 410 (1882)
'» Rowe V. Palmer, 29 Kan. 337 (1883).
" Power V. WooUey, 31 Ark. 462 (1860).
1 Wood V. Fowler, 86 Kan. cases: 14Eep. '=Marx V. Hanthom, 30 F. R. 686 (1887).
'S United States v. Spintz, 18 P. E. 377 (
»Myer v. Whitaker, 15 Abb. N. C. 176 (1878), cases; '* City of Lafayette v. Wortman, 107 Ind. 404 (1886).
Stevens v. Kelley, 78 Me, 450 (1886), oases: 35 Alb. Law 's Smurr v. State, 88 Ind. 506 (1883), oases; 107 id. 410.
J. 4S-3 (1887), cases. '« Siebert v. State, 95 Ind. 470 (1884). See 1 Bish. Cr.
'Higgins V. Kusterer, 41 Mich. 333 (1879); 33 Am. Pr. § 688; 1 Whart. Cr. L. 309.
Rep. 164-68 (1880), cases. "■Commonwealth r. Warren, 143 Mass. 569 (1887), in
■■ Aschermann v. Best Brewing Co., 45 Wis. 266 (1878). which "Celestia" and " Celeste " were found to be
As to value, when unlawfully replevied, see Washing- the same name; other cases cited.
ton Ice Co. V. Webster, 135 U. S. 426 (1888), cases. ■e See 4 Bl. Com. 396; 3 Crim. Law Mag. 387; 34 La.
s Woodman v. Pitman, 79 Me. 456 (1887). An. 1083.
« Commonwealth v. Stone, 103 Mass. 431 (1869). '* Clement v. British American Assurance Co., 141
' Bergman's Appeal, 88 Pa. 133 (1878); Heil's Appeal, Mass. 303 (1886), Morton, C. J.
40 id. 453 (1861). ™ Phipps V. Sedgwick, 93 U. S. 9 (1877).
 521
IDEO IGNORANCE

origiiial or substituted form.i See ad fin. Trust, 1; IGNOMINY. Shame, disgrace, dishonor :
Conceal, 1.
as, in a statute excusing a witness from an-
8. Of literary composition, consists in the senti-
ment and tlie language: tlie same conception clothed swering to save himself from ignominy.i
in the same words must necessarily be the same com- See Criminate.
IGNORAMITS. See Ignoraei.
position,"
S. Identity of designs, etc. See Design, 2; Pat- IGNORANCE. Want of knowledge or
ent, 2.
information, whether of a matter of fact or
IDEO. See Consideration, 1.
of a matter of law. See Illiterate.
IDIOCY. Not the condition of a de-
Ignorance of a particular fact consists in this, that
ranged mind, but the total absence of all the mind, capable of healthy action, has never acted
mindiS upon the fact, because the subject has never been
A congenital disorder, consisting in a de- brought to the notice of the perceptive faculties.'
fect or sterility of the intellectual powers.* Voluntary ignorance. Exists when one
Idiot. One that hath had no understand- by reasonable exertion might have acquired
ing from his nativity.^ knowledge. Involuntary ignorance does-
A person who has been defective in intel- not proceed from choice ; could not be over-
lectual powers from birth, or from a period come by the use of any known means.
before the mind received the impression of Ignorance of a fact sometimes excuses; ignorance
of law, never. In the law of crimes, ignorance of a
any idea.^ ^ fact is regarded as a defect of will. It occurs where a
He is presumed never likely to attain any under- man intending to do a lawful act does that which is
standing. But a man is not an idiot if he hath any unlawful: the deed and the will do not concur.' See
glimmering of reason, so that he can tell his parents, Guilty.
his age, or like common matters. One born deaf, If ignorance of what one might know were ad-
dumb, and blind is looked upon by the law as in the mitted as an excuse, the laws would become of no
same state with an idiot. ^ effect.* See Prescribe.
See Insanity; Lunacy.
"If ignorance of the law was admitted as a ground
IDLENESS. See Vaqkanot. of exemption, the courts would be involved in ques-
rP. Implies a condition precedent, unless tions which it were scarcely possible to solve, and
which would render the administration of justice next
controlled by other words.8 to impossible; for in almost every case ignorance
A word of condition, or of conditional limitation.*
would be alleged, and, for the purpose of determining
To sell property " if it be thought best " means, if the point, the court would be compelled to enter upon
in the course of the administration of the estate it
should be found necessary or advisable to take that questions of facts insoluble and indeterminable." So,
if a person will not read or does not know what he
course. 1° See Best.
signs, or is misinformed as to the effect, he alone is-
" If," m a judge's charge, may not save it from as-
suming the existence of a fact." responsible.^
The maxim that " ignorance of the law excuses no
See Condition; Provided; When.
one " is not universally applicable, but only when
-IFF. See Plaintiff ; Sheriff.
damages have been inflicted or crimes committed. ^
When parties have acted under a mutual mistake
> Third Nat. Bank of St. Paul v. Stillwater Gas Co.,
of law, and the party jeopardized can be relieved
36 Minn. 78 (1886), cases: 26 Am. Law Reg. 253 (1887); without substantial injustice to the other side, a court
ib. 256-60, cases; Fletcher v. Sharpe, 108 Ind. 279 (1886),
of equity will afford redress, especially if the one to
cases: 26 Am. Law Eeg. 71; ib. 74-^2 (1887), cases; 25 be benefited by the mistake invokes the aid of equity
Cent. Law J. 315-21 (1887), cases; 2 Harv. Law Eev. to put him m a position where the mistake will become
28-39 (1888), cases.
2 2B1. Com. 405. advantageous to him.'
' Owings' Case, 1 Bland, Ch. 386 (Md., 1828). 1 Brown v. Kingsley, 38 Iowa, 221 (1874).
* Stewart!). Lispenard, 26 Wend. 314 (N. T., 1841); 1 "Boylan v. Meeker, 28 N. J. L. 279 (1860).
Eedf. Wills, 59, 61,64. s 4 BI. Com. 27.
»1B1. Com. 303; 88111.502. « 1 Bl. Com. 46.
• [Crosswell v. People, 13 Mich. 435 (1865), Cooley, J. ; 'Upton V. Tribilcook, 91 U. S. 50-51 (1875), cases.
Chitty, Med. Jur. Hunt, J. See also Hunt v. Rhodes, 1 Pet. 1, 13-lS
' 1 Bl. Com. 30.3-4. See 4 Johns. Ch. 441 ; 3 Ired. Ch. (1828); 17 Cent. Law J. 422-37(1883), cases; 18 id. 7-10
535; Eay, Med. Jur. Ins. 86, 743; 1 Whart. & St. Med. J. (1884), cases; 2 Flip. 116; 3 Col. 555; 13111. 395; 60 Md.
§ 1 ; Taylor, Med. J. 789-91. 335; 50 Mich. 551, 594; 23 Miss. 124; 76 Va. 315; 62 Wis.
8Crabbe, E. P. §2152. 332; 1 Johns. Ch. 515; 2 id. CO; 6 id. 170; Bisp. Eq. § 187;
» Sutton V. West, 77 N. C. 431 (1877); Owen v. Field, 1 Story, Eq. Ch. V; 2 Pomeroy, Eq. §§ 838-71.
102 Mass. 105 (1869); 18 N. J. L. 36. « Brock V. Weiss, 44 N. J. L- 244 (1882), cases.
'» Chandler v. Eider, 102 Mass. 271 (1869). » Freichueeht v. Meyer, 39 N. J. E. 551, 668-60 (1885),
" Chambers i'. People, 105 111. 418 (1883). cases.
 IGNOEANTIA IMMEDIATE
532

When a party in one State makes a contract with ILLITERATE. Without knowledge of
direct reference to the law of another State, he will be written language ; ignorant.
held to know the law Of the latter State.' See Law, To induce an illiterate person, by false reading, to
Foreign.
subscribe an agreement, may be a fraud upon his
' See also Estoppel; Ignorari; Inquiry, 1; Knowi/- rights, and may even amount to an indictable deceit.'
EDGE, 1; Mistake; Reform.
IGNOEANTIA. See Ignokabi. See Infltience; Reading-.
ILLNESS. See Benefits; Disease;
IGNORARI. Not to know or know of; Health; Languidus.
to have no knowledge of. ILL-PLEADING. See III, 3.
Ignoramus. We do not know it; we
ILL-TREATMENT. See Cruelty;
ignore it. Maltreatment.
If the grand jury think an accusation groundless,
ILLUSION. See Insanity, Compare
they endorse on the back of the bill " ignoramus: " Delusion.
we know nothing of it — the truth does not appear.'
Modern expressions are: "not a true bill;" "no ILLUSORY. See Appointment, 2.
bill; " " not found." A fresh bill maybe referred to a ILL-WILL. See Malice ; Prejudice.
subsequent Jury.^
IM-. .^ prefix from the Latin in, not; in,
Ignorantia. Non-information : ignorance. into, upon. See In, 3.
Ignorantia facti exousat; ignorantia juris IMAGINE. See Treason.
non excusat. Ignorance of fact excuses;
IMBECILITY. Without strength, im-
ignorance of the law does not excuse.
Ignorantia legis neminem exousat. Igno- In a petition for divorce by a wife for- corporal im-
rance of the law excuses no one. See Igno- potent. becility inthe husband, it is necessary to show a per-
EANCE. manent, incurable impotency to consummate the mar-
IGNORE. To refuse to find a bill of riage. "Corporal imbecility " does not, ex vi termini,
indictment. See Ignoeaki. import such impotency.' See Divorce.
On mental imbecility, see ' Insanity.
IL-. A prefix from the Latin in, not; IMMATERIAL. See Material.
negatives the sense of the simple word. See IMMATURE. See Mature.
In, 3.
IMMEDIATE. Direct ; present ; near —
ILIi. 1. Contracted from evil: as in ill-
in time, or kinship.
fame. That which is produced directly by the act to *hich
3. Contrary to rule or practice : as in ill- it is ascribed, without the intervention or agency of
pleading ; ill for want of certainty. Compare any distinct, intermediate cause: as, immediate inter-
Bad, 2 ; Well, 2.
ILLEGAL. See Legal; Eeuor, 3 (2), In the law of self-defense, " immediate " generally
Erroneous. signifies present in time and place. Thus " immediate
«st.«
danger " of losing life or of sustaining great bodily in-
ILLEGITIMATE. See Legitimate. jury, means that the danger is then and there present
ILLEVIABLE. See Levy. and the injury apparently about to be inflicted. ^
ILL-FAME. See House, Of ill-fame. "Immediatb delivery," among dealers in coal,
means a deliveiy within the present or, in cases,
ILLICIT.* Bisallowed: forbidden by within the succeeding month.'
law ; unlawful ; illegal : as, illicit intercourse, An action is said to be prosecuted for the immedi-
trade, distilling. ate (direct) benefit of a person ; ' and devises are made
to immediate issiie.*
Illicit intereo-urse. Fornication, or
adultery.
' See 3 Bl. Com. 304; 2 Whart. Et. § 1243, cases; 2
Illicit trade. In marine insurance, trade Bish. Cr. L. § 166.
made unlawful by the law of the country to ' Ferris ,-u. Ferris, 8 Conn. 167 (1830). See generally
which the object or vessel is bound. 5 1 Bish. Mar. & Div. §§ 321-39, cases.
s Delafleld v. Parish, 5 N. Y. Sur. 115 (1857). See gen-
eral y 1Wharton & St. Med. J. § 691 ; Taylor, Med. J.
' Huthsing v. Bosquet, 3 MoCrary, 575, 576 (1882), 789.
cases; Storrs v. Barker, 10 Am. Dec. 316, 333-28, cases; < Fitch V. Bates, 11 Barb. 473 (1851): Bouvier.
Story, Confl. L. §§ 76, 233, 274. » Bailey r. Commonwealth, 11 Bush, 691 (1876), Cofer,
2 4 Bl. Com. 305. J. ; United States v. Baldridge, 11 F. R. 568 (1882): E. S.
3 United States v. Watkins, 3 Cranoh, C. C. 606 (1839). § 5616; 6. c. 3 Cr. Law Mag. 860.
^L. iUiciius, not allowed: in-licere. • Neldon v. Smith, 36 N. J. L. 153 (1873).
0 1 Pars. Mar. Ins. 614; 2 La. 837, 338; 8 S. & E. 73; 4 ' Butler V. Patterson, 13 N. Y. 293 (1855).
id. 29; 5Binn.403. « Turley v. Turley, 11 Ohio St. 179 (1860).
 533 IMPAIR
IMMEMORIAL

Immediately. Within reasonable time. To relieve the distress which followed the war of
Never, or very rarely, employed to designate an the Eevolution, paper money was issued, worthless
«zact portion of time. ' Compare Foktbtwith. lands, and other property of no use to the creditor,
were made a tender in payment of debts, and the
IIIMEMOBIAL. See Custom; Mem-
time of payment stipulated in contracts was extended
ory.
by law. These were the peculiar evils of the day. So
IMMIGRATION". Moving into a coun- much mischief was done and so much more appre-
try, usually to acquire citizenship. hended, that general distrust prevailed, and confidence
The act of Congress of August 3, 1882 tag St. L. 214), between man and man was destroyed. . To restore .
which levies a duty of fifty cents for every foreign public confidence, the f ramers of the Constitution pro-
passenger coming by vessel to the TTnited States, to be hibited the use of any means by which the same mis-
paid to the collector of customs of the port, by the chief might again be produced: they established the
owner or agent of the vessel, is a valid regulation of principle that contracts should be inviolable.*
commerce with foreign nations. The duty is a license The reference is to contracts respecting property,
fee, a tax on the owner of the vessel, and on the busi- under which an individual may claim a right to some-
ness of bringing in alien passengers. It is not a capi- thing beneficial to himself ." The contracts protected
tation tax. The contribution is designed to mitigate are such as relate to property rights, not governmental.
the evils incident to immigration from abroad, by It may not be easy to tell on which side of the line a
raising a fund for that purpose." particular case is to be put.^ There was no intention
SeeCoHMEROE; Expatriation; Chinese. to restrain the States in the regulation of their civil
IM]yrOB,AIi. See Morals. institutions, adopted for internal government."
IMMORTALITY. See Corporation. The prohibition does not include grants for public
purposes, which are in effect mere regulations of in-
IMMOVABLES. See Movable. ternal police.* See further Monopoly; Policy, 1,
JMMITNlTY.s Exemption from a duty, Public.
obligation, penalty, or service, which the " Obligation " means the law which binds the par-
law requires of citizens in general. ties to perform their undertaking. ^ See Obligation, 3.
Freedom from what otherwise would be a The prohibition applies to implied as well as to ex-
. press, and to executory as well as to executed, con-
duty or burden.* tracts :as, a grant of lands by a State to an individual ; •
The Fourteenth Amendment secures immunity or, a compact between States; ' or, a grant of corpo-
from Inequality of legal protection, as to life, liberty, rate powers 8 — unless a right of revocation or altera-
or property.* tion is reserved in the grant or by a general law."
Immunity from taxation, as of the property of a But it does not include all contracts by a State with
railroad corporation, not being a franchise, but a per- its public officers or municipal corporations.''* After
sonal privilege, is not transferable even under a de- a public officer has rendered the services required of
cree of foreclosure.*
See further PBrvrLEOE, 1 ; Prohibition, 1 ; Tax, 2. the committee on style, resolute not "to countenance
IMPAIR. To make worse: to diminish the issue of paper money, and the consequent viola-
tion of contracts," of himself added " No State shall
in quantity, value, excellence, strength; to pass laws altering or impairing the obligation of con-
lessen in power ; to deteriorate.' To relax, tracts." In the shorter form adopted by the conven-
weaken, injure. tion. "an end was designed to be made to barren land
Impair liealth. See Intemperate. laws, laws for the installment of debts, and laws clos-
" No state shall . . . pass any . . Law im- ing the courts against suitors," — 2 Bancroft, Hist.
Const. 214 (1882).
pairing the Obligation of Contracts." ' 1 Sturges V. Crowninshield, 4 Wheat. 204, 208, 199
1 See Thompson v. Gibson.. 8 M. & W. *286-89 (1841'); (1819), Marshall, C. J.
McLure v. Colclough, 17 Ala. 100 (1849); Gaddis ads. "Dartmouth College v. Woodward, 4 Wheat. 628
Howell, 31 N. J. L. 316 (1865); Lockwood v. Middlesex (1819), Marshall, C. J. ; Butler v. Pennsylvania, 10 How.
Mut. Assur. Co., 47 Conn. 560-08 (1880), cases; 11 F. E. 416 (1860); Newton v. Commissioners, 100 IT. S. 567
S55; 44 Ind. 460; 51 Md. 512; 14 Neb. 151-53; 20 Barb. (1879); Charles Elver Bridge v. Warren Bridge, 11 Pet.
468; 29 Pa. 198; 40 id. S89; 75 id. 378; 43 Wis. 318, 479; •572 (1837); 2 Bancroft, Hist. Const. 213; Federalist,
62 id. 244; 5 Biss. 476; 43 111. 155; 13 N. J. L. 313; L. E., No. 44.
4 Q. B. 471 ; 20 Moak, 466, 463. » Stone V. Mississippi, 101 TJ. S. 830, 816 (1879).
'The Head^oney Cases, 18 F. E. 135 (1883), Blatch- * East Hartford v. Hartford Bridge Co., 10 How. 635
ford, J.: s. c. 112X7. S. 580 (1884), Miller, J. (1850).
»L. immunis, free from public service: in, not; ' Sturges V. Crowninshield, 4 Wheat. 197 (1819), supra.
munuSy duty. « Fletcher v. Peck, 6 Cranch, 137 (1810).
* Lonas v. State, 3 Heisk. 306 (1871). ' Green v. Biddle, 8 Wheat. 1, 84 (1833).
» Strauder v. West Virginia, 100 U. S. 810 (1879). 'Dartmouth College v. Woodward, 4 Wheat. 628
' Morgan v. Louisiana, 93 U. S. 223 (1876), cases. (1819); Home of the Friendless v. Eouse, 8 Wall. 437
' Webster's Diet. ; Edwards v. Kearzey, 96 U. S. 600
(1877). » Holyoke Company v. Lyman, 15 Wall. 522 (1872).
8 Constitution, Art. I, sec. 10. Gouvemeur Morris, of 1" Butler V. Pennsylvania, 10 How. 416-17 (1850).
 IMPAIR IMPARLANCE
534

him under an enactment which fixes the rate of com- impaired, necessarily, by a new statute of limitations.*
pensation {q.v.\ the obligation to pay for the services In modes of proceeding and forms to enforce a con-
at that rate is perfected and rests on the remedies tract, the legislature has control, and may enlarge,
which the law then gives for its enforcement. ' limit, or otherwise alter them, provided it does not
A charter granted to a private corporation, which deny a remedyor so embarrass it with"Conditions or
, in effect is a mere license, may be withdrawn; ^ so restrictions as seriously to impair the value of the-
may any other engagement which is a mere gratuity; ' right.^ia See Remedy: Bounty.
but not, without consent of the bona fide bondholder, The prohibition in the Constitution refers to enact-
power given a municipality to levy a tax with which ments to which the State gives the force of law; it
to pay its bonds.* And a State may not tax mortgage does not apply to decisions of the courts, or acts of
bonds, secured on property within it, held by non- executive or administrative boards or officers, or do-
residents.'
ings of corporations or individuals. . . " When the-
Liability for a tort, created by statute, although re- State court decides against a right claimed under a
duced to judgment, is not such a debt by contract as contract, and there was no law subsequent to the con-
is contemplated.* tract, this (the Supreme) court clearly has no juris-
Imprisonment for debt, not being regarded as a diction. When the existence and the construction of
part of a«onti^ct, may be abolished.' a contract are undisputed, and the State court upholds
The prohibition extends to provisions of a State a subsequent law, on the ground that it did not impair
constitution, as well as to ordinar.7 legislation.^ the obligation of the admitted contract, it is equally
The existing laws of the place where, or in refer- clear that this court has jurisdiction. When the
ence to which, the contract is made, affecting its va- State court holds that there was a contract cDnten-ing
lidity, construction, discharge, or enforcement, form certain rights, and that a subsequent law did not im-
part of the contract. The remedy, or means of en- pair those rights, this court has jurisdiction to con-
forcing the contract, is part of the obligation.^ sider the true construction of the supposed contract,
Judicial construction, being a part of a statute, a and, if it is of opinion-that itdid not confer the rights
change of decision is the same in effect as a new affirmed by the State court, and therefore its obliga-
enactment, ^f* tion was not impaired by the subsequent law, may on.
The Constitution intended to prohibit a law interpo- that ground affirm the judgment. So, when the State
lating a new term or condition foreign to the original com-t upholds the subsequent law, on the ground that
agreement." the contract did not confer the right claimed, this
In short, any deviation from the terms of the con- court may inquire whether the supposed contract did
tract, by postponing or accelerating the period of per- give the right, because, if it did, the subsequent law
formance which it prescribes, by imposing conditions cannot be upheld. But when the State court gives no
not expressed in the contract, or -by dispensing with effect to the subsequent law, but decides, on grounds
the performance of those which are expressed, how- independent of that law, that the right claimed was
ever minute or apparently immaterial in their effect not conferred by the contract, the case stands just as-
upon the contract, impairs its obligation. '^ if the subsequent law had not been passed, and this
Diminishing value by legislation is impairment. ^^
But it is not necessarily impaired by a reasonable court has no jurisdiction."*
change in the mode of enforcing it; ^* unless it sub- IMPANEL. See Panel. '
stantially lessens the rights of the creditor; ^^ nor is it
IMPARLANCE.s Opportunity for a
conference.
■risk V. Jefferson Police Jmy, 116 U. S. 131, 134 1. An indulgence granted a defendant to
(1885).
'Stone V. Mississippi, 101 U. S. 820, 816 (1879).
defer pleading to the action until a subse-
s West Wisconsin E. Co. v. Supervisors, 93 U. S. 595 quent term.
(1876). Trapnall, 10 How. 190 (1850); Hawthorne v. Calef, 2
<Von Hoffman v. City of Quincy, 4 Wall. 635, 544 Wall. 23 (1864); Gunn v. Barry, 15 id. 623 (1872); Walker
(1866); Wolff V. New Orleans, 103 U. S. 858 (1880). V. Whitehead, 16 id. 318 (1872); Antoni v. Greenhow,
"State Tax on Foreign-Held Bonds, 15 Wall. 325 lOr U. S. 774, 778 (1882); 101 id. 339.
(1872). 'Koshkonong v. Burton, 104 U. S. 675 (1881), cases;
"Louisiana v. New Orleans, 109 U. S. 285 (1883); GilfiUan v. Union Canal Go., 109 id. 401 (1883); Mitchell
Chase v. Curtis, 113 id. 464 (1885). V. Clark, 110 id. 642 (1883).
' Penniman's Case, 103 U. S. 717, 720 (1880), cases. 2 Penniman's Case, 103 U. S. 717, 720 (1E80), cg.ses.
'Dodge V. Woolsey, 18 How. 331 (1855); New Orleans ' gee also Kring v. Missouri, 107 U. S. 233 (1882), cases ;
Gas Co. V. Louisiana Light Co., 115 U. S. 650, 673 (1885), Civil Rights Cases, 109 id. 12 (1883); Louisville, &c. R.
cases; Fislc v, Jefferson Police Jury, 116 id. 131 (1885). Co. v. Palmes, ib. 256 (1883); Louisiana u. Mayor of
» Walker v. Whitehead, 16 Wall. 317 (1872); Edwards New Orleans, tb. 285 (1883); Nelson v. St. Martin's Par-
V. Kearzey, 96 U. S. 600 (1877), cases; 102 id. 533. ish, 110 id. 720 (1884); Parker v. Buckner, 67 Tex. 2S
■"Douglass V. County of Pike, 101 U. S. 687 (1879). (1886); 25 Am. Law Reg. 81-97 (1886), cases; 2 Story,
1' West Eiver Bridge Co. u Dix, 6 How. 633 (1848). Const. §§ 1368-91.
12 Green v. Biddle, 8 Wheat. 84 (182.3), Washington, J. • New Orleans Water-works Co. v. Louisiana Sugar
IS Planters' Bank v. Sharp, 6 How. 327 (1848). (3o., 125 U. S. 18,. 30, 38 (1888), oases, Gray, J. ; Kreiger
"* Mason v. Haile, 12 Wheat. 378 (1827). V. Shelby E. Co., ib. 39 (1888).
'"Bronson v. Kinzie, 1 How, 311 (1843); Woodruff v. " F. parler, to speak.
 IMPARTIAL 525 IMPEACH

Before the defendant puts in his defense he is en- 3. To impugn, call in question, seek to dis-
titled todemand one imparlance, or licentia loquendi,
parage :as, to impeach the authenticity of a
to see if he can end the matter amicably without
document, the irregularity or legality of a
further suit, by talking with the plaintiff; a practice
supposed to have arisen in obedience to the precept judgment or sale, one's title to negotiable
" Agree with thine adversary quickly, whilst thou art paper or to property. See Disparage, 3;
in the way," Matt. v. 26. The Roman law of the Facies, Prima ; Judgment.
Twelve Tables likewise directed the parties to make
3. To seek to prove unworthy of belief;
up the matter while going to the prsetor.'
to discredit : as, to impeach the veracity of a
General imparlance. That just definedj witness.
and grantable of course. Special impar- To charge or accuse of want of veracity; and, to
lance. Saved all exceptions to the writ or establish such charge.^
count, and was granted by the prothonotary. To accuse, blame, censure. Thus, to impeach one's
More special imparlance. Saved all excep- official report or conduct is to show that it was occa-
tions whatsoever, and granted at the discre- sioned by some partiality, bias, prejudice, inattention
to or unfaithfulness in the discharge of that duty; or,
tion of the court. 2 that it was based upon such error that the existence
Imparlances are no longer recognized in this of those influences may justly be inferred from the
country, where, after appearance by the defendant, extraordinary character or grossness of that error.^
the cause stands continued until the end of the time
within which the plea is to be filed. See Coktinuance. Unimpeached. Not discredited, undis-
credited ; not shaken in character or worth,
2. Stay of execution. '
professed or attributed. Unimpeachable.
IMPAKTIAL.4 1. Applied to a juror,
indifferent as he stands unsworn ; 5 has not Not to be questioned as to credit ; irreproach-
able; blameless.
formed an opinion as to the issue.* After a witness has been examined in chief, his
'■In all criminal prosecutions, the accused shall en credit may be impeached in various modes besides
joy the right to a speedy and public trial, by an im- that of exhibiting the improbabilities of his story by a
partial jury of the State and district wherein the
cross-examination; (1) By disproving the facts stated
crime shall have been committed," etc.' Compare by him, by other witnesses. (2) By general evidence
ISniFFERENT ; PREJUDICE, 1.
affecting his credit for veracity. (3) By proof that he
The courts are not agreed as to the knowledge upon
has made statements out of court contrary to tphat he
which an opinion must rest to render a juror incom- has testified at the trial. But this is only in matters
petent, or whether the opinion must be accompanied relevant to the issue; and, beforehand, he must be
by malice or ill-will; but all unite in holding that it asked as to the time, place, and persons involved in
must be founded on some evidence, and be more than
a mere impression. Some say it must be positive; the supposed contradiction; upon the general ques-
tion he may not remember whether he has said so or
others, that it must be decided and substantial ; others,
that it must be fixed; others again, that it must be not; and justice requires that his attention be first
deliberate and settled. All concede, however, that if called to the subject. Then he may correct or explain
hypothetical only, the partiality is not so manifest as the former statement.'
By calling, the party represents his witness as
to necessitate setting the juror aside.* worthy of credit or at least as not so infamous as to
2. As understood in conditions annexed to
be wholly unworthy of credit. For him to attack the
bonds, see Faithfully. witness's veracity would be bad faith to the court, and
IMPEACH.s 1. To call to account: as, give the power to destroy if the witness spoke un-
favorably, and to make good if he spoke favorably.
to impeach a tenant for waste, i" Hence, at commpn law, while a party may contradict,
" 3 Bl. Com. 299. and to that extent discredit, he cannot ordinarily " im-
"SBl. Com. 301. peach "his own witness. <
An adverse witness who contradicts his former
> Act 19 May, 1838, § 2: E. S. § 988.
* L. im-pars, not of a part or party. statement, thereby sui-prising the party calling him,
• Littleton, 155 6. may be examined as to his former statement, when
•Eeynoldsu. United States, 98 U. S. 154(1878): Coke,
litt. 155 b.
'Constitution, Amd. Art. VI. 1 [White V. McLean, 47 How. Pr. 199 (1874).
8 Reynolds v. United States, 98 U. S. 165 (1878), Waite, 2 Bryant v. Glidden, 36 Me. 47 (186.3), Shepley, C. J.
C. J., citing 11 Leigh, 659; 10 Gratt. 658; 13 111. 685; > 1 Greenl. Ev. |§ 461-63. See Becker v. Koch, 104
2 Uev. & B. L. (N. Car.) 196; 74 Pa. 468; 84 id. 151. See N. Y. 401 (1887), cases; Conrad ti. Griffey, 16 How. 46-47
also Northern Pacific E. Co. v. Herbert, 116 U. S. 646
(1863), cases.States v. Watkins, 3 Cranch, C. C. 442 (1829);
* United
(1886), cases.
*F. empeecher^ to prevent, hinder, bar: L. impedi- Commonwealth v. Donahoe, 133 Mass. 408 (1882); Shep-
eare, to impede; or impingere, to thrust against, pard V. Yocum, 10 Oreg. 410 (1888); Stearns v. Mer-
"a Bl. Com. 883; 6 Pla. 480. chants' Bank, 53 Pa. 492-99 (1866), cases.
 IMPEACH 536 IMPLEMENTS

it would appear that deception has been practiced; the shall nevertheless be liable and subject to Indictment,
examiner being guHty of no laches.' Trial, Judgment and Punishment, according to Law." *
May impeach an opposing witness by " former The Senate has sat ai a court of impeachment in
statement contradicting that made in his examination the cases of Judge Chase, in 1804; Judge I'eck, in
in chief; 2 but cannot contradict on a collateral mat- 1831; Judge Humphreys, in 1863; and of President
ter. May contradict answers as to motive; question Johnson, in 1868. ^
veracity; show bias or convictionof infamous crime.* Proceedings under the constitutions of the States,
May attack the impeaching witness, and sustain the for the trial of State officials, are similar to the fore-
impeached, but not by proof of former consistent going. See Judge; Pardon.
statements. Corroboration is discretionary in the IMPEDE. See Obstruct.
court. 3 IMPERFECT. See Duty, 1; Perfect.
To impair his credibility, a witness may be cross- IMPEBIUM. L. Dominion; authority;
examined as to specific facts tending to disgrace or
degrade him, although irrelevant to the main issue. jurisdiction.
The range of cross-examination depends upon the Divisum. imperium. A divided juris-
appearance and conduct of the witness and other cir- dictionjurisdiction
; belonging to more than
cumstances. Itis only where the discretion in the
one tribunal, or exercised alternately, be-
court has been abused, to the prejudice of a party,
tween powers.
that error will lie.* See Chaeactek; Cbedit, 1; Ex-
amination, 9;Eeputation. As, the jurisdiction of common-law and admiralty
courts exercised between high and low water- mark;
4. To convict of such misconduct as jus- the jurisdiction exercised concurrently by common-
tifies removal from office. law and equity courts.
Articles of impeachment. The formal Im.perium in imperio. A power within
statement of charges of misconduct pre- a power ; a sovereignty within a sovereignty ;
ferred against an officer. a jurisdiction within a jurisdiction.^
Like an indictment for crime, must be Sufficiently IMPEETINElfCE. The introduction of
certain in averment to admit of a defense being
framed, and to be used in bar of ahother accusation any matter in a bill, answer, or other plead-
upon the same subject-matter in case of acquittal. ing or proceeding in a suit, which is not
Court of impeacluiieiit. The tribunal pi-operly before the court for decision at any
before which articles of impeachment are particular stage of the suit.^
presented and the charges tried. The court will not strike out the matter unless its
Charges which will warrant an impeachment may impertinence clearly appears; for if erroneously
not sustain an indictment. The prosecution is con- stricken out, the error is irremediable; if left to stand,
ducted before some branch of the political power, or the court may set the matter right in taxing the costs.
before a quasi political tribunal. Matter which is scandalous (g. v.) is also impertinent,*
" The President, Vice President and all civil OfHcers The test is, would the matter, if put in issue, be
of the United States, shall be removed from OfSce on proper to be given in evidence. ^
Impeachment for, and Conviction of. Treason, Bribery, Impertinent. See Pertinent.
or other high Crimes and Misdemeanors." ' IMPLEAD. See Plea, 3.
" The House of Representatives . . . shall have IMPLEMENTS. Things necessary in
the sole Power of Impeachment." *
any trade, without which the work cannot
" The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they be performed ; also, the furniture of a house.
shall be on Oath or Affirmation. When the President Implements of household are tables, presses,
of the United States is tried, the Chief Justice shall
cupboards, bedsteads, wainscot, and the like.*
preside: and no Person shall be convicted without the
Rarely, if ever, includes an animal.^
Concurrence of two-thirds of the Members present." As used iu a statute of exemptions, does not include
" Judgment in Cases of Impeachment shall not extend a horse and cart.'
further than to removal from OfBce, and disqualifica-
tion to hold and enjoy any OflSce of Honor, Trust or ' Constitution, Art. I. sec. 8, cl. 6-7. See 3 Bancroft,
Const. 193.
Profit under the United States: but the Party convicted
'See Story, Const. § 791; 3 Am. Law Eev. 547-67
1 1 Whart. Ev. §§ 649-67, cases. (1868); 6 Am. Law Reg. 357-83 (1867), T. W. Dwight; ib.
= Ferry v. Breed, 117 Mass. 165 (1876); 35 Vt. 68. 641-80 (1867), W. Lawrence; 4 Bl. Com. 259-61.
' 1 Whart. Ev. §§ 568-71, cases. See generally Seller ' 17 Wall. 338; 106 U. S. 663;' 37 Pa. 392.
v. Jenkms, 97 Ind. 433-39 (1884), cases. * Story, Eq. PI. §§ 366-70; Wood v. Mann, 1 Sumn.
* State V. Pfefterle, 36 Kan. 93-96 (1886), cases, John- 588-89 (1834), Story, J. ; 3 Story R. 13; 15 F. R. 561.
ston, J. See also Pullen v. PuUen, 43 N. J. E. 136 (1887), » Woods V. Morrell, 1 Johns. Ch. *106 (1814), Kent
cases; State v. Thomas, Sup. Ct. N, C. (Deo. 31, 1887), Ch. See also Hood v. Inman, 4 id. *438 (1820).
cases.
"Coolidge V. Choate, 11 Mete. 83 (1846).
* Constitution, Art. II, sec. 4. ' Enscoe v. Dunn, 44 Conn. 99 (1876); Wallace v. Col-
* Constitution, Art. I, sec. 3, cl. 5. lins, 5Ark. 46 (1843).
 527
IMPLICATION IMPRISONMENT

A music teacher's piano is an " implement of busi- IMPOSITION. See Deceit ;Extoetion;
ness." 1 Compare Tools. Fraud ; Mistake ; Reform.
IMPLICATION. An inference of some- IMPOSSIBILITY. See Possibility.
thing, not directly declared, but arising from IMPOST. A custom or tax levied on ar-
what is admitted or expressed. ^ ticles brought into a country.^
Implied. Infolded : involved in language
A duty on imported goods and merchan-
or intention; resting upon inference; im- dise. In a larger sense, any tax or imposition.
puted in law.s Opposed, expressed, con- Synonymous with duty ; comprehends every
structive, qq. V. species of tax or contribution not included
Where it is the duty of a defendant to do an act,
the law imputes a promise to fulfill that obligation.' under the ordinary terms " taxes and ex-
See Assumpsit.
What is clearly implied in a statute, pleading, con- IMPOTENCE. See Imbecility ; Inspec-
tract, will, or other instrument, is as much a part of it cises." 2
tion, Of person.
as what is expressed." See Incident. IMPOUND. See Pound, 2.
IMPORT. 1, V. To bring from a foreign IMPRESSION. 1. A cause in which a
jurisdiction or country merchandise not the
question arises for the first time is termed a
product of this country. ^
71. Most commonly imports: the goods or "case of the first impression." '
2. Effect produced upon the mind of a
other articles brought into this country from
juror.^ See Opinion, 2.
abroad — from another country.' Opposed, IMPRIMUS. See Primus; First, 2.
export, exports, q. v. IMPRISONMENT. Detention of an-
" No State shall, without the Consent of the Con-
gress, lay any Imposts or Duties on Imports or Ex- other against his will, depriving him of the
ports, except what may be absolutely necessary for power of locomotion.5 Compare PRISON.
executing its inspection Laws . . and all such Laws Confinement of the person in anywise ; as,
shall be subject to the Revision and Controul of the keeping a man against his will in a private
Congress."
This does ' not relate to articles imported from one house, arresting or forcibly detaining him in
State into another; only to articles imported from for- the street. 8
eign countries.* In the penal legislation of Arkansas, the word " im-
Nothing is imported till it comes within the limits prisonment," used alone, means imprisonment in a
of a port. The term " imports " covers nothing not county jail or local prison. Confinement in a peni-
actually brought into our limits.'" tentiary isnot meant, unless expressly so stated.^
Imposing a license tax on Importers is an indirect In Louisiana, ''imprisonment," unqualified, in penal
tax on imports." statutes, is used in contradistinction to " imprisonment
See Couheooe; Ddtt, 2; Entry, n, 2; Impost; In- at hard labor." "
spection, 1. Duress of imprisonment. A compul-
2. As to import of language, see Pdkport. sion by an illegal restraint of liberty, until
IMPOSE. See Tebm, 2.
one does some act, as, seal a bond.' See fur-
ther Duress.
> Amend v. Murphy, 69 lU. 838 (18T3). See also 23 False, or imlawfiil, imprisonment.
Iowa, 389; 124 Mass. 418; 6 Gray, 298; 48 N. H. 653. Any confinement or detention of the person
' Be City of Buffalo, 68 N. Y. 173 (1877), Folger, J. without sufficient authority. i"
"See Homan v. Earle, 53 N. Y. 271 (1873); 13 Abb.
Pr. 413.
< Bailey u N. Y. Central K. Co., 22 Wall. 639 (1874), > Brown v. Maryland, 13 Wheat. 437 (1837), Marshall,
cases. Chief Justice.
"United States v. Babbit, 1 Black, 61 (1861), cases; 20 2 Pacific Ins. Co. v. Soule, 7 Wall. 445 (1868), cases,
Wall. 493; 101 U. S. 82, 202; 110 id. 688. Swayne, J. ; 1 Story, Const. § 669. See also 8 Wall. 131 ;
• [United States v. The Forrester, 1 Newb. 94 (1856). 14 Mo. 33.5; 9 Rob., La., 324; 1 Story, Const. § 949;
' [Brown v. Maiylamd, 12 Wheat. 437 (1837), Mar- Federalist, No. 30.
shall, C.J. • 103 U. S. 168; 21 Pa. 175; 98 id. 104.
' Constitution, Art. I, sec. 10, cl. 2. « See (Jreenfleld v. People, 74 N. Y. 283 (1878).
"Woodruff V. Parham, 8 Wall. 131 (1868), cases; » United States v. Benner, Baldw. 239 (1830).
Brown v. Houston, 113 U. S. 638 (1888). •IBl. Com. 136; 3 id. 127.
'"Marriott v. Brune, 9 How. 632 (1850); Arnold v. ' Cleaney v. State, 36 Ark. 80 (1880).
United States, 9 Cranch, 120 (1815); 4 Mete, Mass., 283. 8 State V. Hyland, 30 La. An. 710 (1884).
" Brown v. Maryland, 12 Wheat. 419 (1827); Warring
V. Mayor of Mobile, 8 WaU. 110 (1868). 1"» 3[1Bl.
Bl. Com.
Com. 127.
136, 131.
 IN

IMPEOVE 538

May consist in detaining anotlier by threats of vio- fore does not effect an improvement of the laud im-
lence, thereby preventing him from going where he plied in something created or constructed, attached
wishes by a reasonable apprehension of personal to the shore. 1
■danger. 1 Internal improvements. Works within
A violation of the right of personal liberty. May the State, by which the public are supposed
arise by executing a lawful process at an unlawful
time, as, on Sunday. Remedies: habeas corxius, and
to be beiiefited ; such as the improvement of
an action for damages,^ qq. v. highways and channels of travel and com-
An. action will lie for the misuse or abuse of pro- merce.2 See Aid, 1, Municipal.
cess, beyond the fact of arrest and detention. ^ Under improvement. Used, occupied, em-
Imprisonment for debt. No person shall be
imprisoned for debt in any State . . on Federal ployed, turned to profitable account.'
S. An addition of some useful thing to a
process . .' where imprisonment for debt is abol-
ished. The State course of proceeding is to be fol- patentable object. See further Invejntion;
lowed.* Patent, 3; Process, 3.
" No crime known to the law brought so many to IMPBOVIDENT. In a statute exclud-
the jails and prisons (one hundred years ago) as the
crime of debt, and the class most likely to get into ing from an administratorship or executor-
debt was the most defenseless and dependent, the ship a person improvident in liabits, the
.great body of servants, of artisans, of laborers." ° reference is to such habits of mind and con-
See Arrest, 2; Commitment; Felony; Labor, 1; duct as render a man unfit for the duties
Prosecution, Malicious.
of the trust. < Compare Incapable; Strnv
IMPROVE. To cultivate, as, land. ABLE, 1.
"Improved land " is such as has been reclaimed, is
used for purposes of husbandry, and is cultivated Improvldently. Designates a rule, or-
as such, — whether the appropriation is for tillage, der, or deci-ee, had or made prematurely or
meadow or pasture. " inconsiderately.
Improvement. 1. Amelioration in the IMPULSE. A sudden impelling.
condition of property by the outlay of labor An irresistible impulse to commit an act known to
or money. be wrong does not constitute the insanity which is a
legal defense. The law does not recognize an impulse
Includes repairs or additions to buildings, the erec-
as ancontroUable which yet leaves the reasoning pow-
tion of fences, the annexation of fixtures, etc.'' See ers — including the capacity to appreciate the nature
Eetterment; Estoppel.
As used in a will, relative to property, construed and quality of the particular act — unaffected by men-
tal disease.^ See Insanity.
according to the Subject-matter. A gift of the im-
provement of land may constitute a freehold estate, IMPUNITY. Applies to something
for the devisee's life; of plate, pictures, furniture, it which may be done witliout penalty or pun-
would be the possession and use ; of money, securities,
•or stocks, it would be the i:ncome.s ishment.*
IMPUTE. See Knowledge, 1; Impli-
Bedding oysters is not an "improvement," within cation.
the meaning of a statute authorizing riparian owners
to make improvements on navigable streams. The IN. Introduces English, French, and Latin
mei-e depositing of the oysters in the water implies
no essential union or relation between the main land phrases :
1. English, (i) The preposition: within,
^nd the soil under the water contiguous; and there-
inside of, surrounded by.'?
Under a statute requiring notices to be posted " in "
1 [Pike D. Hanson, 9 N. H. 493 (1838); Smith v. State, public places, a posting " at" such places may not be
•7 Humph. 43 (1846). See also 85 Ind. 15, 286; 43 id. 65; sufficient.^
Baldw. 600; 12 Ark. 43; 133 Mass. 399; 81 N. iC. 538;
■a Johns. 117; 5 Vt. 588; 1 Bish. Cr. L. § 558.
= 3 Bl. Com. 127, 138; 4 id. 218; Castro v. De Uriarte, ■ Hess V. Muir, 65 Md. 586, 598 (1886).
13 ,F. E. 253 (1882). = Union Pacific R. Co. v. Cbmmissioners, 4 Neb. 466
» Wood V. Graves, 144 Mass. 367-68 (1887), cases. (1876); Dawson County ij. McNamar, 10 id. 281 (1880);
« E. S. § 990; The Blanche Page, 16 Blatoh. 8 (1879). Traver v. Merrick County, 14 id. 333 (1S83); Blair v.
« 1 McMaster, Hist. Peop. V. S. 98 (1883). Cuming County, 111 U. S. 370-73 (1884), cases.
« [Clark V. Phelps, 4 Cow. 208 (1825). See also 40 Cal. " Chase v. Jef ts, 58 N. H. 281 (1878).
83; 8 Allen, 213; 68 Pa. 396. < [Emerson v. Bowers, 14 N. Y. 454 (1866): s. 0. 14
' See Schenley's Appeal, 70 Pa. 102 (1871) ; Schmidt t'. Barb. 660; CoopB v. Lowen'e, 1 Barb. (3h. 47 (184S).
Armstrong, 72 id. 356 (1872); French v. Mayor of New ' People V. Hain, 62 Cal. 123. (1882).
York, 16 How. Pr. 823 (1858)^ 33 Iowa, 254; 34 id. 559; • Dillon V, Rogers, 36 Tex. 163 (1871).
1 Cush. 98; 23 Barb. 260; 78 N. Y. 1, 581; 18 N. J. L. ' See Mayor of New York v. Second Avenue E. C!o.,
•424. 31 Hun, 245 (1883).
' Lamb v. Lamb, 11 Pick. *375 (1831), Shaw, 0. J. BHilgers v. Quinney, 51 Wis. 71 (1881)
 IN,

IN 529

In a bond payable " in twenty -five years "means, at In adversum. Against a resisting party.
the end o£ that period, not within nor at any time ding- Compare In invitum.
ing the period.' In eequali jure. In equal right. See
" The city of Wichita claims that when the act was Jus.
passed there was no Gilbert's addition in the city,
upon which the act could operate. Such addition may In articulo mortis. At point of death.
have been in the town or city, considering the collect- See Article, 3.
ive body of people in that vicinity as the town or city, In banco. In bank. See Bank, 2 (1).
and not merely the corporate limits." ' In bonis. In property. See Bona.
In action. See Action, 2 ; Chose.
In capita. Among the persons. See
In banc or bank. See Bank, 2 (1), Caput.
In blank. See Blank.
In case. See Case, 1. In capite. In chief. See Chief.
In chief. See Chief. In cujus rei testimonium. In testi-
In court. See Out, Of court. mony of which thing ; in testimony whereof.
In consimili casu. In like cause. See
In equity. See Equity ; Law.
In evidence. See Evidence. Casus, Consimili.
In fact. See Fact. In custodia legis. In possession of the
law. See Custody.
In fuU. See Indorsement. 2 ; Receipt, 2.
In dubiis. In matters of doubt.
In gross. See Gross.
In esse. In existence; opposed to in
In kind. See Kind.
In law. See Fact ; Law. posse, q. V. See Remainder ; Sale.
In extenso. At length; fuUy. See At
In like manner. See Likewise.
Large, 1.
In mercy. See Merct.
In extremis, (a) At the end, the last.
In possession. See Possession.
See Article, 3 ; Nuncupative.
In tbat case or , event. See Then ;
Upon, 2. (6) Under stress of apparent necessity.
A movement in extremis by a vessel is not charge-
In the peace. See Peace, 1. able as a fault in the master or pilot, though erroneous
In the presence. See Presence. and useless.'
In the same manner. See Manner. In facie eeclesise. Before tlie church.
See Dower. •
(2) The adverb: not out, within; invested
erty. . In favor of lib-
with title or possession : as, " in " by descent, In fevorem libertatis
"in" by purchase.
2. French. Used for en — equivalent to the In favorem vitse. In favor of life.
English and Latin in. In flctione. See Fiction.
Tn fieri. In the to be made : in the mak-
In autre droit. In another's right. See
Droit.
ing ;in process of being made, created, com-
In pais or pays. In the country : iq deed. pleted :not completed.
See Pais. During the term of a court, proceedings are said to
In ventre. In the womb. See Abor- be In in fieri.^
fine. At the end — of the page, title,
tion; Venter.
le particle, etc. Abridged in fin., inf.
3. Latin. (1) An inseparab
In forma pauperis. As a poor person.
meaning not. Like the English un, nega- See Pauper, 1.
tives the sense of the simple word.
Before I, changes to il, as in illegal; before b, m, p, In foro conscientise. Before the bar of
Before
(labials), changes to im, as in imbecile, immaterials; conscience. In foro domestico.
before r, changes to ir, as in irregular, irrelevant. the home tribunal. In foro seculari. Be-
Compare En, 8; Non. fore the civil court. See Forum.
(2) A preposition, denoting rest or motion In fraudem legis. In evasion of the
within or into a place or thing. Opposed to law.
ex, coming out from within. May be trans- In faturo. At a future time.
lated in, into, within, among; to, toward, at;
1 The Alabama, 17 F. R. 864 (1883), cases; 11 id. 932;
on, upon ; against. Compare En, 1.
Ua U. S. 526.
' Allentown School District u Derr, 115 Pa. 446 (1887). 2 18 Wall. 193; 109 U. S. 499; 70 Ala. 403; 87 Ind. 26; 3
" City of Wichita v. Burleigh, 36 Kan. 41 (1886). Bl. Com. 407.
 530
IN INCAPABLE

In genere. In kind ; opposed to in spe- In posse. In possibility; opposed to in

eie, q. v. esse, q. v.
In gremio legis. In the boBom, protec- In prseparatorio. In preparation : being
tion, of law. See Lex.
fitted out.i
In hac parte. On this side. In prsesenti. At present time. See
In hsec verba. In these words. See Marriage.
Verbum. In propria persona. In his own person.
In hoe. In this ; as to this. See Persona.
In individuo. In the undivided state: In propria causa. In his own suit. See
entire. Causa.
In inB,nitum. To infinity; indefinitely. In quo. In which. See Locus.
In initiov In the beginning ; from the first. In re. In the matter of: in regard to.
In integruni. In the unbroken state: See Res.
whole, entire. In rem. Against a thing — property ; op-
In invittun. Against one not Assenting : posed to in personam, q. v. See Res.
unwillingly; as, a tax levied in invitum. In rerum natura. In the nature of
See Invitus. things ; in existence.
In judicio. By judicial procedure; in In se. In itself.
cburt. In solido; in solidum. For the whole;
In jure. In right : rightfully. as an entire thing ; exclusive of another.
In limine. At the threshold : at first in- In the case of a joint and several obligation, each
ception ;at first opportunity. obligor is liable for the whole amount; so, possession
An objection to testimony must be offered in by a partner accrues to all copartners.^
limine.^ In specie. In the very thing; also, ac-
In litem. In the suit. See Oath, In cording to the precise terms ; opposed to in
litem. genere, in kind. See Deposit, 3; Distress
In loco parentis. In the place of the (4) ; Genus ; Loss, 3 ; Species.
parent. In statu quo. In the condition in
Guardians and teachers are said to stand in loco which — a person or thing was formerly.
.parentis. See further Parens. See Status ; Rescission.
-In miserieordia. In mercy. Abridged In terrorem. For a warning: as a threat.
in m'ia. See Mercy. In testimonium. In witness whereof.
In mitiori sensu. In the milder mean- In thesi. For a proposition: in state-
ing. See Slander ; Sensus. ment.
-In mortua manu. In dead hand — mort- In totidem verbis. In the very words :
jnain, q. v. word for word. See Verbum.
In nubibus. In the clouds : in abeyance. In toto. In the whole: entirely; abso-
lutely.
-In nullo erratum. In nothing is there
error. See Erratum. In transitu. In passage; on the way.
In odium spoliatoris. In hatred of a See Stoppage.
despoiler. See Alteration, 3: Spoliation. INABILITY. See Ability ; Disability.
In pari causa. In an equal cause : equal INACCURACY. See Ambiguity.
right. In pari delicto. In equal wrong- INADEQUATE. See Adequate.
doing. See Delictum. INADMISSIBLE. See Admission, 1.
In pari materia. On like subject. See INALIENABLE. See Alien, 3.
Materia ; Repeal. INAUGURATION. See Oath, Of office.
In perpetjiam rei memoriam. For In order to vest official authority In a President or
preserving evidence of the matter. governor elect, it is oUly necessary that he take the
oath of office.
In personam. Against the person; op-
posed to in rem, q. v. See Persona. INCAPABLE. Referring to a person
In pios usus. For religious purposes. disqualified from administering upon an es-
See Use,, 3, Pious. tate, isnot limited to mere mental or phys-
> 107 U. S. 71.
' 109 U. S. 70, 71 ; 181 id. 400.
 INCAPACITY 531 INCIDENT

ical incapacity ; includes the idea of unfitness, choate property in his invention, which he may com-
plete by taking out a patent.^
BBBuitableness.i Compare Improvident.
HTCAPACITY. See Capacity. A purchaser at a judicial sale acquires an inchoate
right to the property.i An informer, by commencing
INCEM-DIAEY. See Arson. suit, obtains an inchoate property in the penalty, con-
rNCERTA. See Cebtum. summated byjudgment.^ The law forbids the incho-
HfCEST.s Illicit intercourse between ate step to an illegal act,' See Perfect.
persons within those degrees of consanguin- IN'CIDENT.4 Whatever inseparably be-
ity as to which marriage is forbidden by longs to, is connected with, or inheres in an-
other thing as principal; less properly, a
law.'
There may be a certain power exerted, resulting thing connected with another, even sepa-
from age, relationship, or other circumstance, which
overcomes the objections of the female, without rably. 5
Incident; incidental. Connected with
amounting to that violence which would constitute
something of more worth or importance ; oc-
rape.*
Incestuous adultery or fornication.. cupying a subordinate relation; accessory;
collateral.
The crime of adultery or fornication aggra-
The " incidental " labor for which a mechanic's lien
vated by the additional crime of incest. maybe filed in Colorado must be directly done for, con-
While cognizable as an offense under the canon nected with, or actually incorporated into the building
law, incest does not seem to have been punishable by
or improvement, and not indirectly and remotely as-
indictment at common law. It is now punishable by sociated with the construction."
statutes, which also presc'ribe the prohibited degrees Customary incidents. Such incidents
of kinship.'
Where a defendant in an action for libel alleged as originate in usage or custom.'
that the plaintiff had committed incest from which Annex incidents. Show what things
she was pregnant, and did not attempt to prove the are to be treated as incidental to another
latter act, the plaintiff was held entitled to a verdict.*
See Ignorance; Polygamy. thing the subject of a contract. ^
Parol evidence is admissible to annex incidents.
INCHASTITY. See Chastity; Incest. The rule is that the incident follows the principal.
INCHOATE.'' Commenced, but not com- " When the law doth give anything to one, it giveth,
pleted; not fully in existence or operation; impliedly, whatever is necessary for enjoying the
inceptive; incomplete ; imperfect. Opposed, same."" .
When the use of a thing is granted, everything is
conxummate, q. v. granted by which the grantee may enjoy such use.
Designates a right, title, or claim, not yet complete.^ The grantor is presumed to intend to make the grant
Thus, a marriage between minors is inchoate and in-
complete.' Before the husbands death, right to Thus, whatever
effectual. '» is part and parcel of a house, mill,
dower is inchoate.'" The right of an unborn child to or factory is conveyed eo nomine.^^ Land covered by
take by descent is inchoate." A legacy transfers an the eaves of a house goes with a grant of the house. '^
inchoate property to the legatee, perfected by assent The use of a front-door, entry, windows, closets,
of the executor." pumps, etc., is incident to the tenancy of a room in a
The right to a copyright may be inchoate." From house, unless otherwise agreed. The key is an inci-
the moment of his invention, an inventor has an in- dent to a building; so are the title-deeds to the land;
so is rent to the reversion; >' and so is a remainder to
■ Drews' Appeals, 58 N. H. 320 (1878), cases. the particular estate. The right of alienation is neces-
"F. inceste; L. incestua: in, not; castue, pure. sarily, incident to a fee-simple at common law.'*
= Daniels v. People, 0 Mich. 336 (1859); Territory v. ' Delaplaine v. Lawrence, 10 Paige, 602 (1844^
i'2Bl. Com. 437.
Corbett, 3 Monta. 55 (1877); Ctommonwealth u. Lane,
113 Mass. 463 (1873); 39 Mich. 1S4; 44 Pa. 310. « Trist V. Child, 31 Wall. 451 (1874).
« Eaitord v. State, 68 Ga. C7J (1883). ' L. incidere, to fall upon or into.
« See 4 Bl. Com. 64; 1 Bishop, Cr. L. § 502, 1 Mar. & D. » See Neal v. East Tennessee College, 6 Yerg. 208
§ 312, St. Cr. § 727; 2 Kent, S3; State v. Fritts, 48 Ark.
68-70 (1886), cases. (1834).
• Kara Avis Mining Co. -u. Bouscher, 9 Col. 388 (1886).
•Edwards v. Kansas City Times Co., 32 F. B. 813 ' 1 Whart. Ev. § 069.
(1887). e 1 Greenl. Ev. | 294.
' In'-co-ate. L. inchoare, to begin. » 2 Bl. Com. 36.
« Trenier v. Stewart, 101 U. S. 802 (1879). '" Steam Stone Cutter Co. v. Shortsleeves, 16 Blatch.
"1 Bl. Com. 436. 882 (1879), cases.
i»2Bl. Com. 130. I'-l Greenl. Ev. §§ 286, 294, cases.
" Marsellis v. Thalhimer, 2 Paige, Ch. 35 (1830). 12 Sherman v. Williams, 113 Mass. 484 (1873).
1=2 Bl. Com. 512. "2B\. Com. Ill, 176.
"Lawrence v. Dana, 4 Cliff. 66 (1869). n 1 Washb. R. P. 54.
 INCIPITUR 533 INCOMPATIBLE

"A vessel is incident to its keel; the frame to a pict-

INCLtrSIO. See EXPRESSIO.
ure; tlie halter (o a horse sold; wool upon a pelt to INCOME. That which comes in, or is
the pelt; wages to freight; interest to its principal;
the subscription list to a newspaper establishment ; the received from any businiess or investment of
cuscody of goods by ah innkeeper to the contract for capital, without reference to the outgoing
entertainment; such subordinate acts by a special expenditures. Applied to the affairs of an
agent as are usually done' in' connection with the individual, conveys the same idea that " rev-
principal act.^
Sbnie writs are incidents to the other writs. Power enue " expresses when applied to the affairs
to make rules of court is incidental to the general of a state or nation. Sometimes, is synony-
power invest€!d in every court of record.^ Pbwer to mous with " profits," the gain as between
call for proofs, to compel the attendance pf witnesses,
receipts and payments, i See Peoitt, 1.
and to fine or imprison for non-attendance or non-
Compare Earnings.
production, is incidental to the power to hear' and de- The " income of an estate " is the profit it will yield
termine causes.^ Costs follow a judgment as an inci- after, deducting the charges of management, or the
dent thereto.
Power to make by-laws is incident to general cor- rent which may be obtained for the use of it. " Rent
porate powers. and profits," " income," and " net income " of the es-
See further Accessory; Appeneaob; Appendant; tate, are equivalent expressions.*
The income from a profession, trade, or employ-
Appurtenant; Cession; Command; Grant, 2, 3; Join- ment, whiehmay be taxed, is the result of the business
der; Machinery; Messuage ;"PaiKcipAL, 1; Prohibi- for a given period, the net result of many combined
tion, 1; Railroad.
influences: the creationof capital, industry, and skill.s
nfCIPITUIl. L. It is begun: the be-
In the ordinary comi^ercial sense, " income," es-
ginning.
Formerly, when parties came to an issue, the plaint- mean netpecially or when connected
clear income.withButthe
oneword
may '"say
rent,"
thatmay
his
iff entered it, with all prior pleadings, on an issue-roll ; " income " from a certain property amounts to a par-
later, only the commencement of the pleadings was ticular sum, and yfet be speaking merely of the accru-
entered. This was termed entering the incipitur — ing rent, without regard to insurance, taxes, or repairs.
Outside of business circles we can never know whether
the'beginning.'
IWCLOSE. "Inclose" and "include" net or gross income is meant without further inquiiy.
are of the same derivation. One of their " Produce "' or " product," as a substituted word, may
relieve a will from obscurity.*
common significations is, to confine within.s " Income " is the gain which accrues from property,
See Include. labor, or business. It is applicable to the periodical
Indosure. A tract of land surrounded payments, in the nature of rent, usually made under
by an actiial fence, and such fence." See mineral leases.*
Close, 3. May mean " money," and not the eacpectation of
receiving or the right to receive money at a future
A' testator directed his executors " to inclose with an time. A note is ground for expecting income, and,
iron fence the Friends' meeting-house grounds, the in the sense of a statute taxing incomes, the amount
school-house grounds, and the Friends' burial-ground." thereof is to be returned when paid." See Bond.
These three grounds were adjoining. Held, that there
An absolute gift of all of the income of property,
was no latent ambiguity as to his intention to inclose
without limitation as to time, is a gift of the property
each of the grounds on all sides.''
INCLIIDE.s To confine within ; to com- INCOMMUTABLE. See Commutation.
prise, embrace, comprehend. See Inclose. itself.'
INCOMPATIBLE. Offices are said to
Including. A legacy of "one hundred dollars,
including money trusteed " at a bank, was held to in- be "incompatible and inconsistent " when,
tend a gift of one hundred dollars only.'
Inclusive. Embraced ; comprehended ; 1 [People V. Supervisors of Niagara, 4 Hill, 23 (1842),
Bronson, J.
opposed to exclusive. See Day ; Consisting.
2 Andrews v. Boyd. 5 Me. *203 (1828), Weston, J.
I S Pars. Contr. 67.
Compare Scott v. 'West, 63 Wis. 532, 590 (1885).
2 25 Pa. 5)6; 3 Binn. 417, 877. 3 Wilcox -v. County Commissioners, 103 Mass. 546
' 1 Greenl. Ev. § 309. (1870), Ames, J.
» See 3 Steph. Com. 566, n.; 1 Arch. Pr. 350. * Thompson's Appeal, 100 Pa. 481-82 (1882), Gordon,
s [Campbell v. Gilbert, .57 Ala. 671 (1S77), Brickell, J.; Sim's Appeal, 44 id. 347 (1863).
Chief Justice. « Eley's Appeal, 103 Pa. 306 (18S3), Sterrett, J.
? United States v. Schillinger, 14 Blateh. 71 (1876);
• Taylor v. 'Welbey, 36 'Wis. 44 (1874); Pettit v. May,
34 id. 672 (1874); Porter v. Aldrich, 39 Vt. 331 (1866); Gray v. Darlington, 15 Wall. 63 (1872).
Gundy v. State, 63 Ind. 530 (1878); 8 Hun, 269. See also 14 La. An. 815; 9 Mass. 372; 8 Duer, 426; 30
' Appeal of Hall, 112 Pa. 62 (1886). Barb. 637; 4 Abb. N. C. 400; 1 Wil. (Ind.)219; 16F.R.14.
8 L. in-claudere, to shut in, keep within. ' Bristol V. Bristol, 53 Conn. 259 (1885); Sproul's Ap-
» Brainard v. Darling, 132 Mass. 218 (1882). peal, 105 Pa. 441 (1884); 2 Roper, Leg. 371.
 533
INCOMPETENT INDEBTED

from the multiplicity of business, they can- may subsist in a third person to the diminu-
not be executed by the same person with tion of the value of the land, but consistent
care and ability ; or, when their being sub- with the passing of the fee by the convey-
ordinate and interfering with each other in-
duces a presumption that they cannot both An outstanding lease is such an incumbrance."
ance.'
So is a subsisting lien of a mechanic or material-
be executed with impartiality and honesty.'
Incoinpatibility. See Divorce.
Incumber.
man. ^ To charge or burden with a
INCOMPETENT. See Competent.
lien, or an estate. Disincumtoer. To re-
INCOMPIiETE. See Inchoate; Per- lieve of such charge or burden.
fect.
Incumbrancer. He who places a charge
INCONCLTJSrVE. See Conclude, 2.
upon his interest in realty, as, by a mortgage,
INCONSISTENT. See Condition; In-
compatible; Repugnant. or a judgment confessed.
"Incumbrance " is broader than " lien." An " in-
INCONTESTABLE. See Contest. cumbrancer" isone who has u, legal claim upon an
INCONVENIENCE. See Hardship. estate. An absolute conveyance is an incumbrance,
INCORPORATE. See Corporate. in the fullest sense of the term.*
INCORPOREAL. See Corporeal. Unincumbered. Not bound by or sub-
INCORRIGIBLE. See Reformatory. ject to anything in the nature of a lien or
INCREASE. That which grows out of burden: as, an unincumbered title. '
Incumbrances are spoken of as prior, subsequent;
land or is produced by the cultivation of it.^ first, second, etc.
Compare Accretion; Earnings; Income; Covenant against incumbrances. A
Profit.
stipulation that there are no charges against
Increased costs. See Costs. land which will diminish its value.
INCREDIBIiE. See Credit. The mere existence of any such charge constitutes
INCREMENT. See Accessory; Inci- a breach of the covenant. K in the present tense,
dent; Ice. does not run with the land. The covenantee may ex-
INCRIMINATE. See Criminate. tinguish the claim, and recover therefor."
INCULPATE. See Culpa. But in a policy of Are insurance a warranty con-
cerning "incumbrances of all kinds" includes only
INCUMBENT. 1. Resting as a duty or such as are created by the act or consent of the par-
obligation. ties, not those created by law.'
See Burden; Charge; Lien; Oncs, Cum onere;
2. One who is legally authorized to dis- Under and Sobjeot.
charge the duties of an office.3 See Vacancy. INCUR. See Expenditure.
INCUMBIT. See Probare, Probatio. Men contract debts afSrmatively; they incur liabil-
INCUMBRANCE.'' A burden, an ob- ities—the liability is cast upon them by act or opera-
struction, impediment. tion of law. "Incur" implies, then, something not
Whatever charges, burdens, obstructs, or embraced in the words " debts and contracts." '
INCURABLE. See Cure, 2.
impairs the use of an estate in land, or pre- INDEBITATUS. See Assumpsit.
vents or impairs its transfer.*
An estate or interest in or a right to land, INDEBTED. See Debt.

to the diminution of its value.* 1 Eawle, Cov. Tit. 94; Kelsey v. Bemer, 43 Conn. 138
Every right to or interest in land which (1875); Ailing v. Burlock, 46 id. 510 (1878); Fritz v.
Pusey, 31 Minn. 369 (1884), cases. See also 61 Me. 78;
> People V. Green, 46 How. Pr. 170 (1873): 4 Inst. 100; 4 Mass. 627; 2 Greenl. Ev. § 848.
Bac. Abr. See also Commonwealth i: The SheritE, 4 a Fritz v. Pusey, 31 Minn. 309 (1884), cases.
3 Redmon v. Phoenix Fire Ins. Co., 61 Wis. 3G0 (1881).
S & E. *377 (1818); Commonwealth v. Binns, 17 id. *320
(1838); State v. Buttz, 9 S. C. 179 (1877); Constitution, « Warden v. Sabins, 36 Kan. 169 (1887), Horton, C. J.
Art. I, sec. 6, cl. 3. » Gillespie v. Broas, 23 Barb. 376 (1866); 6 Abb. Pr. 38.
2 Do Blane v. Lynch, 23 Tex. 87 (1859). •See 20 Ala. 137, 166; 6 Conn. 249; 4 Ind..633; 8 id.
estate V. McCoUister, 11 Ohio, 60 (1841); County of 171 ■ 10 id. 484; 19 Mo. 480; 20 N. H. 369; 25 id. 229; 10
.Scott V. Ring, 89 Minn. 403 (1882). Ohio, 317; 6 Wis. 17; 27 Vt. 739; Eawle, Cov. Tit. 89; 2
<F. encwmbrer, to load: comhrer, to hinder: L. Washb. E. P. 668; 2 Greenl. Ev. § 248; Tud. L. C. 60.
' Hosford V. Hartford Fire Ins. Co., 127 U. S. 404
curnbrus: L. cumulM, a heap. Also spelled encum-
brance; encumber, disencumber.
6 Anonymous, 8 Abb. N. C. 63 (1876). 6 [Crandall v. Bryan, 16 How. Pr. 66 (1857): 5 Abb. Pr.
« Newcomb v. Fiedler, 84 Ohio St. 466 (1873). 169. See also 14 Barb. 202; 4 Duer, 101.
 INDECENT 534 INDENTURE

IHDECENT. Whatever shocks the sense Indemnify. To compensate for loss, sus-
of decency in people generally. tained or anticipated.
At common la-w, indictable as a misdemeanor. Ex- Indemnitor. He who undertakes to pro-
amples; Exposure of the person in public, exhibiting tect another from loss that may be incurred
pictures of nude persons. What are acts of indecency
is generally to be decided by a jury. on account of an act or action by the latter in
Indecent assault ; indecent exposure ; inde- behalf of the former. Opposed, indemnitee.!
cent prints or publications. These offenses Property insurance is a contract for indemnity.
(largely self -defining) are punishable, in England, un- Officers selling personalty, under executions, require
der statute 24 & 25 Vict. (1861) c. 100, s. 52; in the bonds of indemnity against damages recoverable for
United States, by statute in each State; in Pennsyl- trespass.'^ Persons who distribute trust moneys re-
vania, by the Crimes Act of March 31, 1860, § 44.1 quire bonds for pj-o rata repayment in the event of
In Rev. St. § 3893, which forbids mailing indecent unexpected claims arising; and settlements and wills
matter, "indecent" means immodest, impure, not may contain clauses of indemnity for the protection
simply coarse, nor even profane. 2 of executants.
But a sealed letter is not within the prohibition.^ There is difference between an agreement to in-
Public mdeeency. Has no fixed legal demnify and an agreement to pay.^
See Damnum, Damniflcatus; Injunction; Insdhance;
meaning ; is too vague to imply, of itself, a
Surety.
definite offense. The courts, by a kind of
3. Statutes designed to relieve the occu-
judicial legislation, have usually limited the
pant of an office who has failed to do some
operation of the expression to public displays
act necessary fully to qualify him for the
of the naked person, the publication, sale, or
discharge of the duties of the oflice, or to ex-
' ' exhibition of obscene books and prints, or the empt from punishment persons guilty of
exhibition of a monster, — acts which have a
direct bearing on the public morals, and offenses, have been called "acts of indem-
nity." See Amnesty.
afi'ect the body of society.* INDENTURE.! a deed: a writing
The place is " public " if the exposure is such that
it is likely to be seen by a number of casual observers. ° sealed and delivered.*
"Where the bodily injury from an indecent assault is A deed inter partes, or a mutual deed.6
trifling, the gravamen of an action for damages must Named from being indented or cut on the toj) or
be the mental suffering. In such case evidence is al- the side by a waving line or a line of .indenture so as
ways admissible to show that the plaintiff was a to fit the counterpart from which It is supposed to
woman of imchaste character.* have been separated.*
In an action for defamation, words which in their Formerly, when there were more parties than one
common acceptation charge the crime of public in- to a sealed instrument, a copy for each was made, and
cut or indented (in acute angles instar denfium; like
decency are actionable per se.''
See Lewd; Morals; Obscene. the teeth of a saw, but, later, in a waving line) on the
IlfDEPEASIBLE. See Defeasance. top or side, to tally with the other; which deed, so
INDEFINITE. See Definite. made, was called an "indenture." Both parts were
written on the same piece .of pardhment, with some
INDEMNITY.^ 1. Compensation for a word or letters between them and through which the
loss sustained. S. An engagement to make parchment was cut so as to leave half on each part.
good loss that may be sustained : a bond of Later, the indenting was not through any word at all;
indemnity.' and, in time, the term " indenture " served merely to
give name to the species of deed. The part executed
> See Cooley, Const. Lim, 748; 2 Whart. Cr. L. §§ 2386, by the grantor was the original, the others counter-
2.544; 2 Chitty, Cr. L. 42; 1 Kuss. Cr. 326; 2 S. & E. *91; parts. Where all the parties executed every part,
128 Mass. 52; 2 C. & K 9a3. each part was an original. Opposed, defid-j)oH.T
» United States v. Smith, 11 F. E. 663, 665 (188S), Barr, By 8 and 9 Vict. (1848), c. 106, the necessity for in-
District Judge. denting was q.bolished in the case of ordinary deeds,
3 United States v. Lof tis, 12 F. E. 671 (18S2), Deady, J. and by 2i Vict. (1861), c. 9, as a requisite in gifts of land
« McJunkins v. State, 10 Ind. 145 (1858), Hanna, J. to charities.'
See Jennings v. State, 16 id. 335 (1861); Ardery v. State,
56 id. 328 (1877). '30 Minn. 321; 15 id. 461.
2 87 111. 243.
s Van Houten v. State, 46 N. J. L. 17 (1884), Beasley,
Chief Justice. s Wicker v. Hoppock, 6 Wall. 99 (1867).
•Mitchell V. Work, 13 E. I. 646 (1882), cases. * L. L. indenture, to notch: L. dejis, a tooth.
' Seller v. Jenkins, 97 Ind. 430 (1834), cases, * Overseers of Hopewell v. Overseers of Amwell, '
6 L. indemnitas; in-demnis, unharmed, free from 6 N. J. L. 176 (1822).
dammlm, hurt, loss. a Bowen v. Beck, .94 N. Y. 89 (1883).
' See Weller v. Eames, 15 Mmn. 467 (1870); 2 McCord, ' 2 Bl. Com. 295; 2 Washb. E. P. 687; Williams, E. P.
146-47; 1 Eeeve. Hist. Eng. Law, 89.
 INDEPENDENCE 535 INDIAN

Indent, n. Any contract or obligation inally, containing instruments made or de-

in writing ; but may have a narrower signifi- livered to plaintiffs.
cation.! Indexes, directed by statute to be made, are de-
INDEPENDEIfCE. The Declaration of signed tofacilitate the examination of records, not to
protect the interests of persons whose conveyances
Independence, the state paper issued July 4, are recorded. In such case the failure of the oflBcer to
1776, by the "Eepresentatives of the United make the index will not prejudice the title of a grantee
States of America," was, " that these United or mortgagee.' See Idem, Sonans.
Colonies, are and of Eight ought to be, Free INDIAN. Includes descendants of Indi-
and Independent States ; that they are Ab- ans who have an admixture of white or
solved from Allegiance to the British Crown, negro blood, provided they retain their dis-
and that all political connection between tinctive character as members of the tribe
them and the State of Great Britain is and from which they trace descent. -
ought to be totally dissolved ; . . . and The United States adopted the principle originally
established by European nations, that the aboriginal
that as Free and Independent States they tribes were to be regarded as the owners ot the terri-
have full Power to levy War, conclude Peace, tories they respectively occupied.' See Discovery, 1.
contract Alliances, establish Commerce, and Indians who maintain their tribal relations are the
to do all other Acts and Things which Inde- subjects of independent governments, and as such not
in the jurisdiction of the United States, because the
pendent States may of right do." 2 Indian nations have always been regarded as distinct
Tlie inherent rights which lie at the foundation ot
political communities between which and our govern-
all action between fellow-men ai'e happily expressed ment certain international relations were to be main-
in the preamble, viz.: "We hold these truths to be tained. These relations are established by treaties to
self-evident " — that is, so plain that their truth is rec- the same extent as with foreign powers. They are
ognized upon their mere statement, — "that all men treated as sovereign communities, possessing and ex-
are endowed " — not by edicts of emperors, or decrees ercising the right of free deliberation and action, but,
of Parliament, or acts of Congress, but " by their in consideration of protection, owing a qualified sub-
Creator with certain iualienable rights" — that is,
rights which cannot be bartered, given, or taken away jection to the United States.*
If the tribal organization of Indian bands is recog-
except in punishment of crime, — "and that among nized by the political department ot the National gov-
these are life, liberty, and the pursuit of happiness,
ernment as existing; that is to say, if the government
and to secure these" — not grant them — "govern- makes treaties with and has its agent among them,
ments are instituted among men, deriving their just
paying annuities, and dealing otherwise with "head
powers from the consent of the governed." " See men " in its behalf, the fact that the primitive habits
Confederation; Happiness. and customs of the tribe have been largely broken
IndependenoB Day. See Holiday. into by intercourse with the whites, does not authorize
INDEPENDENT. See Dependent; a State government to regard the tribal organization
Covenant. as gone, and the Indians as citizens of the State where
INDEX. A portion of a book exhibiting, they are and subject to its laws.^
When members leave their tribe and become
in alphabetical order, and in more or less
merged into the mass of the people they owe complete
detail, the contents of the whole volume; or,
a book in itself containing, in like order, ' Nichol V. Henry, 89 Ind. 54, 58-59 (1883); Bedford v.
references to the contents of a series of vol- Tupper, 30 Hun, 176 (1883). See also .35 Ala. 23; .50 Ga.
umes. Latin plural, indices; English plural, 337; 19 111. 486; 29 La. An. 116; 81 id 33; 44 Mich. 1£3;
indexes. 40 Mo. 472; 87 N. Y. 257; 16 Ohio St. 543; 76 Pa. 398; f2
id. 116; 11 W. N. C. 567; 24 Vt. 327, 338; 4 Biss. 437,445;
Direct index. Exhibits the names of
Cooley, Torts, p. 387, cases.
grantors, lessors, mortgagors, and other par- 2 Wall V. Williams, 11 Ala. 836 (1847). See Relation
ties of the first part to recorded instruments. of Indians to Citizenship, 7 Op. Att.-Gren, 746, 750
Indirect or reverse index. Gives the (1856); Campan v. Dewey, 9 Mich. 435 (1801).
s United States v. Rogers, 4 How. 667 (1846): Johnson
names of grantees, lessees, mortgagees, and V. M'Intosh, 8 Wheat. 574, 584 (1823); United States v.
other like parties to whom recorded instru- Kagama, 118 U. S. 331-82 (1886); 3 Kent, 378; 2 Washb.
ments were executed ; also called ad seotam R. P. 581.
« Exp. Reynolds. 18 Alb. Law J. 8 (U. S. D. C, W. D.
index: literally, at the suit of, that is, orig-
Ark., 1878), Parker, J. See also Cherokee Nation v.
Georgia, 5 Pet. '16 (1831); Worcester v. Georgia, 6 id.
■ United States v. Irwin, 5 McLekn, 183-84 (1851). 515, 5&4 (1832); Dred Scott v. Sandford, 19 How. 4C3
2 See Rev. Stat., 2 ed., pp. 3-6. (1856); Cherokee Trust Funds, 117 U. S. 288 (1686); 2
s Butchers' Union Co. v. Cresent/City Co., Ill U. S. Story, Const. §§ 1097-1100; 3 Kent, .308-18; 50 Mich. 585.
T56 (1884), Field, J. ' The Kansas Indians, 5 Wall. 737, 756 (1866), Davis, J.
 536 INDICIA
INDIAN

allegiance to the government of the United States and protection. The inequality between the parties is to
are subject to its courts." be made good by the superior justice which looks only
A white man who is incorporated with a tribe by- to the substance of the right, without regard to tech-
adoption does not thereby become an Indian, so as to nical rules framed under a system of municipal juris-
cease to be amenable to the laws ot the United States prudence, formulating the rights and obligations of
or to lose the right to trial in their coui'ts.* private persons, equally subject to the same laws. . .
Under the Constitution " Indians, not taxed " are A treaty is not to be read as rigidly as a document be-
not counted in apportioning representatives and direct tween private persons governed by a system of- tech-
taxes among the States; and Congress has power to nical law, but in the light of that larger reason which
regulate commerce with the Indian tribes. The tribes constitutes the spirit <)f the law of nations, i
are alien nations, distinct political communities, with Indian country. That portion of the
whom the United States have habitually dealt either
through treaties or acts of Congress. The members
United States declared such by act of Con-
owe immediate allegiance to their several tribes, and gres ;not, a country owned or inhabited by
are not part of the people of the United States. They Indians in whole or in part.
are in a dependent condition, a, state of pupilage, re- ( As, in the act declaring it a crime to introdnce
sembling that of a ward to his guardian. Indians and spirituous liquors in such country.^
their property, exempt from taxation by treaty or Applies to all the country to which the Indian title
statute of the United States, cannot be taxed by any has not been extinguished, whether within a reserva-
State. General acts of Congress do not apply to Indi- tion or not, and whenever acquired.*
ans, unless so expressed as to clearly manifest an in- Indian Territory. An act approved February 15,
tention to include them. The alien and dependent 1888 (26 St. L. 33), provides that any person hereafter
condition of the members of the tribes cannot be put convicted in the United States courts having jiunsdic-
off at their own will, witfiout the assent of the United tion over the Indian Terrritory or parts thereof, of
States. They have never been deemed citizens, ex- stealing any horse, mare, gelding, filly, foal, ass or
cept under explicit provisions of treaty or statute to mule, when said theft is committed in the Territory,
that effect; nor were they made citizens by the Four- shall be punished by a fine of not more than one thou-
teenth Amendment. 3 sand dollars, or by imprisonment not more than fifteen
While the government has recognized in the Indian years, or by both, at the discretion of the court.
tribes heretofore a state of semi-independence and Sec. 2. That any person convicted of any robbery
pupilage, it has the right and authority, instead of or burglary in the Territory shall be punished by a fine
controlling them by treaties, to govern them by acts not exceeding one thousand dollars, or imprisonment
of Congress: they being within the geographical lim- not exceeding fifteen years, or both, at the discretion
its of the United States, and necessarily subject to the of the court; Provided, Tliat the act shall not be con-
laws which Congress may enact for their protection strued to apply to any offense committed by one In-
and that of the people with whom they came in con- dian upon the person or property of another Indian,
tact. A State has no power over them as long as or so as to repeal any former act in relation to robbing
they maintain their tribal relations: the Indians then the mails or robbing any person of property belonging
owe no allegiance to the State, and receive from it no to the United States; nor shall the act affect or apply
protection.* to any prosecution now pending, or the prosecution of
In construing a treaty, if words be used which are any offense already committed.
susceptible of a more extended meaning than their Sec. ,3. That all acts inconsistent with this act are
plain import, as connected with the tenor of the treaty, hereby repealed: Provided, however. That such acts
they should be considered as used in the latter sense. shall remain in force for the punishment of persons
How the words were understood by the unlettered who have heretofore been guilty of the crime ot lar-
people, rather than their critical meaning, should ceny in the Territory.
form ■ the rule of construction.* See Commerce; Expatriation; Extradition, 1;
The relations between the United States and the Grain; Partus; Pueblo..
different tribes being those of a superior toward an INDICATE. See Show.
inferior who is under its care and control, its acts INDICIA. L. Marks; signs; appear-
touching them and its promises to them, In the execu- ances! color.
tion of its own policy and in the furtherance of its In civil law, circumstantial evidence — facts which
own interests, are to be interpreted as justice and rea-
give rise to inferences. In common law. indications
son demand in all cases where power is exerted by
the strong over those to whom they owe care and ' Choctaw Nation v. United States, 119 U. S. 28 (1886),
Matthews, J. On Indian citizenship, see 20 4m. Law
' Bxp. Reynolds, ante. Rev. 188-93 (1886), cases.
■^United States v. Rogers, 4 How. 567(1846); 3 Op. i" United States v. Seveloff, 2 Saw. 311 (1873); Peloher
Att.-flen. 693; 4 id. 258; 7 id. 174. V. United States^ 3 MeCrary, 510, 515 (1S83), cases;
'Elk V. WilMns, Iia U. S. 99-100,-102 (T884), cases, United States ti. Martin, 8 Saw. 473 (18E3), cases; Forty-
Gray, J. Three Cases of Brandy, 14 F. R. 639-42 (1882), cases;
« United States v. Kagama, 118 U. S. .375, 381-82 (1886), United States v. Earl, 17 id. 75 (1883), cases; United
cases, Miller, J. Act 3 March, 1871: R. S. § 2070; 119 States V. Holliday, 3 Wall. 407, 416-19 (1865).
a. s. 27. > Exp. Crow Dog, 109 U. S. 656, 561 (18£3). See also
6 Worcester v. Georgia, 6 Pet. *582 (1832), M'Lean, J. United States v. Le Bris, 121 id. 287 (18S7): R. S. § 2139.
 537
INDICTMENT INDICTMENT

of character: as, indicia of authority, of fraud, of Where the offense is a common-law offense, the
title.' See Badge, 8. technical words of the common law must be usec\;
INDICTMENT.2 A written accusation where the offense is statutory, the substance of the
of one or more persons of a crime or misde- words may be followed.'
For a statutory offense, the charge must be so laid
meanor, preferred to and presented upon as to bring the case within the description of the of-
oath by a grand jury.' fense given in the statute, alleging distinctly the
Indict. To charge with crime by means essential requisites. Nothing is to be left to implica-
of an indictment. Indicted. Charged by tion or intendment. It is sufficient to pursue the
words of the act, or, if that would leave an ambiguity,
indictment. Indictor atid indictee are not
then the substance and legal effect of the words.^
now in use. Indictable. Admitting of The I'ule that a statutory offense need not be charged
prosecution by indictment. in the words of the statute does not apply to tech-
nical terms and words of art which have acquired
"Rill of indictment. The written accusa- a conventional meaning and cannot be dispensed
tion presented to the grand jury, and found
with, such as "murdered," "feloniously," and the
by them to be a "true bill" or " not a true like. But every material ingredient, constituting the
description of the offense in the statute, whether an
bill."
The indictment intended by the Vth act done, knowledge had, an Intent or purpose enter-
tained, or the existence of any collateral fact, must be
Amendment is the presentation to the pi'oper
afarmatively stated in plain, direct, intelligible lan-
court, under oath, by a grand jury, duly im-
paneled, of a charge describing an offense Where tue statute simply designates the offense,
against the law for which the party may be guage. = not in express terms name its constituent
and does
elements, the information must sometimes be ex-
punished.''
Ko change can be made in the body of such instru- terms.''
statutoryprovisos
When panded beyond the contains
a statute and exceptions in
ment without a re-submission to the grand jury — ex-
distinct clauses, it is not necessary to state that the
cept where statutes prescribe othei-wise. But changes defendant does not come within the exceptions, or to
may be made in the " caption." *
The object of indictment is, first, to furnish the ac- negative the provisos. But if the exceptions are con-
cused with such a, description of the charge against tained in the enacting clause, it will be necessary to
him as will enable him to make his defense, and avail negative them, that the description of the crime may
himself of his conviction or acquittal for protection in all respects correspond with the statute.'
Where an offense may be committed by doing any
against a further prosecution for the same offense;
one of several things, the indictment may, m a single
and, second, to inform the court of the facts alleged,
so that it may decide whether they are suflftoieut in count, group them together, and charge the defendant
with having committed them aU, and a conviction
law to support a conviction if one should be hj.d.'
The object is, that the defendant may know what may be had of any one of the things, without proof of
to meet; that he may plead a ;Eormer acquittal or con- the commission of the others."
Several offenses of the same class or kind, growing
viction; and that he may take the opinion of the court
before which he is indicted, by demurrer or motion in out of the same transaction, though committed at dif-
ferent times, may be joined in the same indictment in
arrest of judgment, or, the opinion of a court of error
on the sufBciency of the statements in the indictment." separate counts.'
Where the same offense is charged in different
Facts are to »e stated, not conclusions of law alone.
A crime is made up of acts and intent; and these must
V. Cook, 17 WaU. 173-77 (18T3), cases; United States v.
be set forth with reasonable particularity of time, Hess, 184 U. S. 483 (1888), cases.
place, and cu-cumstances. Every ingredient of the 'United States i). Bachelder, 2 Gall. *18 (1814),
offense must be clearly alleged. Where the definition
Story, J.; Cannon d. United States, 116 U. S. 78 (1885),
of an offense includes generic terms, the indictment
Cd.&6S

must state the species.' ' United States v. Staats, 8 How. 44 (1850), Nelson, J.
> '60 Mo. 420; 1 Pars. Contr. 45. a Edwards v. Commonwealth, 19 Pick. 125 (1837),
ar. indicter, to accuse: L. L. indifMre, to point out: Shaw, C. J. See 4 Bl. Com, 307, 287; 11 F. R.,240;
L. indicere, to proclaim. 2 Flip. 319; 87 Ind. 70; 30 Kan. 365, 612; 17 Nev. 280;
3 4 Bl. Com. 302. See also 4 Col. 203; 12 Conn. 452; 4 60 Pa. 848; 77Va. 54.
Mich. 424; 72 Mo. 106; 13 Wend. 317; 21 id. 570;
11 Ohio, 4 State V. Gavigan, 36 Kan. 327 (1887); 30 id. 365. See
cases:
n; 19 Ohio St. 255. generally State v. CampbeU, 28 Tex. 46 (1867),
'Exp Bain, 120 U. S. 1, 6-0 (1887), cases. Miller,
J. 94 Am. Dec. 863-58 (1888), cases.
And see 26 Am. Law Reg. 416-47 (1887), cases. » 1 Chitty, Cr. L. 283 6, 284: United States v. Britton,
17 Wall.
» United States v. Cruikshank, 92 U. S. 558 (1875), 107 U. S. 670 (1882); United States v. Cook,
173-74 (1872), cases.
29
njnited States v. Bennett, 16 Blatoh. 350-51
(1879), » Bork V. People, 91 N. Y. 13 (1863); State «. Gray,
E.,3 Q. B. Minn. 144 (1882), cases.
Blatchford, J.; Bradlaugh v. The Queen, L.
616 (1878). „ ., ^ c. * 7 United States v. Wentworth, 11 F. E. 58 (1882); Exp.
§ 1024.
' United States v. Cruikshank, supra; United
States Peters, 13 id. 461 (1880); ib. 464, cases; R. S.
 INDIFFERENT 538 INDORSE

counts, the whole indictment may be submitted to intolerable and her lite burdensome. Indignities to the
the jm-y, with instructions, it they find the defendant person need not be such as would endanger life or
guilty upon any count, to return a general verdict of health; they may be such as would render life too hu-
guilty; otherwise, where one count is had, and the
miliating tobe borne.'
evidence thereon is submitted with the rest, against In North Carolina, the indignity must be such as
objection.' See Bad, 2. may be expected seriously to annoy a woman of ordi-
For a common-law offense, the conclusion of an in- nary good sense and temper, and must be continued
dictment is"against the peace and dignity" of the in, so that it may appear to have been done willfully
commonwealth or State; for a statutory offense, or at least consciously."
" against the form of the statute in such case made That condition which renders life burdensome must
and provided."'^ See Amendment, 1; Form, 2, Of be shown to exist in fact, and not be merely inferred
statute. from facts.' Compare Cruelty, 1.
An indictment is to be distinguished from a pre- INDIKECT. See Direct.
sentment and an inform atioi^, gg. v. INDISPUTABLE. See Presumption.
See also Abbreviations; Caption, 2; Challenge. 2;
Commencement; Confession, 2; Copt; Crime; De- INDIVIDUAL. Pertaining or belong-
mubrbr; Divers; Evidence; Exceeding; Idem, So- ing to a single or distinct person, considered
nans; Identity. 1; Ignore; Indorse, 1; Infamy; Jeo- apart from a number of persons jointly asso-
fail; Joint; Jury; Negative; Or, 2; Nolle Prosequi; ciated or involved; personal; private: as,
Nolo Contendere; Place, 1; Quash; Sentence; Xhen
AND There; Verbum, In hsec. individual — assets, liability. See Liability ;
Partnership ; Contribution.
rWDIFFERENT. 1. Said of an ap-
Individuals. See Police, 3 ; Welfare.
praiser, whei'e property has been taken in
INDIVISIBLE. See Division, 1.
execution: impartial, free from bias. 3
2. Said of a juror: that the mind is in a INDORSE.* 1. To write upon the back
state of neutrality as respects the person and of any instrument or paper : as^ to indorse a
the matter to be tried; that there exists no deed with the day or book of its record; to
bias, for or against either party, calculated indorse a pleading filed with the time of re-
to operate upon him ; that he comes to the ceipt, payment of costs, etc. ; to indorse a
trial vpith a mind uncommitted and prepared warrant of arrest prior to action under it in
to weigh the evidence in impartial scales.* another county.*
Compare Impartial. In many cases, simply to write upon. In
INDIGENT. See Pauper; Pock. this sense words may be indorsed upon the
A gift "to aid indigent young men" of a certain face of a paper, even upon the face of a bill
town or State "in fitting themselves for the evangel- of exchange or promissorj' note.^
ical ministry," is not void for uncertainty. The words While the word has no definite technical meaning,
" indigent " and " evangelical " are sufficiently definite, other than that of some writing "upon the back," its
within ordinary intelligence. "They describe a man particular meaning is always determined by the con-
.who is without sufficient means of his own, and whom text, if in writing, and by its connection, if in spoken
no person is bound and able to supply, to enable him
to prepare himself for preaching the Gospel." ^ Indorsement.
words. ^ Has its ptimitive and
INDIGNITY. What acts or course of
popular sense of something written on the
conduct will amount to ■ such indignities as outside or back of a paper, on the opposite
constitute a cause for divorce seems to be
side from which something else had been
nowhere defined, and they are perhaps inca- previously written, when the context shows
pable of exact specification. that that sense is necessary to give effect to
In Pennsylvania, a single act of indignity is not
enough: there must be such a course of conduct, or
continued treatment, as renders the wife's condition ' May V. May, 62 Pa. 210 (
" Miller v. Miller, 78 N. C. 106 (1878).
' Commonwealth v. Boston, &c. E. Co., 133 Mass. 3 Cline V. Cline, 10 Nev. 474-77 (1881), cases.
391-92 (1882); lU Gray, 11, 17; 120 Mass. 372. ^ F. ejidosser, to put on the back of: en, L. in, on;
" See Insall v. State, 14 Tex. Ap. 144(1883); Holdent). dos, L. dorsum, the back. Indorse seems to be prfr
State, 1 id. 234 (1876), cases. ferred to endorse.
= Fox V. Hills, 1 Conn. 307 (1815) ; Mitchell i). Kirtland, 'See 2 Bl. Com. 408; Hartwell v. Hemmenway, 7
7 id. *231 (1828); Fitch v. Smith, 9 id. *i6 (1831). Pick. 119 (1828); Marian, etc. Gravel Road Co. v. Kes-
■i People V. Vermilyea, 7 Cow. 123 (1887). singer, 66 Ind. 653 (1879).
' Storr's Agricultural School v. Whitney, 54 Conn. 3S2 •Commonwealth v. Butterick, 100 Mass. 16 (1868); 2
(1887), cases, Pardee, J.: 35 Alb. Law J. 387, cases. Bish. Cr. L. | 570 a. i
Compare Hunt v. Fowler, 121 111. 269 (1887), cases: 36 'Commonwealth v. Spilman, 124 Mass. 839 (1878);
Alb. Law J. 113; ib. 115, cases. Davis V. Town of Fulton, 52 Wis. 663 (1881).
 INUOESE 589 INDORSE

the pleading or other instrument in which it out recourse" is inadmissible.' See further Re-
course.
occurs. 1
2. For the person to whom or to whose Restrictive indorsement. Restrains nego-
order a bill cf exchange or a promissory note tiability toa particular person, or for a special
is payable, to write his name on the back of
"Unqualified" and "unrestricted" designate that
such bill or note in order to assign over his purpose.2
form of indorsement wliich is most common — the
property therein. ^ wholly unmodified form. And this, the ordinary con-
That is the common meaning, but it is not impos- tract, imports: as to a bill, that the indorser will pay
sible to indorse by placing the name upon the face of it at maturity, if, on presentment for acceptance, it is
the bill or note.^ not accepted, and he is duly notified of the dishonor;
Indorser. He who writes his name upon and as to a hill or note, that the indoi'ser will pay it if
a negotiable instrument prior to transferring it is not duly paid by the acceptor or maker, and he is
it by delivery. Indorsee. He to whom the duly notified; that it is genuine; that the signatui'cs of
the immediate parties, and, in the better opinion, of
instrument is delivered ; the transferee. prior indorsers, are genuine; that it is a valid and sub-
Indorsement. The act by which a bill sisting obligation according to the ostensible relations
or note payable to order is transferred ; the of the parties; that the original parties, and, in the bet-
ter opinion, prior indorsers, could bind themselves as
transfer of the legal title to any such instru- they have assumed to do; and that the indorser has a
ment.
lawful title and the right to transfer it.^
As far as it operates as a transfer of the instru-
An indorser's contract is a new one, as compared
ment, itis an executed contract; and also, since it im-
ports, unless restricted, future liability in the indorser, with the maker's. He is not a surety, as is sometimes
it is an esecutory contract. But every contract, said, for a surety is a joint promisor with the principal.*
The maker is liable without demand of payment —
whether executed or executory, evidenced by a writ- his undertaking being conditional; but the indorser
ten instrument, must be delivered and accepted.
undertakes 'to pay only if the maker does not pay,
Hence, to complete a contract of indorsement, in ad- which makes it necessary for the holder to take proper
dition to writing the name of the payee on the back,
steps to obtain payment from the maker, from which
the further act of delivering the instrument to the per- it follows that his contract is that due diligence shall
son to whom title is to be transferred is necessary.
be used to that end.^
Indorsing, then, imports delivery.* An indorser is only conditionally liable. His re-
Accommodation indorsement. In effect, a
sponsibility isa contingent one, and, ordinarily, per-
loan of the indorser's credit without consid- formance of the condition to make demand of the
eration. maker and give notice of his default in due time is an
Blank indorsement. The form in which essential part of the title of one who asserts an indor-
ser's liabihty. The reason is, that the indorser, if
the indorser does not name the transferee.
looked to for payment, may have the earliest oppor-
Indorsement in full. Contains the name of tunity to take steps for his own protection. There is
the transferee.^ much inconsistency in the decisions whether demand
and notice is necessary when they by no possibility
Irregular indorsement. An indorsement could have enabled him to protect himself. The best
which departs from common practice as to considered cases hold that he is entitled to notice al-
the place where the name should be written.^ though he has taken indemnity from the maker —
Qualified indorsement. By this form the since that may prove insul^cient. In general, every
indorser limits or modifies his liability as indorser ought to have notice whenever he has a rem-
edy over against the maker. Where, by agreement
ordinarily understood. with the maker, the indorser has become the principal
The words used are "without recourse:" without debtor, no notice is needed— -for the indorser then has
liability in case of non-acceptance or non-payment.
no remedy over.'
They are written after the indorser's signature.'
Evidence that an indorsement in blank was " with-
1 Martin v. Cole, 104 U. S. 30, 36-80 (1881), cases. See
generally, as to parol explanations of indorsements,
> Powell V. Commonwealth, 11 Gratt. 830 (1854). 18 Cent. Law J. 382-86 (18841, cases,
2 8 Bl. Com. 468. 2 See Armour Banldng Co. v. Riley County Bank, 3D
s Haines v. Dubois, 30 N. J. L. 268 0863), cases; Com- Kan. 165 (1883); 11 R. I. 119. Suffixes as descriptio
monwealth V.Butterick, ante; Clark v. Sigourney, personcB, Falk v. Moebs, 127 U. S. 597, 602-7 (1888),
infra.
' Clark V. Sigourney, 17 Conn. »619 (1846). ' See 1 Daniel, Neg. Inst. 498.
» See Byles, Bills, lBO-51, by Sharswood. < Ross V. Jones, 22 Wall. 588 (1874), cases.
• See 24 Cent. Law J. 3-6 (1887), cases. > Cox V. Nat. Bank of New York, 100 U. S. 713 (1879),
' Story, Prom. Notes, i§ 138, 140; Bailey v. Falconer, cases.
33 AJa. 539 (1858). • Ray V. Smith, 17 Wall. 415 (1873), Strong, J.
 540
INDUCEMENT INFAMY

An indorser may sue all prior parties concurrently or must be punished by imprisonment in the peniten-
or successively, but can have only one satisfaction. ^ tiary does not necessarily make it, in law, infamous.'
Contracts of indorsement are to be construed ac- The Fifth Amendment had in view the rule of the
cording to the law of the place where made, unless it common law, governing the mode of prosecuting
appears that they are to be performed according to those accused of crime, by which an information by
the laws of another State. ^ the attorney-general, without the intervention of a
See further Accept, S; Accommodation; Assign, 2; grand jury, was not allowed for a capital crime, nor
Bearee; Blank.; Descbiptio Personae ; Exchange, 3, for any felony ; rather than the rule of evidence, by
Bill of; Faith, Good; Guaranty; Negotiate, 2; which those convicted of crimes of a certain character
Note, 2; Protest, 3. were disqualified to testify as witnesses. In other
words, of the two kinds of infamy known to the law of
INDUCEMEM'T, 1. In pleading, matter England before the Declaration of Independence, the
merely introductory to the essential ground Constitutional Amendment looked to the one founded
or substance of the complaint or defense, or on the opinions, of the people respecting the mode of
explanatory of it or of the manner in which pimishment, rather than to that founded in the con-
it originated or took place.^ struction of law respecting the future credibility of
Being explanatory, it does not, in general, require the delinquent. The leading word " capital '' describ-
exact certainty. Matter unnecessarily stated may be ing the crime by its punishment only, the associated
stricken out, or need not be proved.* words, " or other infamous crime " must, by an ele-
Thus, in trover, the loss and the finding of the mentary rule of cpnstri^ction, be held, to include any
goods, and, in nuisances, the possession of the subject crime subject to infamous punishment, even if they
injured, are alleged by way of inducement.^ should be held to include also cirimes infamous in their
Thus, also, in a suit upon a negotiable coupon, ex- nature, independejitly of the pimishment- affixed to
planation ofthe relation the bond and the coupon have them. Having regard to the object and the terms of
held, is by way of inducement: in the nature of a pre- the Amendment, as well as to the history of its pro-'
amble, stating the circumstances under which the con- posal and adoption, and to the early understanding
tract to pay interest was made.* and practice under it, no person can be held to answer,
Commonly commences with the word- "whereas." without presentment or indictment by a grand jury,
The importance of stating matter of inducement has for any crime for which an infamous punishment may
been much relaxed by legislation. See Amendment, 1. be lawfully imposed by the court. The t«st is whether
2. In the sense of motive, see Conpession, 3; Con- the crime is one for which the statutes authorize the
sideration. court to award an infamous punishment, not whether
INDULGENCE. See Forbearance ; the punishment ultimately awarded be an infamous
Favor ; Surety. one; when the accused is in danger of being sub-
INEBRIATE. See Intemperate. jected to an infamous pimishmeht if convicted, he has
the right to insist that he shall not be put upon his
INELIGIBLE. See Eligible.
trial except on the accusation of a grand jury. What
INEQUITABLE. See Equity, Equi- punishments shall be considered as infamous may be
table. affected by the changes of public opinion from one
INEVITABLE. See Accident; Neces- age to another. For more than a century, imprison-
sity. ment at hard labor in the State prison or peniten-
tiary has been considered an infamous punishment,
INFAMY. The condition of being with- in England and America. Such imprisonment with or
out repute, honor, or character: disqualifi- without hard labor is at present considered infamous
cation to testify as a witness or to sit as a
pimishment.
The term 8" infamous " —without fame or good re-
juror, on account of conviction of a heinous
port— was applied at common law to certain crimes,
offense. Whence infamous.
upon conviction of which a person became incom-
" No person shall be held to answer for a capital petent to testify as a witness. This was upon the
or otherwise infamous crime unless on a presentment theory that a person would not commit a crime of
or indictment of a Grand Jury, except in cases arising such heinous character, unless so depraved as to be
in the land or naval forces, or in the Militia, when in wholly insensible to the obligation of an oath, and,
actual service in time of War or public danger. . ." * therefore, nnworthy of credit. These crimes are
''Infamous crime " is descriptive of an offense that treason, felony, and the crimen falsi. As to what or
subjects a person to infamous punishment or prevents whether all species of the last are infamous, there is
his being a witness. The fact that aa offense may be
1 United States v. Maxwell, 3 Dill. 276 (1875), cases,
1 Bi-ooklyn City, &c. R. Co. u. Nat. Bank of the Re- Dillon, Cir. J.; Peoples. Sponsler, 1 Dak. 297 (1876);
public, 102 U. S. 35-37 aSSO), cases. Jones V. Robbins, 8 Gray, 34S-49 (1857)
2 Briggs V. Latham, 36 Kan. 259-61 (1887), cases. 3Mackiu v. United States. 117 U. S. 330-53 (1886),
3 [Gould, Plead. 42. Gray, J.; Exp. Wilson, 114 id. 429, 422-29 (1885), cases,
* City of Kenosha v. Lamson, 9 Wall. 482 (1869); 1 ,Gray, J. ; Parkinson v. United States, 121 id. 281 (1887).
Chitty, PI. 290. See also Star-Route Cases (United States v. Brady). 3
6 Constitution, Amd. V. Cr. Law Mag. 69 (1881).
 INFANT INFIRM
541

disagreement among the authorities. . , A crime is At common law, the father is liable for torts com-
not infamous, within the Fifth Amendment, unless it mitted by an infant."
not only involves the charge of falsehood, butimay His disabilities are really privileges: to secure him
also Injuriously affect the public administration of from loss by improvident acts."
justice by tlie introduction therein of falsehood and In England, the lord chancellor is the general
fraud.i guardian of all infants. The origin of the jurisdiction
Under the Constitution and statutes there are no of the court of chancery is in the crown as parens
infamous crimes except those therein denounced as
capital, or as felonies, or punished with disqualiflca- See further Abandon, 2(2); Affirm, 2; Age; Dis-
tiou as witnesses or jurors. If Congress makes a patriae.^
abilty; Capax; Child; Discretion, 1; Friend, Next;
crime non-infamous, it can be pui'sued through in- Guardian; Laches; Necessaries, 1; Negligence;
formation. . Stealing from the mails has not been Oath; Orphan; Parent; Ratification; Void; Ward, 3.
made infamous.^ INFANTICIDE. See Homicide.
In early times the character of the crime was deter- LNTEOrPMENT. See Feoffment.
mined by the punishment inflicted, but in modem times
the act itself, its nature, purpose, and effect, are INFER. To bring a result or conclusion
loolced at in determining whether it is infamous or from something back of it, that is, from some
not. Passing counterfeit money is not an infamous evidence or data from which it may logic-
crime. 5
Infamous persons are such as maybe challenged ally be deduced.*
To " presume " is to take or assume a matter be-
as jurors propter delictum; and, therefore, they shall forehand, without proof — to take for granted.*
never be admitted to give evidence to inform that Inference. A deduction or conclusion
jury with whom they are too scandalous to associate.*
See Crimen, Falsi; Turpitude. from facts or propositions known to be true.^
See Presumption.
HfPANT.s A person under the age of
INPEMOB. 1. The lower of two grades
legal capacity ; a minor.
Infancy. The status of one who has not of authority or jurisdiction ; subordinate : as.
attained his majority ; minority ; non-age. an inferior court or tribunal, an inferior offi-
An infant has a mind, but it is immature, insufii- cer. Opposed, sttpei-ior. See Court ; Officer.
cient to justify his assuming a binding obligation." 2. Of less worth or importance; the less
He can do no legal act that will bind him, except significant : as, when it is said that terms of
enter into an apprenticeship, contract for necessaries
and teaching,' and, perhaps, enlist in the army or
a lower class cannot be extended by construc-
tion to include terms or members of a higher
navy.' He may deny or avoid any other contract class.
during his majority or after he comes of age. At
common law, also, a male under fourteen, and a Thus, the term "animals," meaning quadrupeds,
female under twelve, cannot make a will.* But an will not be held to include "birds." • See General;
infant may serve as agent. He sues by his guardian Superior.
or next friend, and he defends by his guardian, per- INFIDEL. One who does not recognize
haps by a special guardian ad litem.^" the inspiration or obligation of the Holy
Under the age of discretion he is not punishable
criminall.y.^i Scriptures, or the generally recognized feat-
If he understands the nature of an oath, he may ures of the Christian religion.^ See Atheist ;
Oath.
give evidence.'*
Infidelity. See Charity, p. 170, col. 3.
1 United States v. Block, 4 Saw. 81S (1877), Deady, J. ; INFINITE. See Distress.
Sylvester v. State, 71 Ala. 25 (1881). INFIRM. 1. Legally . insufficient ; lack-
' United States v. Wynn, 3 McCrary, 276 (1882), Treat,
Judge.
ing legal efficacy ; incomplete ; invalid. See
Faith, Good ; Negotiable.
•United States v. Yates, 6 F. E. 866 (1881), Benedict, J. ;
United States v. Petit, 11 id. 58 (1882); United States v. 3. As to physical and mental infirmity,
see Influence; Insanity.
Field, 16 id. 778 (1883); ib. 779-83, cases.
•3 Bl. Com. 370. See also 59 Pa. 116; 17Fla. 185; 1
Greenl. Ev. § 373; 1 Bish, Cr. L. § 972. 1 18 Cent. Law. J. 3-7 (1884), cases.
= 1 Bl. Com. 464.
6 L. m, not; faw, speaking: fari, to speak.
•Dexter v. HaU, 15 Wall. 21 (1872). » 3 Bl. Com. 141; L. E., 10 Eq. 630.
' 1 Bl. Com. 465. * Morford v. Peck, 46 Conn. 386 (1878), Loomis, J.
84 Binn. 487; 5 id. 423; 30 Vt. 357. 6 Gates 11. Hughes, 44 Wis. 336 ^1878).
•2 Bl. Com. 497; 1 id. 463. • Reiche v. Smythe, 13 Wall. 164(1871); United States
>» 1 Bl. Com 464.
V. Mattock, 2 Saw. 149-51 (1878). Y. 584
114B1. Com. 22. ' Gibson v. American Mut. Life Ins. Co., 37 N.
"See Commonwealth v. Lynes, 142 Mass. 570-80 (1868), Hunt, C. J.; Hale v. Everett, 53 N. H. 55 (1868);
(1833), cases. Omichund v. Barker, 1 Sm. L. C. 7S9-54, cases.
 INFLUENCE 543 INFORMATION

rNFLUETfCE. Most frequently used in be annulled must be such that the party making it has
no free will but stands in vinculis. " It must amount
connection with " undue," and refers to per- to force or coercion, destroying free agency." The
suasion, machination, or constraint of will ground upon which courts of equity grant relief is
presented or exerted to procure a disposition that one party by improper means has gamed an un-
of property — by gift, conveyance, or will. conscionable advantage over another. Each case must
The influence which is undue in cases of gifts inter be decided on its own merits.'
vivos differs from that which is required to set aside a Where a testator embraced spiritualism as practiced
will. In testamentary cases, undueinfluence is always by his beneficiary, .and became possessed by it, and
defined as coercion or frauds but, inter vivos, no such this belief was used by the beneficiary to alienate him
definition is applied. Where parties occupy positions from his only child, his will was set aside."
in which one is more or less dependent upon the other, See Ddkess'; Fraud; Insanity, 2 (6); Beading;
courts of equit.y hold that the weaker party must be SpiritcAlism.
protected, and they set aside bia gifts if he had not INFORMALITY. See Formality.
proper advice independently of the other.' INFORMATION.s Knowledge im-
Influence, to vitiate an act, must amount to force
and coercion destroying free agency; it must not be parted or obtained. See Belief ; Communi-
the influence of affection or attachment; not the mere cation.
desire of gratifying the wishes of another. There In a statute intended to prevent physicians from
must be proof that the act was obtained by coercion, disclosing "information" acquired from patients,
by importunity which could not be resisted; that it comprehends knowledge acquired in any way while
was done merely for the sake. of peace; so that the attending a patient, whether by the physician's own
motive was tantamount to force or fear.* insight, or by verbal statement from the patient, from
Undue influence is often defined by the courts to be members of his household, or from nurses or stran-
a " fraudulent and controlling influence." In any ap- gers, given to aid the physician in the performance of
plication, the phrase savors of what is meant by fraud. ^ his duty. Knowledge, however communicated, is in-
When a person, from infirmity and mental, weak- formation.*
ness, is likely to be easily influenced by others, a An answer to a decoy letter written in a fictitious
transaction entered into by him, without independent name, giving " information " of an article reputed to
advice, will be set aside, if there is any unfairness in it. prevent conception, was held not to be within the
Thus, where there is great weakness of mind in a meaning of a statute prohibiting the mailing of ob-
grantor, arising from age, sickness, or other cause, scene matter.*
though not amounting to absolute disqualification, and 3. A complaint preferred on behalf of the
the consideration is grossly Inadequate, a court of government in a civil cause.
equity, upon proper and seasonable application of the
person injured, his representatives or heirs, will set the
Bill of information. A bill in equity
conveyance aside. In such case, it is sufficient to show : filed by the attorney-general, or other proper
great mental weakness — not amounting to insanity officer, in behalf of the state or of those
or extreme imbecility; and, inadequacy of considera-
tion." ' Conley v. Nallor, 118 U. S. 127, 133, 134-35 (1880),
Influence obtained by modest persuasion and argu- cases. Woods, J.
ments addressed to the understanding or by mere See further, as to gifts or conveyances, Nichols v.
appeal to the affections, cannot be termed " undue; " McCarthy, 53 Conn. 814-21 (1885), cases; Woodbury ii.
but influence obtained by flattery, importunity, supe-
riority of will; mind, or character, or by what art Woodbury, 141 Mass. 331-38(18^0), cases; Dunn v. Dunn,
soever that human thought, ingenuity, or cunning may 42 N. J. E. 481 (1886); DaviS v. Dean', 66 Wis. 110-11
employ, which would give dominion over the will of (1886). cases; Bingham v. Fayerweather, 144 Mass. 51
(1887), cases; June u. Willis, 30 F. E. 11, 14 (1887), oases;
the testator to such an extent as to destroy free agency
or constrain him to do, against his will, what he is Hall V. Knappenberger, Sup. Ct. Mo. (1888): 26 Cent.
Law J. 317; ih. 319-22 (1888), cases; 3 McCrary, 050; 69
unable to refuse, is " undue." * Cal. 500; 12 Mo. Ap. 298, 314; 34 N. J. E. 570; 1 Story,
The undue influence for which a deed or will will
Eq. §§ 237-88; — as to wills, 22 Cent. Law J. 173 (1880),
■ . ' Haydook v. Haydock, 34 N. J. B. 575 (1681); Hugue- cases; 28 AJa. 107; 69 Ga. 89; 22 Kan. 79; 99 Mass. 112;
nin V. B£»seley, 2 L. C. Eq., 4 Am. ed,, 1271, 1198-1890, 58 Mich. 106; 63 N. Y. 504; 88 id. 857; 41 Pa. 817; 43 id.
cases. 46; 76 id. 114.
2 Goodwin v. Goodwin, 59 CaJ. 501 (1881): Jarm. Wills, '' Thompson v. Hawks, 14 F. R. 902 (1883), Gresham,
Perk. Notes, 41 ; Layman v. Conrey, 00 Md. 232 (1883). D. J. ; ib. 905, note. See Lyon v. Home, L. E., 6 Eq.
s Wessell v. Bathjohn, 89 N. C. 383 (1883). *655 (1868); Robinson v. Adams, 62 Me. 869 (1S74);
' AUore v. Jewell, 94 U. S. 511-12 (1876), Field, J. Ap- Smith's Will, 52 'Wis. 543,(1881); 86 Am. Law Reg. ^23-
proved, Griffith V, Godey, 113 id. 95(1885); Crebs v. 81 (1887), cases.
Jones, 79 Va. 382 (1884). See also Harding v. Wheaton, ^L. i'n-/o)-ma)'e, toputintoshape:/orma, form. See
8 Mas. 3S0 (1821), Story, J.; Harding v. Handy, 11 Informatus.
Wheat. 103, 119 (1886), Marshall, C. J. ■* Bdington v. Mut. Life Ins. Co., 5 Hun, 8 (1875): 2N.
Y. E. S. 406, § 78.
» Schofleld V. Walker, 58 Mich. 106 (1885), quoting pro-
bate court of Kent county. <• United States v. Whittier, 6 Dill. 42 (1878).
 INFORMATION 543 INFRA

whose rights are the objects of its protec- ernment, and ex officio. It is sometimes called a
" criminal " information.'
tion.! Prosecution by criminal information as at common
One method of redressing such injuries as the
law having been used for oppression, the statute of 4
crown may receive from the subject is by an informa- and B William & Mary (l(i9.3), c. 18, was passed, re-
tion filed in the excliequer by the king's attorney- quiring express leave of court to institute the pro-
general. This is a suit for recovering money or other
chattel, or for obtaining satisfaction in damages for ceeding.*
Under the laws of the United States, informations
any personal wrong committed in the lands or other
are resorted to in cases of illegal exportation of goods,'
possessions of the crown. It differs from an informa- of smuggling,* and for offenses, not infamous, against
tion filed in the court of king's bench, in that this is the elective franchise.* See further Infamy.
instituted to redress a private wrong by which the
property of the crown is affected; that is, is calculated Informer. He who prefei-s a charge
to punish some public wrong, or heinous misdemeanor. against another person by way of an infor-
It is grounded on no writ under seal, but merely on mation in a court exercising penal or crim-
the intimation of the king's officer, who " gives the inal jurisdiction.
court to understand and be informed of " the matter Common informer. A person who sues
in question; upon which the party is put to answer,
and trial is had, as in suits between subject and sub- for forfeitures created by penal statutes."
ject. The most usual informations are those of in- Whether the information he gives applies to cus-
trusion or trespass committed on the lands of the toms, internal revenue, criminal matters, or forfeit-
crown; and debt upon any contract for moneys due ures for any reason, an informer is one who gives the
to the king, or for forfeiture upon breach of a penal information which leads directly to the seizure and
statute. There is also an information in rem, when condemnation, regardless of the questions of evidence
any goods are supposed to become the property of the furnished, or interest taken in the prosecution.' See
Action, 2, Popular; Qui Tam; Moiety; Paruon.
crown, and no man appears to claim them.^
In the United States, the more familiar informations INFORMATTJS. L. Instructed; in-
are informations in the nature of a quo warranto, formed.
proceedings against persons alleged to be usui-piug a Non sum inform.atus. I am not in-
franchise or oflice ; and qui tarn informations — actions
formed. A judgment by default, when a
upon penal statutes, part of the penalty being for the
use of the plaintiff; and proceedings to recover for- defendant's attorney declares he has no in-
feitures imder the revenue laws. See further Qui Tam ; struction to say anything by way of answer
Warkaktdk; Revenue.
or defense. 8
3. A complaint lodged with a magistrate INTRA. L. Below, beneath, under;
clothed with power to commit to prison, that within ; during. Opposed, supra.
a person named is guilty of a criminal of-
fense.
Used alone, refers to a citation or other matter fur-
ther on, as in the text or at the foot of the particular
The purpose is to effect a summary conviction of page. Whence also ut infra, as (see) below.
the accused, or a holding to bail for indictment and Infra setatem. Under age.
trial. In the latter case, a paper, called the " infor- Infra annos nubiles. Within marriage-
mation," containing the details of the complamt, the
able years.
names of the witnesses, the hearing or hearings had,
the judgment, items of costs, etc., is transmitted to the Infra annum luctus. "Within the year
grand jury for use in finding their biU of indictment,
of mourning. See Anttos, Luctus.
and perhaps accompanies the indictment into court Infra corpus comitatus. Within the
before the trial jury.' body of the county. See County, Body of.
4. A criminal proceeding at the suit of the
Infra hospitium. Within the inn,— said
king, without a previous indictment or pre- of property in charge of an innkeeper.
sentment bya grand jury.< Infra sex annos. Within six years. See
An "indictment" is an accusation found by the Annus.
oath of a grand jury ; an " information " is the allega-
tion of a law-officer.' ■See 2 Story, Const. §1780; 3 id. §669; 1 Bish. Cr.
An information was filed in the king's bench at the Proc. § 141 ; Edwards v. Brown, 67 Mo. 379 (1878) ; State
mere discretion of the proper law-officer of the gov- V. Concord, 20 N. H. 296 (1850).
» See 4 Bl. Com. 311.
• 1 GaU. 3.
' [1 Bouvier's Law Diet. 245.
= 3B1. Com. 261; 4 id. 308. See also 3 Pick. 324; 6 < 1 Mass. 482, 500; 1 Wheat. 9; 9 id. 381.
» Act 31 May, 1870: R. S. 1 1023.
Leigh, 588; 15 Johns. *387. «3B1. Com. 161; 2 jd. 437.
» See Goddard v. State, 12 Conn. *451 (1838).
• [4 Bl. Com. 308. ' The City of Mexico, 32 F. R. 106 (1887), cases, Locke,
» United States «. Borger, 19 Blatch. 253 (1881); 4 Tex. Judge.
e [3 Bl. Com. 397.
 INFRINGEMENT 544 INHERIT

INFRINGEMENT.! Breaking, infrac- A grant of a right of " ingress, egress, and regress"
is of a right of way from the lociis a quo to the locus
tion, violation; a trespass, transgression, in- ad quern, and from the latter forth to any other spot
vasion.
to which the grantee may lawfully go, or back to the
Infringer. One who invades or violates locus a quo.^
another's right. INHABITANT.!! Implies a more fixed
Infringement, with its inflections is used of a viola-
tion of a law, regulation, contract, or common right; and permanent abode than "resident; " fre-
more often of the usurpation of an exclusive right. quently imports many privileges and duties
Thus ic has acquired a use almost technical in refer-
to which a mere resident could not lay claim
ence to the law of copyrights, patents, and trade- or be subject.'
marks; an infringement of any one of which consisting One domiciled : one who has his domicil or
in violating the exclusive right another person has se- fixed residence in a place, in opposition to a
cured to make, sell, or use the thing in question.
In determining the question of the infringement of a mere "sojourner."*
patent right, the court or jury, as the case maybe, are A person may be an inhabitant without being a citi-
not to judge about similarities or differences by the zen; and a citizen may not be an inhabitant, though
names of things, but are to look at the machines or he retains his citizenship.^
their several devices or elements in the light of v> hat A legal voter; as, in a statute requiring that a sub-
they do, or what office or function they perform, and scription inaidvof a railroad must be approved by the
how they perform it, and to find that one thing is sub- inhabitants of a town.*
In a figurative sense, a corporation may be said to
stantially the same as another, /if it performs substan-
tially the same function in substantially the same way inhabit the place where its members reside; andsince,
to obtain the same result, always bearing in mind that in a legal sense, it may be an occupier of land, any
devices in a patented machine are different in the such corporation in England has been called an inhab-
sense of the patent law when they perform different itant. But aji ordinary business corporation, keeping
an ofSce merely as a place for transacting busmess,
functions or in a different way, or produce a substan- cannot be said to inhabit the town where such office
tially different result.*
Where a defendant, who had been enjoined from
happens to be.'
Inhabitancy. A fixed and permanent
using an invention, asked that he might give bond so
that he could continue to use the invention and fill abode or dwelling-place for the time being,
contracts therefor, it was held that a bond would not
as contradistinguished from a mere tempo-
be adequate protection to the complainant's rights. rary locality of existence. Not the same as
The defendant also asked that the life of the injunc-
tion be limited to a day when,' it was alleged, the "domicil," when applied to successions to
patent would expire; but the court held that the time personalty.8 See Habitanct.
being in litigation the question could be disposed of on See Belong; Citizen; Domicil; Residence.
a motion to dissolve when that time arrived. It was INHERIT. To take property by descent
further decided that the court had no authority to re- as an heir.
strain the complainant from publishing the fact that As used by a testator, may refer to lands devised or
the Injunction had been issued.^
A right of action for the infringement of a patent conveyed by an ancestor."
survives to the personal representative of the patentee,
and he may transfer the right to another person. ' Somerset v. Great Western Ry. Co., 46 L. T. 884
There is no Federal statute of limitations in force
respecting infringements committed since June 22, 2 L. in~habiiare, to dwell in: hafyitwre, to have (one-
1874. State statutes of limitations have no applica- self) often: habere, to have.
tion.* * Supervisors of Tazewell Coimty v. Davenport, 40
See Copyright; Design, S; Patent, S; Propit, 2; HI. 306 (1866)? 19 Wend. 13.
Trade-mare. Compare Interference. * Bamet's Case, 1 Dall. *153 (178B) ; Borland v. Boston,
INGRESS. The right of entry upon land 132 Mass. 98-99 (1882). '
in a prescribed way. "Picquet v. Swan, B Mas. 46 (1828), Story, J.
" Egress " is the right of going off the premises to ' Walnut V. Wade, :^03 U. S. 694 (1880).
other points in any lawful way. "Regress" is the ' Hartford Fire Ins. Co. v. Hartford, 3 Conn. 25 (1819).
right of returning in any of these ways. See also 1 Dall. 480: 2 Pet. Adm. 4S0; 3 Ala. 547; 4 id.
630; 2 Conn. 20; 33 id. 47; 38 Ga. 121; 3 111. 403; 6 Ind.
^ L. in-fringere, to break into, in upon. 88; 87 Me. 369; 3 Gray, 484; 133 Mass. 98-99; 45 N. H.
2 Union Paper-Bag Machine Co. v. Murphy, 97 U. S. 87; 23 N. J. L. 537; 36 id. 368; 8 Wend. 141; 10 id. 186;
123 (1877), Clifford, J. Approved, Cantrell v. Wallick, 4 Barb. 521 ; 48 id. 51 ; 1 Bradf . 83; Cooley, Const. Lim.
117 id. 695 (1886), Woods, J. 7B5.
' Westinghouse Air Brake Co. v. Carpenter, 32 P. R. 229.sjSe Wrlgley, 8 Wend. 140 (1831); 133 Mass. 98; 9 F. E.
B45 (1887), Shiras, J.
* May V. County of Logan, 30 P. R. 250 (1887), oases, »De Kay v. Irving, B Denio, 646, 654 (1846); 113 U. S.
Jackson, J.
. INHIBITION 545 INJUNCTION

May refer to a distributive share of the proceeds of chancery, to restrain the commission of a
arising from the sale of land.' threatened act, or the continuance of an act.
Disinherit. To direct by wiU that an
A judicial process operating in personam,
heir shall receive no part of the testator's and requiring the person to whom it is di-
estate. See Inofficious.
rected to do or to refrain from doing some
Heritable. Capable of taking, or of pass-
ing, by descent. particular thing.l
Unjoin. To prohibit by an injunotion.2
Inheritance. An estate which descends,
Preliminary injunction. An injunc-
or may descend, to the heir upon the death tion granted at the outset of a suit brought
of the ancestor ; ^ also, the fact of receiving to restrain the doing of a threatened act,
an estate as heir.
until the rights of the disputants have been
Estates of freehold are estates of inheritance, ab-
solute or limited; and estates not of inheritance, or determined. ' Called also an interlocutory or
for life only." provisional injunction, or an injunction
In its popular acceptation, " inheritance " includes pendente lite; and, also, a mandatory or pre-
all the methods by -which a child or relative takes ventive injunction, according as the order is
property from another at his death, except by devise, to do or refrain from doing the particular
and includes as well succession as descent. As appKed
act. Opposed, final injunction: issued
to personalty, signifies succession.*
An estate acquired by inheritance is one that has upon final adjudication of the rights in ques-
descended to the heir, and been cast upon him by the tion. Being designed to effect permanent
single operation of law.^ relief, is frequently termed the perpetual
Shifting inheritance. An inheritance liable injunction.
to be defeated by the birth of a nearer heir. The object of a preliminary or interlocutory injunc-
Does not prevail in the United States, where change tion is, in general, simply preventive — to maintain
of title from the living person is made by deed, rather things in the condition they are in at the time, until
than by the statute of descent, as in England where the rights and equities of the parties can be consid-
the canons of descent are designed to accumulate ered and determined after a full examination. Such
property in the hands of a few. By the rule of shift- injunction is never awarded, except when the right or
ing inheritances, " If an estate is given to an only equity of the plaintiff is clear, at least supposing the
child, who dies, it may descend to an aunt, who may facts of which he gives prima facie evidence to be
be stripped of it by an after-born vmcle, on whom a ultimately established. All injunctions are generally
subsequent sister of the deceased may enter, and who processes of mere restraint; yet final mjunctions may
again will be deprived of the estate by the birth of a certainly go beyond this and command acts to be done
brother." ' or undone. They are then called " mandatory; " and
See Descent; Freehold; Heib, 1; Sdocession, 1; often are necessary to do complete justice. But the
Waste, 1. authorities are clear that an interlocutory or prelim-
rNHIBITION.' Forbidding; interdic- inary Injunction cannot be mandatory. . . Injunc-
tion as a measure of mere temporary restraint is a
tion; prohibition.
A-wi-it to forbid a judge from proceeding mighty power to be wielded by one man. .. An in-
terlocutory injunction may be granted on an ex parte
in a cause, or an individual from doing some application; when it is upon notice it is upon ex parte
act. Nearly the same as "prohibition" affidavits.'
As a preliminary injunction is in its operation
(g. V.) at common law, and "injunction" in somewhat like judgment and execution before trial,
equity.s it is only to be resorted to from a, pressing necessity
INITIAIjS. See Idem, Sonans ; Name, 1.
to avoid injurious consequences which cannot be re-
Uf JXnfCTIOIf.' A remedial writ, for- paired imder any standard of compensation,*
merly issued almost exclusively by a court As it is, in fact, the result of an interlocutory de-
cree in advance of a regular hearing and plenary
proofs, it should never be granted except where irrep-
> Eidgeway v. Underwood, 67 Bl. 426 (1873). arable mjuryis threatened; and the court should be
' [2 Bl. Com. 201.
» 2 Bl. Com. 104, 120.
* Homer v. Webster, 33 N. J. L. 413 (1867). ' High, Injunctions, § 1.
» Estate of Donahue, 36 Cal. 332 (1868). a See 31 Alb. Law J. 181, 220, 240, 279 (1885).
« 2 Christ. Bl. Com. 208 n; Bates v. Brown, 5 Wall. ' Audenried v. Philadelphia & Beading R. Co., 68 Pa.
713-19 (1866), cases. 375-78 (1871), cases, Sharswood, J. See generally 18
' L. in-hibere, not to have: to keep in, hold in, check. Cent. Law J. 323-26, 343-46 (1884), cases.
8 See Termes de la Ley; Wharton's Law Diet.; 6 Q. * Mammoth Vein Coal Co.'s Appeal, 54 Pa. 188 0867),
B. D. 420.
Thompson, J. See also Ballantine v. Harrison, 37
" L. injunctio: injungere, to bid, command. N. J. E. 561 (1883); Stanford v. Lyon, ib. 113 (1883).
(35)
 INJUNCTION 546 INJURY

satisfied that in attempting to prevent such injury as INTUBIA. L. Wrong ; injury. A tor-
to one party it will not bring like injury upon the tious act, whether willful and malicious, or.
adverse party.'
An injunction is generally «■ preventive, not an accidental.! Compare Delictum.
afBrmative, remedy. But it is sometimes used in the Ab assuetis non fit injuria. From mat-
latter character to cany into effect a court's own de- ters of long standing no injury krises.
cree; as, to put into possession the purchaser under a Acquiescence with a state of things as it has long
decree of foreclosure of a mortgage.^ Where granted existed, operates as a waiver or abandonment of one'$
wittout a trial at law, it is upon the principle of pre- right therein. See Estoppel.
serving the property until a trial at law can be had. Damntun absque injuria. Loss with-
A strong privia facie case of right must be shown,
out such injury as the law recognizes. See
and there must have been no improper delay. In
further Damnum.
granting or refusing the writ, the court exercises a
careful discrimination. ^ De injuria. Of (his own) wrong. See
' A coin-t of equity may substitute a bond of indem- Replication.
nity for an injunction, if the ends of justice will Volenti non fit injuria. To him who
thereby be promoted: especially if a public interest
wills a thing there can be no injury. See
may suffer by the continuance of an injunction.*
An injunction is available to stay proceedings at
further VoLO, "Volenti.
law; to restrain the transfer of stocks, notes, bills, and INJURY. A privation of legal right ; a
other evidences of debt; to restrain the transfer of wrong ; a tort. See Injltiia. _
the possession or title to property; to restrain one
A wrong done to a person ; a violation of
from setting up an inequitable defense at law; to re-
strain the infringement of a patent, a copyright, a his right.2
trade-mark; to prevent the removal of property or the "Injury " is the wrongful act or tort which causes
evidence of title to property or of indebtedness out of harm or injury to another. " Damages " are allowed
the jurisdiction; to restrain the commencement of as an indemnity to the person who suffers loss or harm
proceedings in a foreign court; to restrain an illegal from injury. "Injury "denotes the illegal act; "dam-
act by municipal officers; to prevent the creation or ages," the sum recoverable as amends for the wrong.*
the continuance of a niiisance; to restrain acts of Civil injury. A private wrong ; an in-
waste. fringement or privation of the private or
A court of equity has no power to enjoin the prose- civil rights belonging to an individual con-
cution of an offense in a court of common law.* sidered as an individual.
But there must be no plain, adequate, and complete
remedy at law. The writ will not be granted at all It affects an absolute or relative right, and i^ com-
mitted with force and violence, as in battery and false
while the rights between the parties are undetermined,
except, as seen, where iiTeparable injury will be done. imprisonment; or without force, as in slander and
breach of contract. Public injuries are public wrongs
The petition or bill must sufflcientiy appraise the re-
or crimes,* q.v,
spondent as to what duty is required of him.^
An injunction must be respected while in force, al- Eesults from non-feasance, misfeasance, or mal-
feasance; and affects the person, personalty, or realty.
though improperly granted; but it cannot affect the See Take, 8.
rights of a person who is not a party or privy to the
"^
Irreparable injury. Injury of such nat-
proceeding.
In England, a common injimction has been issued ure that the party wronged cannot be ade-
as of course when the defendant failed to enter his ap- quately compensated in damages, or when
pearance or to answer the bill within the prescribed
the damages which may result cannot be
time ; and a, special injunction, by leave of court, upoh
proof of the charges and notice to the adverse par- measured by any certain pecuniary stand-
ties. At present, it seems, that any court of that
country may issue injunctions of all kinds. ^ All that is meant is, that the injury would be a
See Ade<juatk,'2; Equitt; Injdet, Irreparable. ard. 5 one, or at least a material one, and not ade-
grievous
quately reparable in damages. The term does not
> Wagner D. Drake, 31 F. K. 853 (1887); High, Inj. mean that there must be no physical possibility of re-
§§ 7-10, cases. •
" Walfcley v. City of Muscatine, 6 Wall. 483 (1867). pairing the injury."
s Parker v. Winnipiseogee, &c. Co., 2 Black, 532 > Wright V. Chicago, &c. E. Co., 7 Bradw. 446 (1880).
» Parker v. Griswold, 17 Conn. *302 (1845).
t Northern Pacifle E. Co. v. St. Paul, &o. Co., 4 F. E. = North Vernon v. Voegler, 103 Ind. 319 (1885), El-
688 (1880). liot , J. ; 25 Am. Law Eeg. 101, 113-rl5 (1886), cases.
'Suess V. Noble, 81 F. E. 855 (1887); Re Sawyer, 184 4 3 BI. Com. 2, 118.
U. S. 310 (1888), cases. , • [Wilson t). Mineral Point, 39 Wis. 164 (1S75): High,
» See E. S. §§ 718-80; 1 Hughes, 607; 3 F. E. 607; 4 Injuno. § 460.
Dill. 600; 2 Woods, 681. • Sanderlin v. Baxter, 76 Va. 306 (1882): Kerr, Injimo.
' Eoberts v. Davidson, 83 Ky. 283 (1885). 199; Moore v. Steelman, 80 Va. 340 (1885), cases; Wahl&
» 1 Story, Eq. § 893. V. Eeinbach,76 111. 336 (1875).
 INN
INJUSTICE 547

The word " irreparable " Is unhappily chosen to ex- seasons, who properly apply and behave with
press the rule that an injunction may issue to prevent
decency, and this as guests for a brief period,
wrongs of a repeated and continuing character, or
which occasion damages estimable only by conjecture not as lodgers or boarders, by contract, for
and not by any accurate standard.' the season. 1
In the sense in which used in conferring jurisdiction Synonymous with "tavern" and "hotel;" not
upon courts of equity, does not necessarily mean that with "boarding-house," "restaurant," or "lodging-
the injury complained of is incapable of being meas-
ured by a pecuniary standard.^ Innkeeper. A person who makes it his
Literally, anything is irreparable injury which can- house." ^
business to entertain travelers and passen-
not be restored in specie. In law nothing is irreparable
which can be fully compensated in damages. To en- gers, and provide lodging and necessaries for
title a party to an injunction, he must show that the them, their horses and attendants.'
injury <;omplained of is irreparable because the law He is a guest at an inn or hotel who is away from
affords no adequate remedy.^ home and receives accommodations at the house as a
Injuriously affect. See Take, 8. traveler. See further Quest.
See further Admission, 2; Cask, S; Cause, 1; CoN- An innkeeper's liability for a loss to his guest is the
TiNnODS, S; CoNT^NUANDo; Declaration, 1; Inspec- same in character and extent as the liability of a
tion, 2,Of person. Compare Dauaoe; Eedress; Re- common carrier. In the absence of proof that the
lief; Tort; Wrong. loss was occasioned by the hand or through the negli-
nfJUSTICE. See Justice, 1. gence of the hotel keeper, or by a clerk or servant em-
HfK. See Writing. ployed by him, the guest cannot recover the amount
of the loss from the keeper.*
HfLAND. See Commerce; Exchange, His responsibility approximates to insurance when
Bill of ; Navigation. an article (a valise) is entrusted by a guest to his keep-
In the act of July 2, 1864, § 7, that no procerty seized
upon "any of the inland waters of the United States," An innkeeper impliedly engages to entertain all
by the naval forces, shall be regarded as maritime persons who apply; and an action on the case will lie
prize, " inland " applies to all waters upon which a against him for damages, if, without good reason, he
ing.'
naval force could go, other than bays and harbors on refuses to admit a traveler. To frustrate, in that way,
the sea-coast.* the end of the institution, was held to be disorderly
nrNT. A house where the traveler is fur- behavior. Indeed, for an unreasonable refusal to re-
ceive travelers, the proprietor could even be indicted
nished with everything which he hath occa-
sion for whilst upon his way.' and his inn suppressed.^
The common-law liability of an innkeeper has been
A public house of entertainment for all generally changed by statute. He is not now liable
who choose to visit it.* for money, jewelry, or other valuables, lost or stolen,
A house kept open publicly for the lodging if he provides a safe for their keeping and duly noti-
and entertainment of travelers in general, fies guests thereof. Nor should he be held liable for
goods stolen from a room furnished for the display of
for a reasonable compensation.'
The leading ideas of all the definitions are, samples
He is ofnotmerchandise.^
liable as an innkeeper for the loss of
that an inn is a house for the entertainment
1 Bonner v. Welborn, 7 Ga. 307 (1849).
of travelers and wayfarers, at all times and
» People V. Jones, 54 Barb. 316-17 (1863), cases; Pink-
■ Commonwealth v. Pittsburgh, &c. B. Co., 24 Pa. erton V. Woodward, 33 Cal. 596 (1867), cases.
160 (1854), cases. ' Bacon, Abr., Inn. B. ; Carter u Hobbs, 12 Mich. 56
" Wilmarth v. Woodcock, 68 Mich. 485 (1885), Champ- (1863); Howth v. Franklin, 20 Tex. 801 (1858).
lin, J. < Elcox V. Hill, 98 U. S. 224 (1878), cases; 66 Ga. 206;
» Brace Brothers v. Evans et al., C. P. No. 1, Alle- 1 Bl. Com. 430; 2 Kent, 892; Story, Bailm. § 470.
gheny Co., Pa. (April 21, 1888), Slagle, J.: 35 Pitts. » Murray v. Marshall, 9 Col. 482 (1886), cases.
Leg. J. 406, cEises. A boycotting case. "The business •3B1. Com. 166; 4 id. 16T.
lost, and which will be destroyed by defendants' acts, ' Fisher i;,Kelsey, 121 U. S. 383, 385-86 (1887), cases.
cannot be restored. If permitted, plaintiffs may build The plaintiff, a traveling salesman, engaged a room
up a new business, but the old one cannot be replaced. in the Planters' House, city of St. Louis, for the exhi-
It is gone irreparably." See also Breusohke v. The bition of articles of jewelry. During his occupancy
Furniture Makers' Union, Sup. Ct. Cook Co., 111. (188-); of the room, articles valued at $12,600 were stolen,
Western Union Tel. Co. v. Rogers, 42 N. J. E. 314 (1886); without neglect in him or in the proprietor of the
Emack v. Kane, 3 Ry. Corp. Law J. Sir (1888). hotel. Held, that the relation of innkeeper and guest
• Porter v. United States, 106 U. S. 612 (1882). did not exist as to the use made of the sample room;
• Thompson v. Lacy, 3 B. & A. 285 (1820), Bayley, J. also, that knowledge in the proprietor that the articles
• Wintermute v. Clarke, 5 Sandf. 247 (1851), Oakley, were brought into his hotel to be exhibited for sale,
C. J.; Walling u. Potter, 35 Conn. 185 (1868); 36 Barb. did not relieve the owner from serving written notice
462.
upon the proprietor, as required byin statute in Mis-
'2 Kent, 595. souri that he had such merchandise his possession.
 INNER 648 INOPS COSILII

money deposited with Mm for saJe-keeping by a per- tion or probative evidence is not applicable in civil
son not a guest.' cases or in revenue seizures — where the issue depends
The owner of a steamship is not an innkeeper.' upon the evidence, but the defendant is. not put to his
See Board, 1; Hotel; Lien, Common-law; Lodger; defense until a prima facie ease is made out by the
Beside; Eestaukant; Eight, 2, Civil Rights Acts;
Tavern. Innocence is always presumed, except as against
plaintiff.!
Inns of court. Originally, town-houses the publisher of a libel."
See Doubt, Reasonable; Intent; Libel, 5.
in which the nobility and gentry resided
INNUENDO. L. With the meaning;
when in attendance at court; later, schools
for the study of law. thereby meaning. A clause in a pleading
The name was given to law societies which occu- explanatory of a preceding word or aver-
ment.
pied certain " Inns," as Lincoln's Inn, Gray's Inn.
The buildings were originally private residences, or The same in effect as " that is to say." While used
hospUia — town-houses. They retained, in their new almost exclusively in actions for defamation, it may
use, their former names; in them lectures were read, be inserted in declarations in other actions, to explain
and degrees conferred in the common law.^ See the meaning of a written instrument. ■
Bencher. In a declaration for slander or libel, explains the
INNER. See Barrister. words uttered; annexes to them their proper meaning.*
INNOCENCE. Being free from the It cannot enlarge or extend the sense of expressions
beyond their usual, natural import, unless something
guilt of crime, fraud, or negligence.
is put upon the record by way of introductory matter
Innocent. Not chargeable with fault, with which they can be connected. Then, words which
fraud, or wrong: as; an innocent purchaser are equivocal or ambiguous, or fall short in their nat-
or holder. ural sense of importing any defamatory charge, may
1. Where one of two innocent parties must suffer have fixed to them a meaning certain and defamatory,
through the fraud or wrong -of a third party, the loss extending beyond their ordinary import.'*
falls upon him who gave the credit; as, where one If the words impute an infamous crime punishable
signs his name to blank paper which is afterward by law, an inmtendo, undertaking to state the same
fraudulently made a promissory note.* in other words, is superfluous; if they do not, an in-
If one of two innocent parties must suffer for a nuendo cannot aid the averment^ as it is a clear rule
deceit, it is more consonant to reason that he who of law that an innuendo cannot introduce a meaning
broader than that the words naturally bear, unless
" puts the trust and confidence in the deceiver (agent,
cashier, etc.) should be the loser, rather than the connected with proper introductory averments.*
See Colloquium; Libel, 5; Slander.
stranger."" ,
The loss should fall on him who by reasonable dili- INOFFICIOUS. An inofficious will is
gence could have protected himself.^ one in which natural affection and the claims
He who gave the power to do the wrong must bear
the burden of the consequences.^
of near relationship have been disregarded.^
The civil law defines an inoliflcious or undutif ul will
In the negotiation of commercial paper, a holder is
not innocent where there is any circumstance to excite to be such as substantially departs from the disposition
of the estate which would be made in case of intestacy.
the suspicion of a man of ordinary caution as to a de-
In America, authority to make a will implies the
fect or irregularity in the paper, or a want of power
power to discriminate between, or to disinherit, next
in any party thereto.^ See Faith, Good; Enowl-
EDGE, 1. of kin; and the fact of such discrimiifation raises no
2. In the law of criminal procedure, innocence is presumption of undue influence.'
See Testamentum, Inofficiosum.
presumed until the contrary is proven. That is, a rea-
sonable doubt of guilt is a ground of acquittal, where, INOPERATIVE. See Operative, 3.
if the probative force of the presumption were ex- INOPS CONSILII. L. Without legal
cluded, there might be a conviction. This presump-
counsel.
Devises by will are more favored in construction
» Arcade Hotel Co. v. Wiatt, 44 Ohio St. 45-46 (1886).
than formal deeds, which are presumed to be made
As to lien, see 31 Am. Law Eev. 079-95 (18S7), cases.
» Clark V. Burns, 118 Mass. 377 (1875), cases. See, in 1 Lilienthal's Tobacco v. United States, 97 U. S. 267
general, 25 Am. Law Reg. 904-6 (1886), cases; 1 Sm. Ld. (1877); 15 Gray, 416; 2 Whart. Ev. § 1245.
Cas. 401-6, cases. 2 1 Greenl. Ev. § 36; 1 Cr. Law Mag. 1; 4 id. 643, 845.
» See 1 Bl. Com. S3-25; 3 id. 39. » See Whitsett v. Womaok, 8 Ala. 483 (1845).
, * Bank of Pittsburgh v.' Neal, 23 How. Ill (1859), * Beardsley v. Tappan, 1 Blatch. 591 (1860), cases.
cases. Nelson, J. ; Young v. Cook, 144 Mass. 41-42(1887), cases.
» Carpenter v. Longan 16 Wall. 373 (1872). » Pollard V. Lyon, 91 U. S. 283 (1875), cases, Clifford, J.
• Nat. Savings Bank v. Creswell, 100 U. S. 643 (1879). See also 8 Biss. 268; 29 Kan. 618; 50 Mich. 640; 5 Johns.
'People's Bank v. Manufacturers' Nat. Bank, 101 *438; 63 Pa. 418; 59 id. 488; 114 id. 558.
' » Banks v. Goodfellow, 39 L. J. E., Q. B. 248, 344
U. S. 183 (1879).
6 Merchants' Bank v. State Bank, 10 Wall. 604, 646 (1870), Cockburn, C. J.
(1870); 34 La. An. 180; 34 N. Y. 30. ' Stein V. Wilzinski, 4 Eedf. 450 (1880).
 549 INSANITY
^\ INQUEST

with great caution, forethouglit, and advice. In this INQUISITION. See Inquest; Inquiry.
principle originated executory devises.' INSANITY.! Disorder of mind from
INQUEST. An inquiry by a jury, duly disease or defect in the brain ; disease of the
impaneled by the proper officer, into any mind.
cause, civil or criminal ; also, such jury itself.
1. In pathology. A condition in which the
Compare Inquikt, 2, 3. intellectual faculties, or the moral senti-
Coroner's inquest. An inquiry by ments, or the animal propensities, — any one
coroner, assisted by a jury, into the mannera
or all of them,— have their free action de-
of death of one who has been killed, or died
suddenly or in prison. See Coroner. stroyed by disease, whether congenital or
acquired. . . A disease of the brain, af-
Grand inquest. The grand jury, q. v. fecting one or more of the mental faculties —
Inquest of lands; sheriffs inqviisition. In
Pennsylvania, after a sherifiE has levied upon a debtor's intellectual or emotional. ^
realty, he summons a jury of at least six men who A manifestation of disease of the brain,
ascertain whether the rents and profits of the estate, characterized by a general or partial derange-
beyond aU reprises, will be sufficient, within seven ment of one or more faculties of the mind,
years, to satisfy the judgment and costs of suit. The
and in which, while consciousness is not
right to the proceeding is frequently waived.'
Inquest of ofllee. A method of redress- abolished, mental freedom is perverted,
weakened, or destroyed.'
• ing an injury which the crown (state) receives By " disease " is here meant structural change due
from a subject.
to injury, malformation, malnutrition, non-develop-
An inquiry made by a sheriff, coroner, escheator,
ment, or other cause.'
or commissioners specially appointed, concerning any Insanity is due: I. To defective development of fac-
matter that entitles the king to the possession of lands
ulties; called idiocy or ivibecility, resulting from con-
or tenements, goods or chattels; as, reversions accru- genital defect, or from an obstacle to development,
ing to the crown, escheats, forfeitures, whether one is supervening in infancy. II. To lesion of faculties sub-
a lunatic and what property he has, the fact of a sequent to development; called mania, intellectual
wreck, of treasure-trove, etc. Also known as " oflBce or affective, and either general or partial, or demen-
found,"' q. v. tia, consecutive to mania, o^ to injury to the brain, or
nfQUIEY. A seeking: search, investi-
else senile. *
gation. Compare Inquest. Most of the definitions, so called, are merely
1. When there are facts sufficient to put a sententious descriptions of the disease. It is
man of ordinary caution upon inquiry, the impossible to frame a perfectly consistent
means of knowing and knowledge itself are, definition. No words can comprise the differ-
in legal effect, the same thing. See further ent forms and characters the malady may as-
Knowledge, 1 ; Notice, 1. sume. The more common forms are mania,
2. In the oath of grand jurors " diligently monomania, and dementia; each of which
inquire" means diligently inquire into the implies a derangement of the faculties of the
circumstances of the charges, the credibility mind from their normal or natural condition.
of the witnesses, and, from the whole, judge Idiocy (q. v.) is more properly the absence of
whether the accused ought to be put upon mind than derangement of its faculties; it is
trial.* congenital, and consists not in the loss or de-
3. A writ by which the sheriff is directed rangement ofthe powers, but in the destitu-
to summon a jury to ascertain the damages tion of powers never possessed. Mania is
due from a defendant against whom there derangement accompanied with more or less
has been an interlocutory judgment, entered excitement, amounting, in cases, to a fury.
either by default or by confession, the amount The individual is subject to hallucinations
not being ascertainable by mere calcula- and illusions ; is impressed with the reality
tion.'
' L. insaniias, unsoundness of mind: in, not; sanus,
13 Bl. Com. 381, 172, H5, 108. healthy, whole, sound.
2 See 1 Bright. T. & H. Pr. §§ 1222-36. " Tuke (Bucknill & T.), Insanity, ed. 1858, p. 88.
>3 Bl. Com. 258; 2 Kent, 10, 33. 'Hammond, Treatise on Insanity, 265 (1881). See
* Eespublica v. Shaffer, 1 Ball. *237 (1788). 338.
also Ray, Med. Jurisp. of Ins. § 54; Elwell, Malpr. &c.
» See 3B1. Com. 398; Hanley u. Sutherland, 74 Me. 213
(1882), cases; McHenry v. Union Passenger Ey. Co., 14 «Eay, Med. Jurisp. of Ins. (1871), § 56. See further
W. N. C. 404 (Pa., 1884). 25 Cent. Law J. 195-218 (1887), cases.
 INSANITY 550 INSANITY

Consists in a morbid perversion of the feelings,

of events which have never occun-ed, and of
affections or active powers, without any illusion or
things which do not exist ; and acts more or
erroneous conviction impressed upon the understand-
less in conformity with these particulars.
The mania may be general, and afiect all or 3. In medical jurisprudence. The law,
moat of the operations of the mind ; or par- being neither a medical nor a metaphysical
ing.'
tial, and be confined to particular subjects — science, has no theory on the subject of dis-
which last constitutes monomania. An ab- eases of the brain. It seeks practical rules
sence of reason on one matter, indeed on
which may be administered, without inhu-
many matters, may exist, and at the same manity, for the security of society, by pro-
time the patient exhibit a high degree of in- tecting itfrom crime. It holds every man
telligence and wisdom on other mattersj The
cases show a want of entire soundness of responsible who is a free agent. ' ' Insanity "
is really not a legal term.
mind or partial insanity. This form does not Questions involving sanity arise in determining
necessarily unfit the patient for transacting what degree of unsoundness will make void a mar-
business on all subjects. Dementia is de- riage, disqualify for the duties of an office or trust,
render incompetent or discredit as a witness, advise
rangement accompanied with general en- commitment to an asylum, or negative consent in the
feeblement of the faculties. It is character- commission of certain crimes. On these and kindred
ized by forgetfulness, inability to follow any
subjects, no imifoi"m test has been established: each
train of thought, and indifference to passing case is to be decided from a consideration, of its own
events. There is not usually equal weakness circumstances. 2
In the Revised Statutes and in any act or resolution
exhibited on all subjects, nor in all the facul- of Congress passed subsequently to February 1, 1871,
ties. Matters which, previously to the exist- the words "insane person" and "lunatic" include
ence of the malady, the patient frequently every idiot, non compos, lunatic,-and insane person.*
thought of, are generally retained with In particular, questions as to legal capacity arise in
greater clearness than less familiar subjects. connection with tlie receiving of testimony, with the
One faculty, as, the memory, will be greatly right to exercise the elective franchise; in proceed-
ings to place a person or his property in charge of a
impaired, while other faculties retain some committee or trustee; in discussions as to the validity
portion of their original vigor. The disease of contracts, and deeds ; upon contests as to the vahd-
is of all degrees, from slight weakness to ab- ity of wills; and with regard to punishment for crime.
solute loss of reason. These three forms of (1) As to giving testimony. A person affected with
insanity is admissible as a witness, if it appears to the
insanity, — mania, monomania, dementia, — court, upon examining him and competent witnesses,
present themselves in an infinite variety of that he has sufficient understanding to apprehend the
ways, seldom exhibiting themselves in any obligation of an oath, and to be capable of giving a
correct account of the matters he has seen or heard in
two cases exactly in the same manner.l
Emotional insanity. The condition of reference to the questions at issue.*
(2) As to exercising the elective franchise. A per-
one, in possession of his ordinary reasoning son who is capable of doing ordinary work, and trans-
faculties, whose passions convert him into a acting business, who knows what money is and its
maniac, and, while in this condition, he com- value, makes his own contracts and does his own trad-
mits an act in question. ing, or a person vacillating and easily persuaded, or
a person who has been laboring under some kind of
Impulsive insanity. Exists when one illusion or hallucination, but not so as to incapacitate
is irresistibly impelled to the commission of him for the general management of business, which
an act.2 Illusion or hallucination is not shown to extend to po-
To be distinguished from the case where, being in litical matters, cannot be denied the privilege of the
possession of his reasoning faculties, the person is im- elective franchise on the ground of a want of mental
pelled by passion merely." See Impulse. capacity.
Moral insanity. Describes a mind which, (3) As to6 proceedings de lunatico. The inquiry is as
while undisturbed by hallucination or illu- iJorman's Will, 54 Barb. 291 (1869); Prichard, Ins.
sion, and qualified to judge between right and 16,19,30. See Taylor v. Commonwealth, 109 Pa. 270
wrong, is yet powerless to control conduct (1885). Moral mania, 3 Law Quar. Rev. 339 (If 8").
according to knowledge ; as, in kleptomania. 2 People u.'Finley, 38 Mich. 483 (1878); United States
V. =McGue,
R. S. § 1.8 Curtis, 13 (1851).

' Hall V. Unger, 3 Abb. U. S. 510-15 (1867), Field, J., ■> District of Columbia v. Armes, 107 TT. S. 621 (1882),
Cir. Ct., 9th Cir., Dist. Cal. Field, J. ; Regina v. Hill, 5 Cox, Cr. 0. 266 (1850).
2 Mut. Life Ins. Co. v. Terry, 15 Wall. 590 (1872). ' Clark V. Robinson, 88 111. 499, 502 (1878), Sheldon, J.
 INSANITY 551 INSANITY

to the individual's fitness to manage his own affairs, The mere fact that a testator is subject to insane
and to conduct himself with safety to himself and delusions is no sufficient reason why he should be held
others. See further Lunacy. to have lost his right to make a will, if the jury are
(4) As to contracts and deeds. The inquiry is, what satisfied that the delusions have not affected the gen-
degree of mental capacity is essential to the proper eral faculties of his mind and cannot have influenced
execution of the act; and was that capacity possessed him in any particular disposition of his property.'
at the time of the execution. Different degrees are Want of the requisite soundness is incapable of
requisite for contracts of a complicated character, definition suited to all cases. Each case is largely to
and for a single transaction of a simple nature. be tested by its own facts. ^
The law presumes every adult sane, his will stand- The best considered cases put the question upon the
ing as the reason for his conduct. Whoever denies his basis of knowing and comprehending the nature of
sanity must establish the position. Testimony as to the transaction.^
previous or subsequent insanity will not answer, imless Old age, failure of memory, eccentricity, ignorance,
the insanity be shown to be habitual, that is, continu- credulity, vacillation of purpose, irritability, passion,
ous and chronic. Habitual insanity, once shown, is prejudice, meanness, and even degrees of idiocy, may
presumed to continue.^ all exist along with adequate capacity.*
The burden of proof is upon him who alleges inca- When the due execution of a paper, rational in its
pacity, unless it is shown that he %vas insane prior to provisions and consistent in its details, language, and
the date of the contract; then the burden shifts, and structure, has been proven, the propounder has made
the person claiming under the contract must show out a prima facie case. The burden of showing that
that it was executed during a lucid interval. Partial the testator was not of disposing mind then shifts to
insanity, in the absence of fraud or imposition, will to the contestant.* See further Influence.
not avoid a contract, unless it exists with reference to (6) As to responsibility for crime. The decisions
the subject of it at the time of its execution; but in show " a steady amelioration, in the light of advanc-
cases of fraud it may be considered in determining ing medical knowledge." They have regard to the
whether a party has been imposed upon.^ possession of the faculty of understanding right from
In a pohcy of insurance, " sane or insane " refers to wrong. But some, in addition, regard the power of
intended self-destruction, whether the insured was of choosing between acts.
sound mind or in a state of insanity. To avoid the All well considered cases, since 1843, in both Eng-
policy, the insured must have been conscious of the land and America, are founded upon the doctrine laid
physical nature of his act, and intended by it to cause down by the fourteen judges in M ^Naghten's Case^^
his death, although at the time he was incapable of that " the jurors ought to be told in all cases that every
judging between right and wrong, and of understand- man is presumed to be sane, and to possess a sufficient
ing the moral consequences of what he was doing.^ degree of reason to be responsible for his crimes,
See further Suicide. until the contrary be proved to their satisfaction; and
(5) As to testamentary capacity. A testator must that, to establish a defense on the ground of insanity,
have a sound and disposing mind and memory: he it must be clearly proved that, at the time of the com-
ought to be capable of making his will with an un- mitment of the act, the party accused was laboring
derstanding ofthe nature of the business in which he imder such a defect of reason, from disease of the
is engaged, a recollection of the property he means to mind, as not to know the nature and quality of the
dispose of, of the persons who are the objects of his act he was doing ; or, if he did not know it, that he did
bounty, and the manner in which it is to be distributed not know he was doing what was wrong."
between them. It Is sufficient if he has such a mind That rule, however, is not universal. In some
and memory as will enable him to understand the ele- States the question is left to the jury, in a general
ments of which the matter is composed — the disposi- way, whether insanity caused the act; in others,
tion of his property in its simple forms. Bodily health knowledge of right and wrong is the test; and in
may be in a state of extreme infirmity, and he yet others, to that test is coupled an inquiry as to the
have sufficient understanding to direct how his prop- power to control action.
erty shall be disposed of. His capacity may be per-
fect to dispose of his property by will, and yet be ton, J. Approved, 1 Eedf. Wills, 30; 29 Pa. 302,— in
inadequate to the transaction of other business, as, many cases.
1 Banks v. Goodfellow, 39 L. J. E., Q. B. 237, 248
the making of a contract. . He expresses the pre-
(1870), Cockbum, C. J.
viously formed deliberations of his own mind. Sound- 2 Thompson v. Kyner, 65 Pa. 878 (1870).
ness is to be judged from his conversation and actions
at the time the will is made.' = 1 Redfleld, Wills, '124; 18 Cent. L. J. 282-86 (1884),
cases; 26 Alb. L. J. 384-86 (1883), oases.
1 Hall V. Unger, 2 Abb. U. S. 513-15 (1867); 8 Conn. 39; ■" See generally 2 N. J. E. 11; 3 id. 581; 6 John. Ch.
1 Ga. 484; 32 Ind, 126; 56 Me. 846; 58 id. 453; 33 Md. 23; 158; 87 Ind. 18; 50 Mich. 456; 9 Oreg. 129; 33 Pa. 469; 65
4 Neb. 115; 23 N. J. E. 509; 9 Gratt. 704. id. 377; 8 W. N. 0. 203.
iiMcNett V. Cooper, 13 F. E. 586, 590 (1882), cases; ' Fee V. Taylor, 83 Ky. 261 (18a5), Holt, J.; 18 Cent.
Dexter v. HaU, 15 Wall. 9, 20 (1872), cases; Grifflth v. Law J. 282-87 (1884), cases.
Godey, 113 U. S. 95 (1885). "M'Naghten's Case, 10 CI. & F. 210, 200 (House of
> Bigelow V. Berkshire Life Ins. Co., 93 U. S. 287 (1876), Lords), per Tindal, Ld. C. J.; United States u. Holmes,
cases, Davis, J. 1 Cliff. 120(1858), Clifford, J.; 2 Steph. Hist. Cr. L. Eng.
158.
* Harrison v. Eowan, 3 Wash. 585-86 (1820), Washing-
 INSANITY 553 INSOLVENCY

The right and wrong test seems to prevail in Ala- mind such, in consequence of disease, that he was unr
bama, California, Connecticut, Delaware, Georgia, able to understand the nature of his actions, or to
Louisiana, Maine, Mississippi, Missouri, Nebraska, distinguish between right and wrong in his conduct?
New Jersey, New York, North Carolina, Tennessee, Was he subject to insane delusions that destroyed his
Texas, Virginia, Wisconsin, and in the Federal courts.' power of so understanding? And did this continue
To that test seems to be added the power to control down to and embrace the act for which he is tried? If
acts, in Indiana, Iowa, Kentucliy, Massachusetts, Min- so, he was simply an irresponsible lunatic. The an-
nesota, Ohio, and Pennsylvania." While in Illinois, swer of the judges in M^Naghteri's Case has not been
Kansas, Michigan, .and New Hampshire, responsibility- deemed entirely satisfactory, and the courts have set-
would seem to be left in broad terms to the jury.' tled down upon the question of knowledge of right
The required proof of insanity is either preponder- and wrong as to the particular act, or rather the
ance of testimony, or satisfaction beyond a reason- capacity to know it, as the test of responsibility. . .
able doubt. The burden to establish a prima facie Distinction must be made between mental and moral
case rests upon the accused; after which the prosecu- obliquity; between a mental incapacity'to understand
tion may rebut. the distinctions between right and wrong, and a moral
The defendant is not entitled to the benefit of a indifference and insensibility to those distinctions.
reasonable doubt whether he was or was not insane.* Indifference to what is right is not ignorance of it, and
See DoDBT, Reasonable. depravity is not insanity.'
That the accused is more ignorant and stupid than The opinion of a non-professional witness as to the
common men, of bad education, and of bad passions mental condition of a person, in connection with a
and bad habits, does not excuse. Those qualities are statement of the facts and circumstances, within his-
but the common causes of crime. ^ personal knowledge, upon which that opinion is
To constitute the crime of murder, the assassin must formed, is competent evidence. In a substantia,l sense,
have a reasonably sane mind. " Sound -memory and and for every purpose essential to a safe conclusion,
discretion," in the old common-law definition of mur- the mental condition of an individual, as sane or insane,
der, means that. The condition of mind of an irre- is a fact, and the expressed opinion of one who has
sponsibly insane man cannot be separated from his had adequate opportunities to observe his conduct
act. If he is laboring under disease of his mental and appearance is but the statement of a fact., Insan-
faculties to such extent that he does not know what ity is a condition, w,^ich impresses itself as an aggre-
he is doing, or does not know that it is wrong, he is gate on the observer. 3
wanting in that sound memory and discretion which See Delirium; Delusion; Intelligence; Luom In-
make a part of the definition of murder. As insanity is terval; Will, 1.
the exception, the law presumes sanity. It is for the INSCKIPTIOWS. See Evidence, Sec-
ondary.
defendant to prove insanity in the first instance, to
show that the presumption is a mistake as far as it INSENSIBLE. See Sense.
relates to him. Mind can only be known by its out-
ward manifestations, — the language and conduct of INSIMUL. See Computake, Insimul.
the man. By these his thoughts and emotions are INSINUATION. Suggestion; informa-
read, and according as they conform to the practice tion communicated : as, at the insinuation of
of people of sound mind, who form the large majority
of mankind, or contrast harshly with it, we form our
the plaintiff, the court made a particular
order.
judgment as to his soundness of mind. . . Was the
accused's ordinary, permanent, chronic condition of INSOLVENCY. Sometimes, the insuf-
ficiency of the entire property and assets of
' 85 Ala. 21 ; 71 id. 393; 24 Cal. 230; 62 id. 54, 120; 10
Conn. 136; 46 id. 330; 1 Houst. Cr. 249; 42 Ga. 9; 45 id. an individual to pay his debts — the general
57; 26 La. An. 302; 34 id. 186; 67 Me. 574; 3 S. & M. 518; and popular meaning. In a more restricted
64 Mo. 591; 4 Neb. 407; 21 N. J. L. 196; 58 N. Y. 467; 75 sense, inability to pay debts as they become
id. 159; Phil. L. E. 376; 3 Heisk. 348; 40 Tex. 60; 20
due in the ordinary course of business.
Gratt. 860; 40 Wis. 804; mid. 56; 1 Cliff 118.
The term is used in the latter sense when traders
' 31 Ind. 492; 88 id. 27; 26 Iowa, 67; 41 id. 832; 1 Duv.
and merchants are said to be insolvent, also in bank-
224; 7 Met. 600; 13 Minn. 341; 23 Ohio, 146; 4 Pa. 264;, rupt laws. With reference to persons not engaged in
76 id. 414; 78 id. 128; 88 id. 291; 100 id. 573.
trade and commerce, the term may have a less re-
831 m. 386; 11 Kan. 38; 17 Mich. 9; 19 id. 401; 43 N.
stricted meaning,' Opposed, solvency^ q. v.
H. 284; 60 id. 369. See generally 16 Cent. L. J. 288-86 In the sense of the Bankrupt Act, means that a
(1883), cases; 17 id. 408-10 (1883), cases; 36 Alb. Law J. party, whose business affairs are in question, is unable
336-31 (1887), cases.
< State V. Johnsdn, 91 Mo. 443 (1886); United States v. ' United States v. Guiteau, 10 F. E. 163, 166, 167-68,
Eidgeway, 31 F. E. 144 (-1887). As to "reasonable 182-83 (Jan. 85, 1882), Cox, J. ; note and cases to same,
doubt," see also 18 Cent. Law J. 402-6 (1884), cases. pp. 189-208, by Dr, Wharton.
5 United States v. Cornell, 2 Mas. 109 (1820), Story, J. ; " Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S.
Goodwin v. State, 96 Irid. 650 (1888). See also 16 Cent. 618-20 (1884), Harlan, J. ; 1 Whart. & S. Med. J. § 237.
Law J. 288-86 (1883), cases; 4 Crim. Law Mag. 512-14 s Toof i;. Martin, 13 Wall. 47 (1871), Field, J. See
(1883), cases; Med. Leg. J., Sept. 1883; Wash. Law E., Clarion Bank v. Jones, 81 id. 338 (1874); Cunningham
May, 1888. V. Norton, 185 U. S. 90 (
 INSPECTION 553 INSPECTION

to pay his debts as they become due in the ordinary The object of inspection laws is to improve the
course of his daily business.^ quality of articles produced by the labor of a country;
Insolvency is owing debts in excess of the value of to fit them for exportation, or, it may be, for domestic
one's tangible property. Without debts there can be use. They act upon the subject before it becomes an
no insolvency. Poverty and insolvency are not synon- article of foreign commerce, or of commerce among
ymous terms within the meaning of a statute confer- the States, and prepare it for that purpose. They
ring the right to administer upon an estato.^ form a portion of that immense mass of legislation
Insolvent.- 1, adj. Not possessing the which embraces everything within the territory of a
State, not surrendered to the general government: all
means with wliich to pay debts in full ; con- of which can be most advantageously exercised by the
cerning one so involved. In the last sense
States themselves.^
" insolvency " is frequently used. Thus we The scope of inspection laws is not confined to arti-
have insolvent debtor, trader, criminal, cir- cles of domestic produce or manufacture, or to arti-
cumstances; and insolvent or insolvency laws. cles intended for exportation, but applies to articles
3, n. A person who is not pecuniarily able imported, and to those intended for domestic use as

to pay his debts as they fall due ; also, a per- Recognized elements of inspection laws have always
son whose property, if distributed pro rata been quality of the article, form, capacity, dimen-
well."
among his creditors, would hot be sufficient sions, and weight of package, mode of putting up, and
to pay their claims in full. marking and branding of various kinds; all these mat-
Insolvency or insolvent laws. Laws ters being supervised by a public officer having au-
thority to pass or not pass as lawful merchandise, as
passed by the individual States for the distri- it did or did not answer the prescribed requirements.
bution, among creditors, of the property of It is not necessary that all these elements should co-
persons who are unable to pay their debts in exist to make a valid inspection law. Quality alone
the ordinary course of business. may be the subject of inspection, or the inspection
In strictness, "bankrupt" laws apply only to may be made to extend to all of the above matters.
These laws are none the less inspection laws because
traders or merchants, and "insolvent" laws to all
other persons. Insolvent laws 'are banlcrupt laws they may have a remote and considerable influence
passed by the States. Bankrupt laws discharge abso- upon commerce. Congress may interpose if a stat-
ute, under the guise of an inspection law, goes beyond
lutely; insolvent laws leave future acquisitions liable.
State laws are suspended while a national law is in the limit prescribed by the Constitution. =
A State may not require the payment of an assess-
operation. 8 ment or fee for each passenger upon an ocean vessel
See Bankruptcy; Cause, 1 (3), Probable; Ciroum- who is inspected to ascertain if he has leprosy, and
STANCES, 2; Contemplation; Pbefebenoe.
impose a fine upon the owners of the vessel for non-
INSPECTION". A looking at : examina- payment.* See Police, 2.
tionview.
; Whence inspector, inspectorship. Inspection laws have exclusive reference to per-
1. An official examination of articles of sonal property; they never apply to free human be-
food or of merchandise, to determine whether ings. A State cannot make a law designed to raise
money to support paupers, to detect or prevent crime,
they are suitable for market or commerce.'' to guard against disease, and to cure the sick, an in-
" No State shall, without the Consent of the Con- spection law, within the constitutional meaning of
gress, lay any Imposts or Duties on Imports or Ex- that word, by calling it so in the title. . . An in-
ports, except what may be absolutely necessary for spection is something which can be accomplished by
executing its inspection Laws." ^ looking at or weighing or measuring the thing to be
inspected, or applying to it at once some crucial test.
1 Buchanan v. Smith, 16 Wall. 308 (1872), Clifford, J. ; When testimony is to be taken and examined, it is not
Wager v. Hall, ib. 690 (1872); Dutcher v. Wright, 94 inspection in any sense whatever. =
U. S. 5B7 (1876); May v. Le Clau-e, 18 F. R. 16G (1882); 3. In the reception of evidence, a substitu-
iJe Bininger, 7 Blatch. 264, 273 (1870), cases. tion of the eye for the ear.
'Bowersox's Appeal, 100 Pa. 438 (1882); Daniels v.
Palmer, 35 Minn. 34T-50 (1880), cases.
See also 1 DiU. 195; 2 Low. 401; 1 Woods, 434; 2 id. 1 Gibbons v. Ogden, 9 Wheat. 303 (1834), Marshall,
401; 9 Cal. 45; 33 id. 625; 20 Conn. 69; 2 Ind. 67; 88 id. C. J.: 8 Cow. 46; 64 Pa. 105.
573; 19 La. An. 183, 197; 4 Cush. 134; 3 Gray, 600; ^Neilson v. Garza, 2 Woods, 290(1876), Bradley, J.;
3 Allen, 114; 133 Mass. 13; 9 N. Y. 594; 15 id. 9, 199; 43 Brown v. Maryland, 12 Wheat. 438 (1837), Marshall, C. J.
id. 75; 35 Hun, 169; 4 HiU, 652; 57 N. H. 458; 2 N. J. E. s Turner o. Maryland, 107 0. S. SS, 54, 51-54, note
173; 9 id. 467; 12 Ohio, 336; 13 Gratt. 683; 116 E. 0. L. (1882), cases, Blatohford, J.
1090; 2 Bl. Com. 286, 481; 2 Kent, 389. « People V. Pacific Mail Steamship Co., 8 Saw. 640
s Sturges v. Crownmshield, 4 Wheat. 195 (1819), Mar- (1838), Sawyer, Cir. J.
shall, C. J. ; 3 Mas. 160; 12 Wheat. 230. > People ti. Compagnie GSnSrale Transatlantique, 107
4 See 2 Woods, 390; 30 Blatch. 303. V. S. 61-63 a882\ Miller, J.: 20 Blatch. 390; 10 F. R.
"Constitution, Art. I, sec. 10, cl. 2. 357; Story, Const. § 1017; Cooley, Const. Lim. 730.
 INSPECTION 554 INSTAR

Inspection of documents, or of rec- the case. But inspection alone is not relied upon
ords. Refers to the right of a party to a when more exact proof can be produced.'
3. Supervision ; trusteeship.
suit to inspect and take copies of writings or
records, in the possession of his opponent or Deed of inspectorship. An assignment
by a debtor of his property, by which he is
of a pubh'c ofScer, which are material to the allowed to manage the property for a speci-
maintenance of his case.
In civil practice, independently of the old doctrine fied time, under the inspection of certain
of prof ert and oyer, a rule may be granted to compel individuals, appointed by the body of the
the production and permit the copying of such papers creditors, whose duty is to see that the prop-
as are essential to the maintenance of a contested
right. But surrender of the documents will not be or-
erty is disposed of in the manner most con-
dered. The doctrine applies to public, corporation, ducive to the interests of the creditors.2 See
and private documents, in which the petitioner has an Composition : Liquidator.
interest, and which are not of an incriminating- nature. IlfSTALLMENT.a One of the several
Previous demand must have been made, and the doc- portions of a debt, payable at different
uments must be under respondent's exclusive control. '
See DiscovEBT, 6, Bill of; Produob, 2; Eecord, Nul
tiel. periods.
Where, for the purpose of collection, an assessment
for benefits accruing from a public improvement is di-
Inspection of the person. In an ac- vided into installments, each one may be regarded as
tion for damages for personal injuries, the an assessment, and a statute of limitations run against
plaintiff may be required by the court, upon it as a <Listinct claim.*
application, to submit his person to an ex- Buying or selling personalty upon the installment
plan is upon the scheme of different portions of the
amination for the purpose of ascertaining the
price at stipulated intervals. When the seller, at his
character and extent of his injuries. option, may remove the property for breach of con-
The courts have held in divorce cases, that an ex- tract, replevin will not lie, until after demand and re-
amination may be ordered of a defendant alleged to
fusal to surrender.' See Sale, Conditional; Lien,
be impotent.^
Secret.
Trial toy inspection. When, for the INSTANCE. Application to set aside a
greater expedition of a cause, in some point proceeding for irregularity must be made as
or issue the object of the senses, the judge,
upon the testimony of his own sense, decides early as pqssible— "in the first instance."''
Instance court. That branch of the Eng-.
the point in dispute.' lish court of admiralty which has cognizance
When the fact, from its nature, must be evident to
the court either from ocular demonstration or other of all matters pertaining to intercourse upon
irrefragable proof, there the law departs from its the high seas except prizes.'
usual custom, the verdict of twelve men, and relies INSTAIfTER. L. Without delay : within
upon the judgment of the court alone; as, in allega- twenty-four hours. 8 See Immediately.
tion^ of non-age, that plaintiff is dead when one call- INSTAR. L. Like; resembling; equiv-
ing himself plaintiff appears, that a man is an idiot; alent to.
and in references to the almanac. But in all these
<!ases, the judges, if they conceive a doubt, may order Instar omnium. Representative of all.
it to be tried by jury.^ Money is said to be instar omnium as to values;'
Inspection is to be regarded rather as a means of one act, as to the purpose of all acts; '° and one case,
■dispensing with evidence than as evidence itself. That as to the reasoning in all cases of its class, ^i
which the court or jury sees need not be proved. It is
valuable as an ingredient of circumstantial evidence. > 1 Whart. Ev. §§ 845-47, cases; 25 Law J. 3-7 (1887),
A common illustration is where juries are taken to
•view the scene where the events of litigation oc- = [4 South. Law Eev.'639 (1878), cases.
curred. . . All materials and objects in any way ' Spelled, also, instalment.
part of the res gestce may be produced at the trial of iPelton V. Bemis, 44 Ohio St. 57 (1886); Eyall v.
Prince, 82 Ala. 866 (1886).
1 1 Whart. Ev. §§ 748-56, cases; 1 Greenl. Ev. §§471-78, » Cushman v. Jewell, 7 Hun, 526 (1876); Smith v.
559-62, oases;. Brewer v. Watson, 71 Ala. 304-6 (1882), Newland, 9 id. 563 (1877); 89 ni. 233; 20 Kan. 137; 27
cases; Commonwealth, ex rel. Sellers v. Phoenix Iron Mich. 209, 463; 38 id. 94; 41 N. Y. 155; 70 id. 466; 13 Bep.
511.
Co., 105 Pa. 115-19 (1884), cases; 23 Am. Law Eeg. 396-
400 (1884), oases; 22 Cent. Law J. 341 (1886), oases. » 3 Chitty, Bl. Com. 287.
' See generally Schroeder v. Chicago, &o. R. Co., 47 ' See 3 Kent, 365, 378; 18 Johns. 292.
Iowa, 376-83 (ISW); Atchison, &c. H. Co. v. Thul, 29 8 Moffat V. Dickson, 3 Col. 315 (1877).
Kan. 466, 474 (1888); 19 Cent. Law J; 144^48 (1884), cases; « 1 Bl, Com. 266; 2 id. 466; 3 id. 231.
Z Bish. M. & D. § 590, oases. "4B1. Com. 155.
s 3 Bl. Com. 332-33. " 4 W. N. C. (Pa.) 500.
 INSTITUTE 555 INSURANCE

IlfSTITUTE. 1. To commence: as, to INSTEUMENT. 1. An implement or

institute an action, proceeding, suit. tool, qq. V.
2. To appoint: an instituted executor is 2. Whatever may be presented as evidence
one chosen by the testator. to the senses of an adjudicating tribunal, —
3. To establish upon a permanent basis. a document, witness, or even a living thing
Whence institutional. produced for inspection.!
Institutes. Text-boolis exhibiting the A means of proof ; the means by which the
established principles of jurisprudence ; com- truth is in fact established, and whether
prehensive treatises upon elementary law; written or unwritten.2
commentaries upon law. 3. Anything reduced to writing: a " writ-
Institution. A permanent establish- ten instrument " or " instrument of writ-
ment, as contradistinguished from an enter- ing ;" more particularly, a document of a
formal or solemn character.
prise of a temporary character.! See Per-
manent. Common descriptive epithets: commercial, negoti-
Sometimes describes the establishment or place able, sealed and unsealed instruments.
where the business or operations of a society or asso- "Instruments in writing," associated in a statute
ciation are carried on; at other times, designates the with "bonds," "laws," "deeds," and "records," has
a restrictive connotation. Independently of such sur-
organized body.''
HTSTIlirCT. 1. To give orders to an roundings, the expression, by itself, does not compre-
hend all written papers, but only written papers of a
agent in relation to the duties of his employ- class. An instrument is " something reduced to writ-
ment. ing as a means of evidence." Returns of births, mar-
Section 251, Eev. St., empowei-ing the secretary of riages, and deaths, to a department of government,
the treasury to issue regulations for the government are not "instruments." *
of collectors of revenue, makes a distinction between A generic term for bills, bonds, conveyances, leases,
" instructions " and " regulations," which is inherent mortgages, promissory notes, wills, and like formal or
in the nature of the two things. An instruction is a solemn writings. Scarcely includes accounts, letters
direction to govern the conduct of the particular ofQ- in ordinary correspondence, memoranda, and similar
cer to whom it is addressed; a regulation affects a writings, with respect to which the creation of evi-
class or classes of ofBcers.' dence to bind the party, or the^stablishment of an ob-
3. To direct a jury as to their duties under ligation or title, is not the primary motive.*
Instruments will be so construed as to carry into
■ the law in a cause about to be submitted to
effect the intention of the parties, but there must al-
them for a verdict.
ways be sufficient words to enable the courts to ascer-
Binding or peremptory instruction. tain what this intention was. The rule that courts
Directs the kind of verdict the jury should will so construe an instrument as to make it effective,
return. does not mean that they will inject into it -new and dis-
tinct provisions. Thus, that an instrument may have
The jury may be instructed to And for the defend- effect as a conveyance, it must contain words import-
ant, where, if the verdict were against him, the coiirt
would set it aside.^
ing a grant.'
See Alteration, 2; Caption, 2; Cancel; Date; De-
The practice saves time and costs; gives the cer- scription; Forgery; Lost, 2; Paper; Presents (1);
tainty of applied science to the results of judicial in- Peofert; Eedundancy; Eeform; Eepugnant; Seal, 1;
vestigation; draws clearly the line which separates
the provinces of the judge and the jury, and fixes Sign; SpEOiAt.TY; Spoliation; Sobscribe; Writing.
where it belongs the responsibility which should be INSITPFICIENT. See Sufficient.
assumed by the court.' rCfSULT. See Assault; Provocation.
Misinstruet. To charge a jury errone- INSUBANCE. Making sure, secure,
ously with respect to the law in the case safe: indemnity against loss; a contract to
pending before them. pay money in the event of pecuniary loss
See Advise; Charge, 3 (2, c); Jury, Trial by. from a specified cause.
Assurance. Formerly used in the sense of
I Indianapolis v. Sturdevant, 24 Ind. 895 (1865). insurance ; is sometimes limited to risks upon
a Gerke v. Purcell, 85 Ohio St. 244 (1874); Appeal Tax
lives. Whence " assurer " and " assured."
Court V. St. Peter's Academy, 50 Md. 345 (1878). 1 [1 Whart. Ev. § 61^.
3 Landram v. United States, 16 Ct. CJ. 86 (1880).
"IGreenl.Ev. §§3, 806-8.
4 Griggs V. Houston, 104 V. S. 553 (1881); Montclau- v. s State V. Kelsey, 44N. J. L. 34 (1882), Beasley, C. J.
Dana, 107 id. 162 (1882); 93 id. 143; 106 id. 30; 122 id. 411;
g McCrary, 268; 17 F. E. 133. < [Abbott's Law Diet. ; Hankinson v. Page, 31 F. E.
'Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 186 (1887).
e37 (1870), Swayne, J. ' Hummelman v. Mounts, 87 Ind. 180 (1882).
 INSURANCE 556 INSURANCE

There are instances in which "the assured" refers Jimited amounts, the losses sustained by the
to the person for whose benefit the contract is efEected, assured in their buildings, ships, and effects.
and " the insured " to the person whose life is insured. The contract called life assurance is a mere
The application of either term to the party for whose
benefit the insurance is effected, or to the party whose contract to pay a certain sum of money on
life is insured, has generally depended upon its collo- the death of a person, in consideration of the
cation and context in the policy. * due payment of a certain annuity for his
Insurer. The party who engages to make life. This last species in no way resembles a
the indemnity. Insured, n. He who is to
receive the indemnity : also, the person the contract of indemnity, i '
Guaranty insurance is instituted as a sub-
continuance of whose life has been made the
stitute for private suretyship, to aid per-
subject of a contract.
sons in obtaining places of trust and respon-
The subjects of insurance are property, life, sibility, and to protect employers from the
and health. In fire and marine insurance', unfaithfulness of their employes.^
the subject is property ; in life and accident The word "insurance," in common speech
insurance, the lives, and health or freedom and with propriety, is used quite as often in
from physical injuries, of human beings. the sense of contract of insurance, or act of
Contracts are also made upon the fidelity of insuring, as in that expressing the abstract
agents and trustees, and upon the honesty of idea of indemnity or security against loss.' ,
customers as debtors ; upon titles to realty ; A contract of life assurance is not an assurance for
upon valuables against theft; upon plate- a single year, with a privilege of renewal from y,ear
glass wmdows&gamst breakage; upon sieam- to year by paying the, annual premium, but an entire
ioilers against explosion ; upon the lives and contract of assurance for life, subject to discontinu-
ance and forfeiture for non-payment of any of the
good condition of domestic animals. There stipulated premiums. The paynaent of each premium
are also other species. The commonest kinds is not, as in fire policies, the consideration for insur-
are accident, fire, life, and marine insurance. ance during the next following year. It often happens
In general, insurance is applicable to protect ■ that the assured pays the entire premium in advance,
or in five, ten, or twenty annual installments. Each
men against uncertain events which may in installment is, in fact, part consideration of the entire
any wise be of disadvantage to them.2 insurance for life. The annual premiums are an
Insurance is a contract whereby one, for a annuily, the present value of which is calculated to
consideration, undertakes to compensate an- correspond with the present value of the amount in-
sured, a reasonable percentage being added to the
other ifhe shall suffer loss.'
premiums to cover expenses and contingencies. The
A contract of insurance is an agreement, whole premiums are balanced against the whole ,in- .
by which one party, for a consideration surance. . . All the calculations of the insurance
(usually paid in money, either in one sum or company are based on the hypothesis of prompt pay-
at different times during the continuance of ments. Forfeiture for non-payment is a necessary
means of protecting itself from embaiTassment. ^
the risk), promises to make a certain pay- The insured parties are associates in a great scheme.
ment of money upon the destruction or This associated relation exists whether the company
injury of something in which the other party be a mutual one or not. Each is interested in the en-
has an interest.* gagements ofall; for out of the co-existence of many
risks arises the law of average, which underlies the
A contract between A and B, that, upon whole business. An essential feature of the scheme is
A's paying a premium equivalent to the haz- the mathematical calculations referred to, on which
ard run, B will indemnify him against a par- the premiums and amounts assured are based. And
ticular event.5 these calculations, again, are based on the assumption
Policies of insurance against fire and of average mortality, and of prompt payments and

marine risks are contracts of indemnity, — Compound interest thereon.*

the insurer engaging to make good, within
' Dalby v. The Indian & London Life Assur. Co.,'
1 Connecticut Mut. Life ins. Co. v. Luchs, 108 XT. S. 80 E. C. L. ♦887 (1854), Parke, B. See also Mutual Life
504 (188.3), Field, J. Ins. Co. V. Girard Life Ins. Co., 100 Pa. 180 (1883).
^ See May, Ins. § 73. 2 May, Ins. §§ 73, 540.
2 May, Ins. § 1. ^ Fupke V. Minnesota Farmers' Mut. Fire Ins. Asso-
* Commonwealth v. Wetherbee, 105 Mass. IGO (1870), ciation, 29Minn. 864 (188S), cases; 44 N. J. L. 87.
Gray, J. Approved, 71 Ala. 443; 30 Kan. 687; 72 Mo. 169. < New York Life Ins. Co. v. Statham, 93 U. S. 30-31
= 2 Bl. Cora. 458; Cummings v. Cheshire County Fire (1876), Bradley, J.; Klein i). New York Life Ins. Co.,
Ins. Co., 55 N. H. 468 (1875), Foster, C. J. 104 id. 88(1881); Thompson «. Knickerbocker Life Ins.
 INSURANCE 557 INSURANCE

A policy of marine insurance is a contract the assured, or from the ties of blood or mar-
of indemnity against all losses accruing to riage to him, as will justify a reasonable .ex-
the subject-matter of the policy from certain pectation of advantage or benefits from the
perils during the adventure. This subject- continuance of his life. It is not necessary
matter need not be strictly a property in the that the expectation of advantage or benefit
ship, goods, or freight.! should be always capable of pecuniary esti-
The contract of insurance sprang from the law mationfor
; a parent has an insurable interest
maritime, and derives all its material rules and inci- in the life of his child, and a child in the life
dents therefrom. It was unknown to the common
law. Its first appearance in any code or system of of
laws was in the law maritime as promulgated by the andhisa parent,
wife in a the husband
life ofin her
the husband.
life of his wi.'e,
The
various maritime states and cities of Europe. It grew natural affection in cases of this kind is con-
out of the doctrine of contribution and general aver- sidered as more powerful, as operating more
age, which is foimd in the maritime laws of the an- efficaciously, to protect the life of the insured
cient Rhodians. By this law, if ship, freight, or cargo
was sacrificed to save the others, all had to contribute than any other consideration. But in all
their proportionate share of the loss. This division of cases there must be a reasonable ground,
loss suggested a previsional division of risk; first, founded upon the relations of the parties to
among those engaged in the same enterprise; and,
each other, either pecilniary or of blood or
next, among associations of ship-ov(mers and shipping
merchants. Hence, too, the earliest form of the con- alfinity, to expect some benefit or advantage
tract was that of mutual insurance. The next step from the continuance of the life of the as-
was that of insurance upon premium. Capitalists,
familiar with the risks of navigation, were found will- Otherwise,
sured.! the contract is a mere wager, by which
ing to guarantee against them for a small considera- the party taking the policy is directly interested in the
tion or premium paid. This, the final form, was in death of the assured. Such policies have a tendency
use as early as the beginning of the fourteenth cen- to create a desire for the event. They are, therefore,
tury.' independently of any statute on the subject, con-
Insurable interest. (1) In life insur- demned as being against public policy. For which
reasons, a person who has procured a policy upon his
ance. Any reasonable expectation of pecun-
own life cannot assign it to a party who has no insur-
iary benefit or advantage from the continued
life of another creates an insurable interest able interest in his life.'
(3) In fire and marine insurance. These
in such life. Examples are, the interest of a being contracts of indemnity, the insured
man in his own life, in the life of his v^ife or must have some interest in the property at
chQd ; the interest of a vpoman in her hus- the time of injury.2
band ;a creditor's interest in the life of his But he need not have either a legal or equi-
debtor ; interest in one's ovrn life for a rela- table title. If he has a right in or against
tive or friend ; the interest of tvro or more in
the property, which some court will enforce,
their joint lives for the survivor. The essen- a right so dependent for value upon the con-
tial thing is, that the policy is obtained in tinued existence of the property alone as that
good faith, and not for the purpose of specu- a loss of the property will cause him pecun-
lating upon the hazard of a life in which the
insured has no interest.' iary damage, he has an insurable interest.'
A right of property is not indispensable. Injury
It is not easy to define with precision what from its loss or benefit from its preservation may be
will in all cases constitute an insurable inter- 1 Wamock v. Davis, 104 U. S. 779, 782 (1881). Field, J.
est, so as to take the contract out of the class Approved, Connecticut Mut. Life Ins. Co. v. Luchs, 108
of wager policies. It may be stated gener- id. 605 (1883). See also 82 Alb. Law J. 385-88, 403-6
ally, however, to be such an interest, arising (1885), cases; 2& Cent. Law J. 27 (1887), cases; 2i How.
from the relations of the party obtaining the 388; 13 Wall. 619; 15 id. 643; 8 Saw. 620; 16 F. E. 652; 41
Ind. 116; 101 Mass. 564; 13 N. Y. 31; 20 id. 33. On as-
insurance, either as creditor of or surety for signing life policies, see McCnun d. Missouri Life Ins.
Co , ib. 252 (1881); Connecticut Mut. Life Ins. Co. v. Co., 36 Kan. 148 (1887), cases; 18 Cent. L. J. 346-49 (1884),
Home Ins. Co., 17 Blatch. 146-47 (1879); 100 Pa. 180. cases; 84 Am. Law Reg. 763-09 (1885), eases. Eights in
1 Lloyd V. Fleming, L. E., 7 Q. B. 303 (1873), Black- policy for the benefit of a wife af tir the death of her
burn, J.; 3 Kent, 253. husband, 27 id. 377-81 (1888), cases.
2 New England Mut. Marine Ins. Co. v. Dunham, 11 2 Connecticut Mut. Life Ins. Co. v. Schaefer, ante.
Wall. 31-33 (1870), Bradley, J. ' [Rohrback v. Germania Fire Ins. Co., 63N. Y^64
a Connecticut Mut. Life Ins. Co. v. Schaef er, 94 U. S. (1875), Folger, J. See also Buck v. Chesapeake Ins.
460, 457 (1876), Bradley, J. Co., 1 Pet. 151 (1828); 13 Iowa, 287; 42 id. 13.
 INSURANCE 558 INSURANCE

sutScient. Hence, an agent, factor, bailee, carrier, The tbeorj- is that the premiums paid, or to be paid,
trustee, consignee, mortgagee, or otlier lien-holder, constitute a fund for the liquidation of losses. They
may insure to the extent of his interest; and by the may be paid by note or cash.'
clause " on account of whom it may concern," for all Mutuality exists when the members contribute cash
others to the extent of their interests, where there is or assessable notes, or both, to a common fund, out of
previous authority or subsequent ratification.' which each is entitled to indemnity in case of loss."
The owner of an equity of redemption (an equitable Stock insurance company. In this the
interest) has an insurable interest equal to the value of members contribute a capital whjch is liable
the buildings, whether personally liable for the mort- for losses and expenses, and the insured pay
gage debt 01- not. And so has the holder of a mechan-
ic's lien.^ premiums.
From the nature of the contract of insurance as a There are companies which combine both schemes.
contract of indemnity, the insurer, when he has paid Insurance loss. The occurrence of a
the assured the amount of the indemnity agreed, upon,
is entitled, by way of salvage, to the benefit of anything
casualty insured against — the loss of a life or
that may be received, either from the remnants o£ the lives, the impairment of health, or the de-
goods or from damages paid by third persons for the struction ofproperty, with consequent dam-
loss.'
The insurance which n person has on property is age.
Insurance policy. A contract for insur-
not an interest in the property itself, but is a collat-
eral interest, personal to the insured."
ance reduced to writing. Called, briefly, " a
Xnsurance agent. An insurance company is re- policy ; " practicallj', a bond of indemnity.
sponsible for the acts of its agent within the general Implies a contract in writing, the usual mode
scope of the business intrusted to his care, and no lim- among prudent persons.^
itation on his power, unloiown to strangers, will bind But, unless prohibited by positive regulations, may
them.s be The
by parol.*
contract may be either made or changed by
Insurance broker. If the insured employs an
insurance broker to place insurance for him, he is his
agent, and not that of the company. But jf, acting on Blanket or floating policy. Is issued to a
behalf of an agent of the company, the broker solicits factor
parol. ^ or warehouseman, and intended to
the insurance, he is the agent of the company.^ cover margins uninsured by other poUcies,
Insurance company. An association, or to cover the limited interest of the factor
usually incorported, which makes a business or warehouseman.^
of entering into contracts of insurance. Endowment policy. In one respect, a con-
Mutual insurance company. This is com- tract payable in the event of a continuance
posed of the persons insured, in their lives or of life ; in another respect, in the event of
property. They contribute pro rata upon
the amount they have insured (and, possibly, death before the period specified.''
Interest policy. States or intends that the
a sum per capita, annually or otherwise) to a insured has a real and substantial interest in
fund, out of which losses and expenses are the thing insured. Opposed, ijbager policy.^
paid. Open or running policy. Enables a mer-
chant to insure goods shipped at a distant
'Hooper v. Eobinson, 98 U. S. 538 (1878), cases,
Swayne, J. ; Home Ins. Co. •«. Baltimore Warehouse
port when it is impossible for him to be ad-
Co., 93 id. 643 (1876), cases. vised of the particular ship upon which they
» Insurance Co. v. Stinson, 103 U. S. 29 (1880).
5*Phcenix Ins. Co. v. Erie Transportation Co., 117
U. S. 321 (1886), cases. Gray, J. ' State V. Manufacturers' Mut. Fire Ins. Co., 91 Mo.
«The City of Norwich, 118 U. S. 494 (1886), cases. 318 (1886), cases.
Contracts as effected by changes of title, 19 Am. Law ! Spruance v. Farmers', &c. Ins. Co., 9 Col. 77 (1885),
Eev. 895-915 (1886), cases. After-acquired titles, 21 cases.
Cent. Law J. 600-3 (1885), cases. On assigning flre and s Manny v. Dunlap, 1 Woolw. 374(1869); 11 Paige, 556.
marinje policies, see 1 Harv. Law Eev. 388-98 (1888), ' Humphry v. Hartfleld Fire Ins. Co., 15 Blatch. 611
cases. (1879), cases; Eelief Fire Ins. Co. u. Shaw, 94 U. S. 574
6 Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222, 235 (1876), cases.
(1871), cases. See also 25 Conn. 53, 465, 542; 26 id. 42; s Cohen v. Continental Fu-e Ins. Co. , 67 Tex. 328 (1887),
37 N. H. 36; 19 N. Y. 305; 23 Pa. 60, 72; 26 id. 50; 3 Phill.
Ins. § 1848; May, Ins. §§ 118-55. " Howe Ins. Co. v. Baltimore Warehouse Co., 93 U. S.
541 (1876).
» Mohr Distilling Co. v. Ohio Fire Ins. Co., 13 F. E. 74
' Brummer v. Cohn, 86 N. Y. 17(1881).
(1882); May, Ins. § 123. See also Haden v. Farmers',
&c. Fire Association, 80 Va. 683 (1885); Kyte v. Com- s See Sawyer v. Dodge County Ins. Co., 87 Wis. 539
mercial Union Assurance Co., 144 Mass. 46 (1887). (1876); May, Ins. §33.
 INSURANCE 559 INSURRECTION

are laden, and when, therefore, he cannot In such case the policies are considered as one; the
name the ship in the policy. insurers are liable pro rata, and are entitled to con-
tribution toequalize payments made on account of
The usual words are the cargo " on board ship or
ships," with a condition that the particular ship, as losses. '
soon as known, shall be declared to the underwriter, Over insurance. Insurance upon prop-
whose agreement is that the policy shall attach it the erty in an amount exceeding the value. See
vessel is seaworthy. From the uncertainty attending Valuation, Over.
the unknown condition of the vessel, a high rate of
Premium of insurance. The consid era-
premium is demanded.'
Paid-up policy. A policy upon which all tion in a contract of insurance. '
Usually paid in money, in one sum, or at different
the annual premiums are paid, or considered times during the continuance of the risk. The amount
as paid, at one time. may be secured by a, premium note. See Premium.
A policy of life insurance containing a provision Re-insurance. Insurance upon an un-
that a default in payment of premiums shall not work
a forfeiture, but that the sum insm-ed shall then be derwriter's contracts of insurance.^
Contracts of re-insurance, by which one insurer
reduced and commuted to the annual premiums paid,
causes the sum which he has insured to be re-assured
confers the right on the assured to convert the policy
to him by a distinct contract with another insurer,
at any time, by notice to the insurer, into a paid-up
policy for the amoimt of premiums paid.> with the object of indemnifying himself against his
own responsibility, though prohibited for a time in
Time policy. In this the duration of the
England by statute, are valid by the common law, and
risk is fixed by definite periods. In a voyage have always been lawful in this country ; and in a suit
policy the duration is determined by geo- upon such a contract, the subject at risk and the loss
thereof must be proved in the same manner as if the
graphical limits. 3
Valued policy. When the parties, having original assured were the plaintiff.'
When a policy of insurance contains contradictory
agreed upon the value of the interest insured, provisions, or has been so framed as to leave room for
to save the necessity of further proof, insert construction, rendering it doubtful whether the par-
the valuation in the policy in the nature of ties intended the exact truth of the applicant's state-
ments to be a condition precedent to a binding con-
liquidated damages.* See Value, Equitable.
tract, the court should lean against that construction
Wager policy. In this the insured party which imposes upon the assured the obligations of a
has no interest in the matter insured, only warranty. It is the language of the company which
an interest in its loss or destruction. the court is invited to interpret, and it is both reason-
Void, as against public policy or positive law. But able and just that its own words should be construed
precisely what interest is necessary to take a policy most strongly against itself.*
out of this category has been the subject of much dis- As to fire and marine insurance, see Aeajidon, 1;
cussion. In life insurance it is at least essential that Accident; Average; Capture; Conceal, 5; Con-
the policy be obtained in good faith, and not for specu- tained; Contribution; Departure, 2; Deviation;
lation upon the hazard of a life in which the insured Freight; Hazardous; Loss, 2; Occupied; Premises,
has no interest. In marine and fire insurance, where 3; Befobh; Eepresentation, 1; Seizure, 2; Under-
the insurance is strictly an indemnity, the difference writer; Valuation.
is not so great.* See further Insurable Interest j As to life insurance, see Declare, 4; Disease; Epi-
Wager, 8. demic; Forfeiture; Intemperate; Representation,
Insurance risk or peril. The event or 1; Suicide; True;
casualty insured against. See Peeil ; Risk. nS'SURBECTION'. A rising against
Double insurance. A second insurance civil or political authority ; the open and act-
upon the same interest, against the same ive opposition of a number of persons to the
perils, in favor of the same person.^
' Sloat V. Royal Ins. Co., 49 Pa. l4, 18 (1865); 2 Wood,
1 Orient Mut. Ins. Co. v. Wright, 23 How. 405-6(1859), Fu-e Ins. §§ 372-407.
cases. Nelson, J.; 38 Ohio St. 134; 8 Kent, 258, 272; 2 See Commercial Ins. Co. v. Detroit Fire & Mar. Ins.
May, Ins. § 31. Co., 38 Ohio St 15-16 (1882); May, Ins. § 11; PhilUpc,
' Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 264, Ins. § 374.
272 (1884), Bradley, J. » Phoenix Ins. Co. v. Erie Transp. Co., 117 U. S. 323
'May, Ins. §34. (1886), cases. Gray, J. ; Sun Mut. Ins. Co. v. Ocean Ins.
* See 3 Kent, 272; May, Ins. § 30; Wood, Ins. § 41; 88 Co., 107 id. 485, 510 (1882); 2 Kent, 278-79.
Ohio St. 134; 100 Mass. 475. • First Nat. Bank of Kansas City v. Hartford Ins. Co.,
' Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 95 U. S. 678 (1877), Harlan, J. ; Grace v. American Cen-
460 (1876), Bradley, J.; 2B1. Com.460; 8 Kent, 275; May, tral Ins. Co., 109 id. 282 (1883 1; Moulor v. American Ins.
Ins. §33. Co., Ill id. 341-42 (1884); Dwight v. Germania Life Ins
• See Turner v. Meridan Fire Ins. Co., 16 F. K. 454, Co., 103 N. T. 347-48 (1886), cases; Travelers' Ins. Co. v.
460-65 (1883), cases; May, Ins. § 440. McConkey, 127 U. S. 666 (1888), cases.
 INTELLIGENCE 580 INTENT

execution of law in a city or a state ; a rebell- Criminal intent. Evil, malicious will
ion; a revolt, i See Mob; War. expressed in a criminal act.
INTELLIGENCE. Discernment; un- While crime proceeds from a criminal mind, ignor-
ance of the law is not a defense.
derstandinknowledge.
g;
The possession of intelligence is not a test of sanity ; General intent. A purpose to do some-
for with it there may be an absence of power to deter- thing in general : as 1, to benefit a class of
mine the nature of the act, and its effect upon the sub- persons or objects by a charitable devise;
jeot.2 3, to violate law. Opposed, 1, particular
INTEMPERATE. If the rule or habit
intent: an intent, expressed in a will,
is to drink to intoxication when occasion
which cannot be given effect, — see Cy Pkes ;
offers, and sobriety or abstinence is the ex-
and, 2, specific intent: applied to an act
ception, then the charge of "intemperate done with a particular design.
habits" is established. It is not necessary When an act, in general terms, is indictable, a crim-
that the custom be an every-day rule.^ inal intent need not be shown, unless, from the lan-
" Sober and temperate " does not imply total absti- guage or effect of the law, a purpose to require the
nence from intoxicating liquor. The moderate, tem- existence of such intent can be discovered. To intro-
perate use of intoxicating liquors is consistent with duce into the law the requisite of a guilty mind it must
sobriety.* appear that such was the intent of thelaw-maker.i
While in a very clear case a court may assume that Neglect to discharge a duty, or indifference to con-
certain facts disclose a case of habitual intemperance, sequences, is,in cases, equivalent to a specific crim-
or that they warrant the opposite conclusion, in the
inal intent.'
main these are questions to be submitted to the jury.' '* Act " and " intention," in the phrase " die by his
A life policy provided that it should be void if the
own act or, intention," mean the same as "act " alone,
insured "became so far intemperate as to impair for act implies intention.^
health, or induce delirium tremens." The trial court A criminal intent and a criminal act make a crime.
charged that the " impairment of health " was not the But here a " specific intent " and a " criminal intent "
indisposition arising from a drunken debauch, but that are not to be confounded: they have nothing in com-
arising from such frequency of use as indicated an in- •mon except as mental operations. The former deter-,
jurious addiction to the practice. Held, that it was for mines the object toward which the act shall be di-
the jury to decide whether death was caused by an rected; the latter that the act so directed shall be
excessive use of stimulants.^ done. The former, as part of the crin^inal act, must
See Drunkenness; Habit; Intoxicate. be alleged and proved as any other portion of the act;
INTENDMENT. The correct under- the latter is neither alleged nor proved, but inferred
standing or intention of the law; the true from the commission of the act. Thus, a criminal act
presumes criminal intent, though the accused was in-
meaning or correct policy of a law.
toxicatedbut
; where th& existence of a specific intent
INTENT; INTENTION. Design; de- is necessary to the act, a degree of drunkenness incom- '
termination; purpose. patible with the formation of that intent negatives the
"Intent" implies purpose only — refers to act and dispi-oves the crirne.' See further Crime; In-
the quality of the mind with which an act is dictment; Malice: PREMEmTATE.
Intention is judged of with reference to volimtary
done. " Attempt " (q. v.) implies an effort to
carry intent into execution.' When» guilty knowledge is an ingredient of an of-
action.
Common intent. The ordinary meaning fense, evidence may be given of the commission of
of words. other acts of a like character where they are necessa-
rily connected in time or place or as furnishing a clue
to the motive." See further Guilty.
1 County of Allegheny v. Gibson, 90 Pa. 417 (1879):
Worcester's Diet. Intention may be proved inductively by collateral
facts; as, in trespass, slander, libel, fraud, adultery,
'Ortwein v. Commonwealth, 76 Pa. 42i (1874); Ben-
nett V. State, 57 Wis. 86 (1883). questions of good faith, of prudence, etc'
" Tatum V. State, 63 Ala. 163 (1879), Stone, J. > Halsted v. State, 41 N. J. L. 652, 589-91 (1879), cases,
* Brockway v. Mutual Benefit Life Ins. Co., 9 F. E. Beasley, C. J. See also United States v. Bayaud, 16
863 (1881). See Knickerbocker Life Ins. Co. v. Foley, P. K. 383 (1883).
105 U. S. 354 (1881); 122 id. 512; Union Mut. Life Ins. Co. = United States v. Thomson, 13 F. E. 245 (1882).
1). Reif, 36 Ohio St. 599 (1881); 62 Cal. 178; 34 Iowa, 222; ' Chapman v. Eepubliclns. Co., 6 Biss. 340 (1874).
70 N. Y. 605; 9 E. I. 346; 1 F. & F. 736.
« See 3 Greenl. Ev. §§ 13-19; 1 Bish. Cr. L. §§ 488-9'3;
' Northwestern Mut. Life Ins. Co. v, Muskegon Bank, Broom, Com. 876, 887-88; 2 Steph. Hist. Cr. Law Eng.
182 U. S. 608 (1887), Miller, J. 110-13; Commonwealth v. Hersey^ 3 Allen, 179-81 (1861),
s^Etna Life Ins. Co. v. Davey, 123 U. S. 743-44 (1887); cases.
N. W. Life Ins. Co. v. Muskegon Bank, 132 id. 506 (1887), « Ee Binlnger, 7 Blatch. 267 (1870).
distinguished. •People V. Qibbs, 93 N. Y. 473 (1883); 58 id. 555.
'Prince V. State, 35 Ala. 369 (1860), cases. ' 1 Whart. Ev. |§ 31-37, cases.
 INTENT 561 INTEREST

At common law, an intention to commit a felony- INTER. L. In the midst; among; be-
does not amount to the felony, though it did, by stat- tween.
ute, where the intention was to commit treason.^ Used in Latin phrases, and in compound words; in
An intention to commit a fraud has been given the
the latter, the simple words are sometimes separated
force and effect of fraud.' by a hyphen.
" Intent to injure and defraud " charges embezzle- Inter alia. Among other things.
ment, forgery, and like offenses.'
As men seldom do unlawful acts with innocent in- Inter alios. Among other persons — as
tentions, the law presumes a wicked intent from any to strangers. See Res, Inter, etc.
such act; but the prima facie case thus made out may Inter.com. See Interim, Committitur.
be rebutted by showing the contrary. Thus, in mur- Inter conjuges. Between husband and
der, malice is presumed from the fact of killing.* wife.
Every person of sound mind is presumed to intend
the necessary, natural, or legal consequences of his Inter pares. Between equals — in capac-
deliberate act.' This presumption may be conclusive, ity or opportunity.
as when the consequences must necessarily follow the
act; or be disputable, rebuttable by evidence of want Inter partes. Between persons — the im-
mediate parties to an instrument. See Paes,
of intention, where the consequences do not necessa-
rily follow the act. Thus, where one voluntarily points Inter, etc.
a loaded pistol at a vital part, the law declares that Inter rusticos. Among the unlearned.
the natural, inevitable consequence of that act is to Inter se, or sese. Between themselves.
kill, provided the pistol be fired; and the individual Inter vivos. Between living persons.
cannot be heard to say that he had no intent to kill.
So, when a debtor procures his property to be taken See Gift.
on legal process, the effect being to defeat or delay IWTERCOMMON. See Common, Right
the operation of a bankrupt act, he is held to have in- of.
tended that effect." The intention is the turning point INTEECOXJIISE. Between nations and
in an issue to decide whether a judgment against an in-
the States, see Commerce. Between persons,
solvent was obtained with a view to give a preference.'
Persons of sound mind and discretion are under- see Access ; Cohabit.
stood to intend, in the ordinary transactions of life, rNTEEESSE. L. To be of interest to :
that which is the necessary and unavoidable conse- interest. See Interest, 1.
quences of their acts, as they are supposed to know Interesse termini. Interest in a term.
what the consequences of their acts will be in such
" A bare lease does not vest any estate in the lessee,
transactions. This rule applies in civil and criminal
but only gives a right of entry, which right is his in-
cases. Exceptions may arise; as, where the conse-
quences likely to flow from the act are not matters terest in the term, or interesse termini." '
The right to the possession of a term at a future
of common knowledge, or where the act or the conse- time.' See Terminus, 2.
quence isattended by circumstances tending to rebut
the ordinary probative force of the act or to exculpate Pro interesse suo. To the extent of his
the intent of the agent — as, that the holder of a interest.
warrant to confess judgment could enter judgment to A party may intervene in litigation instituted by
get a preference.' See further Oonsequences. others, pro interesse suoJ
Intention is gathered from all the things done, said, INTEREST. I. Lat. It interests, con-
written; in ordinary documents, any words express- cerns, isof importance to.
ing it may be used. In wills it is " the pole-star of in- Interest reipiiblicae ut sit flnis litium.
terpretation," when no rule of law is violated. In
construing writings generally, the courts strive after It concerns the commonwealth that there be
the intention, putting themselves in the place of the an end to lawsuits. The general welfare re-
party or parties.'
quires that litigation be not interminable.
See Abandon; Contkact; Domicil; Grant; Iqno- No maxim is more firmly established or of more
banoe; Statute; WhIj.
value in the administration of justice. It prevents re-
1 4 Bl. Com. 221. peated litigation between the same parties in regard
s 2 Pars. Contr. 772. to the same subject.'
= United States v. Taintor, 11 Blatch. 378 (1873). It prevents multiplicity of suits."
* 1 Greenl. Ev. § 34. In it originates the rule against circuity of action;
» Reynolds v. United States, 98 U. S. 167 (1878).
' 2 Bl. Com. 144, 314.
« Be Bininger, 7 Blatch! 268, 277 (1870), cases.
' Little V. Alexander, 21 Wall. BOO (1874). a 4 Kent, 106; 72 Mo. 542.
3 106U. S. B65.
'Clarion Bank v. Jones, 21 Wall. 337 (1874), Clifford,
-Justice. 'United States v. Throckmorton, 98 U. S. 65 (1878);
•1 Greenl. Ev. §§ 287-89. As to presumptions, see MUes V. Caldwell, 2 Wall. 39 (1864); 3 Bl. Com. 308.
30 Alb. Law J. 66-70 (1884), cases; evidence of, 22 Cent. J Stark V. Starr, 94 U. S. 485 (1876); 71 Pa. 177; 2 Pars.
Law J. 271 (1880), oases.
Contr. 620.
(36)
 INTEEEST 563 INTEREST

and it states the principle upon whioli rest statutes of right, in the nature of property, less than
setrofl and of limitations.
For this reason, the prevention of litigation is a
title ; title to a share.'
Spoken of as present or vested, contingent or
valid consideration,'
future, chattel or landed, beneficial, reversionary, un-
For this reason, also, but one action lies for aU the divided, legal, equitable, etc.
articles converted by one aot,^
The quantum depends upon the title in the pos-
It is the policy of the law to settle in one suit the
sessor. As respects realty, this may be freehold or
interests, of all parties in the subject-matter, leaving less; as respects chattels, it is Joint, — shared with
as little room as possible for multiplicity of actions.' other persons; or several or sole, — possessed by on©
3. Eng. (1) Concern, advantage, good; person exclusively, or by more than one, their inter-
share, portion, part, participation.* ests then not being in common.
Concern, advantage, benefit. Such rela- The chief use of the word is to designate some
tion to the matter in issue as creates a liabil- right which cannot or need not be defined with precis-
ion. In some connections it includes title; in others,
ity to pecuniary gain or loss from the event advantages less than title. Sometimes it is added to
of the suit.5 Opposed, disinterest. words of more definite meaning by way of precaution
In this sense a witness is said to be incompetent, that no conceivable claim shall be omitted; sometimes
and a judge or juror disqualified, from interest. it signifies an undefined share.' Compare Claiu; De-
At common law, a party could testify for himself mans.
only when he alone knew the matter to be proved.
Community of interest. See Commu-
This was to prevent absolute failure of justice, where nity, 1.
his right to relief was shown by other evidence.*
An interest disqualifying a witness, at common Coupled with an interest. Said of an
law, must be legal, real, substantial, present, certain, agency in which the agent has a business in-
vested, and ex parte. Interest in the question is not terest, along with his principal.
meant, nor inclination arising from relationship, A power coupled with an interest is where
friendship, or other motive.
The meaning is that parties legally interested in the grantee has an interest in the estate as
the result are incompetent. This interest is to be real, well as in the exercise of the power.
not merely apprehended, and in the event of the cause. It is deteiTQined to exist or not according as the
The true test regards gain or loss by the judgment. agent is found to have such estate or not before the
The degree is not regarded. A remote, contingent, execution of the power. If his interest is only a right
uncertain interest does not disqualify. One may testify to share the proceeds which result from the execution
against his interest ; and an offer to release an interest of the power, he has no such power. 2
Such a power survives the person giving it, and may
qualifies.' ' Equal interest on both sides does not dis- be executed after his death. This refers to an interest
qualify. Objection for interest must be made before
examination. Precisely what interest disqualifies is in the thing itself, a power which accompanies, or is
largely a question for the court. ^ connected with, an interest.'
But the common-law rule has been generally abro- Equitable interest. Such interest as is
gated. The effect of interest upon credibility is now cognizable in a court of equity. Iiegal in-
left to the jury to determine.' See further Pabtt, 8; terest. An interest cognizable in a court of
Witness.
common law.
(2) Right of property in a thing. Immediate interest. See Immediate.
May denote the property itself, objectively
considered.9 Interest or no interest. Refers to g.
policy of insurance which is to be valid
A claim to advantage or benefit; any whether the insured has or does not have an
' 1 Pars. Contr. 438; Smith, Contr. 179.
insurable interest,* q. v.
" Phillips V. Berick, 16 Johns. 140 (1819). See also 105
111. 108. Opposing interest. At the meeting of the cred-
itors of a bankrupt to elect an assignee, if no choice
■ Eckford v. Knox, 67 Tex. 205 (1886); 8 Kan. Law J.
880 (1885); 6 Tex. 446; 30 F. E. 911; 41 N. J. E. 443; 7 was made, the judge, or, if there was " no opposing
Mass. 432; 99 id. 203; 4 Allen, 473; 16 .Gray, 87; 5 id. interest," the register, appointed a person. This
197; 1 id. 303; 24 Pick. 61; 22 id. 83; 21 id. 263; 20 id. 290; meant, not merely an interest contending by vote for
15!U 286. the election of a particular person, but an interest in
' Fitch V. Bates, 11 Barb. 473 (1851).
' Bouvier, Law Diet. ; Inhabitants of Northampton ' [Abbott's Law Diet.
V. Smith, 11 Mete. 394-96 (1846), oases, Shaw, C. J. = Flanagan v. Brown, 70 Cal. 259 (1886); Brown v.
•United States v. Clark, 96 U. S. 41 (1877); 3 Bl. Com. Pforr, 38 id. 550 (1869); Hartley's Appeal, 53 Pa. 218
370;,lGreenl. Ev. §.348. (1866); Frink v. Eoe, 70 Cal. 310 (1886).
' 1 Greenl. Bv. §§ 386-430, oases. ' Hunt V. Eousmanier, 8 Wheat. 203 (1823), Marshall,
s 1 Whart. Ev. § 419; 30 Hun, B57; 63 Pa. 156; 64 id. 89; C. J.; Walker v. Walker, 125 U. S. 343 (1888); 59 Tex.
65ici. 126; 38 Tex. 141. 399.
» Pierce v. Pierce, 14 E. L 617 (1884). j ♦ See 2 Bl. Com. 460.
 INTEREST 563 INTERFERENCE

opposition to the power of appointment by the reg- a prescribed rate per annum, such interest
ister.' does not become due or payable before the
(3) Increase by way of compensation for principal, unless there is a special provision
the use of money ; price or reward for the
to that effect.i
loan of money ; a premium for the hire of The rate, or sum, depends upon the usual or gen-
money ; a reasonable equivalent for the tem- eral inconvenience of parting with the loan, and the
porary inconvenience the lender of money hazard of losing it entirely. Where the hazard is
peculiarly great, as in contracts of bottomry and re-
may feel by the want of it.^
spondentia, policies of insurance, and annuities upon
Compensation allowed by law, or fixed by lives, the rates are high. Charging an exorbitant rate,
the parties, for the use or forbearance of in an ordinary case, is usury,' q. v.
money, or as damages for it detention.' As compensation for the use or detention of money,
A compensation for the loan or use of has its origin in the usages of trade, by contract, or
by statute. Hence, the rules in regard tu it are as di-
money.* versified asthe trade, habits of the people, and their
The measure of damages for money with- peculiar laws may be.^
held upon contract, s Spoken of as lawful or legal, and unlawful or illegal,
Though interest, eo nomine, may be a creation of excessive or usurious, as marine or maritime, etc.
statute law, it is allowed as mulct or punishment for Follows the principal as an incident.
some fraud, delinquency, or injustice of the debtor, or Not chargeable upon claims against the assets of
from some injury done by him to the creditor.* an insolvent from the date of the assignment, or
Simple interest. Interest computed against the estate of a decedent from the day of
death; nor upon an advancement; nor upon costs.
solely upon the principal of the loan. Com- Where not stipulated as part of a contract, given as
poiind interest. Is reckoned upon the damages for detaining money, property, or services,
principal for the first period, and thereafter and from the day of default.*
upon both principal and accrued interest; In torts, allowance as damages rests in the discre-
interest upon interest. tion of the jury. Has been allowed upon money ob-
" Compound interest " signifies the adding of the tained by fraud or detained by an officer.*
The practice of the treasury department of the
growing interest of any sum to the sum itself, and
United States has always been not to pay interest
then the taking of interest upon this accumulation.'
upon claims against the government, without express
At interest. In ordinary parlance statutory authorization; and Congress has repeatedly
"money at interest " refers more to money refused to pass any general law for the allowance of
loaned than to interest-bearing notes and ac-
interest.'
Compound interest is riot recoverable, imless there
counts received for property sold. 8
Ex-interest. Said of a sale of stocks or has been a settlement, or a judgment whereby the ag-
gregate amount of principal and interest due is turned
bonds without interest already or soon pay- into a new principal; or where there is a specific
able. See Ex, 3.
With interest. When a note is made agreement
If interestto upon
do so.'interest were allowed in all cases,
debts would increase beyond all ordinary calculation
payable at a future day, " with interest " at and endurance; common business could not stand the
overwhelming accumulafriofi.*
I R. S. § 5084; Be Jaclison, 7 Biss. 287 (1876). See Bonus; Coupon, Bond; Damages; Deposit, 2;
' [2 Bl. Com. 454. Discount, 2; War.
' Brown v. Hiatts, 15 Wall. 185 (1872), Field, J. ; In-
surance Co. V. Piaggio, 16 id. 386 (1872), cases; Aurora
rNTERFEBENCE. Is used in the Re-
vised Statutes prescribing proceedings when
City V. West, 7 id. 105 (1868), cases; Eedfleld v. Ystaly-
fera Iron Co., 110 U. S. 176 (1884); 12 F. R. 864; 2 an Application is made for a patent which
McCrary, 394; 8 Saw. 189.
' Turner v. Turner, 80 Va. 381 (1885). 1 Tanner v. Dundee Land Investment Co., 12 P. B.
o Loudon V. Taxing District, 104 17. B. 774 (1881). See
also 2 Cal. 568; 28 Conn. 20; 42 id. 628; 3 Dak. 460; 66 » 2 Bl. Com. 454.
6a. 501; 3 N. Y. 355; 87 id. 437; 13 Barb. 76; 30 Pa. 341; » Stokely v. Thompson, 34 Pa. 211 (1869).
34 id. 211. < United States v. HUls, 4 dm. 621-22 (1878), cases.
•Rensselaer Glass Factory v. Reld, 5 Cow. 609-18 • Lincoki v. Claflin, 7 Wall. 139 (1868); Frazer v.
(1825), cases; Heidenheuner v. Ellis, 67 Tex. 438 (1887), Bigelow Carpet Co., 141 Mass. 127-28 (1886), cases.
cases. • Angarica v. Bayard, 127 U. S. 260 (1888), cases.
'Campu Bates, 11 Conn. 501 (1836); Koshkonong v. ' Stokely v. Thompson, Camp v. Bates, sy,pra.
Burton, 104 U. S. 677 (1881), cases; 105 HI. 558; 34 Pa. 6 Connecticut v. Jackson, 1 Johns. Ch. •14 (1814),
212.
Kent, Ch. See generally Selleck v. French, 1 Conn.
« Wasson V. First Nat. Bank of Indianapolis, 107 33(1814): 1 Am. L. C. 500-35, cases; 25 Cent. La«f J.
Ind. 212 (1886). 293 (1887), cases.
 564
INTERIM INTERPRETATION

may interfere with a pending application or INTERNUNCIO. See Ministee, 3.

with an unexpired patent.! gge. Patent, 2, INTERPLEAD. To become parties liti-
INTEKIM. L. Inter ipsum (tempus), gant; to determine a dispute by judicial
action.
within that time: in the meantime, mean-
while ;provisjionally. Interpleader; bill of interpleader.
Ad interim. For the time intervening. Where a person, who owes a debt to one of
Interim eommittitur. In the mean- the parties in a suit, but, till the determina-
time, let him be committed; meanwhile be tion of it, he knows not to which one, desires
will be kept in prison. that they may interplead, that he may be
Abridged to "inter, com.," has been used for the protected in making the payment.'
docket entry in cases "where, until some fiui;her action The stakeholder prays that the court judge between
can be taken or proceeding be had, a prisoner is re- the claimants, to whom the thing belongs, and that he
manded to jail ; as, in a case of conviction for murder, be indemnified. He alleges that the persons have pre-
when sentence of death is pronounced, to be carried ferred a claim against him, and for the same thing,
into execution at a distant day. that he has no beneficial interest in the matter, and that
Interim ofBlcer. One appointed when he cannot determine, without hazard, to which of them
another, the principal, is absent, is incapable the thing or right belongs.^
of acting, or has not yet been chosen or fully The plaintiff must have no interest in the thing, no
adequate remedy at law, and be ignorant of the rights
qualified. of the claimants.^ ,
Sometimes termed the ad interim officer. Such is If the thing claimed is a sum of money, the holder
a provisional assignee, trustee, curator, guardian.
Interim order. An order taking effect may pay it into court.
The bill will not lie if the complainant sets up an
provisionally, or until further direction; in interest in the subject-matter of the suit, and the re-
particular, an order made pending an appeal. lief sought relates to that interest. The relief sought,
in a bill in the nature of a bill of interpleader, must
laterim receipt. A deposit or protec-
tion receipt for money paid on a proposed be equitable.* i
In cases of adverse independent legal titles, the
contract of insurance; also, ad interim re- party holding the property must defend himself as
ceipt. well as he can at law.**
Holds the applicant/secure until his proposal is ac- INTERPRETATIO. L. Expounding,
cepted or rejected. If the risk is not approved, the explanation : construction, interpretation,
money is returned, less the premium for the time
b^ing.^ Ex antecedentitaus et consequent-
INTERLINEATION, See Alteration,
2; Blank, 2. ibus, fit optima interpretatio. From
q. V. things go before and come after, the
what
INTEIILOCUTOBY.3 Intervening —
best explanation is had. A doubtful word
happening, accruing, or imposed between the
commencement and the termination of pro- or passage may be best understood by refer-
ence to the whole instrument — deed, will,
ceedings —during the progress of an action at
contract, statute. Intention may be read in
law or of a suit in equity : as, interlocutory —
costs, decree, judgment, order, report, qq. v. the light of surrounding circumstances.^
Compare NosciTUE, A sociis.
Compare Final.
rNTEBMAERIAGE. See Maekiage. INTERPRETATION. Is used inter-
INTERMIXTtrRE. See Accession. changeably with " construction." Opposed,
misinterpretation.
INTERN.* To imprison by restricting to
a limited territory: as, to intern a political The act of finding out the true sense of
prisoner within a city or upon an island. any form of words, that is, the sense their
INTERNAL. See iMEBOYHaviENT ; Rev- > [3 Bl. Com. 448.
enue;. = Atkinson v. Marks, 1 Cow. 703 (1883).
INTERNATIONAL. See Exteadition ; s Howe Machine Co. v. GifEord, 66 Barb. B99 (1872).
See also 2 Paige, Ch. 800; 8 Story, Eq. Oh. XX.
Law; Nation. * Killian v. Ebbinghaus, 110 U. S. 571 (1884), cases.
" )i Story, Eq, S 820; Third Nat. Bank v. Lumber Co.,
> See E. S. § 4904; Gold Separating Co. v. Disintegrat- 138 Mass. 410 (1888), cases. See generally McMunn v.
ing Co., 6 Blatch. 310 (1889). Carpthers, 4 Clarke, Pa., 134r^6 (1848); 8 Pomeroy, Eq.
^SeeMay, Ins. |§ 57-59.
«L. inter-loqui, to speak in between. §§ »1319-89.
2 Bl. Com. 379; 1 Greenl. Ey. §§ 201, 437; 71 Pa. 301;
'L. internus; intra, within. 76Va. 714.
 INTERPRETER 565 INTOXICATE

author intended ; and of enabling others to Intervention. The act or proceeding by

derive from them the same idea.i which one, on his own motion, becomes a
Properly precedes construction, but does not go be- party to a suit pending between others : as,
yond the written text." See furtlier Constbdotioh; in a case in equity or in admiralty. Opposed,
Ikterpretatio.
non-intervention.
INTERPRETER. One who translates
INTESTATE. 1, adj. Without a will;
the testimony of witnesses speaking a foreign
the status of a person who dies without hav-
tongue, for the benefit of the court and jury.
His re-statement is not hearsay; it may he im- ing disposed of his property by means of a
peached for inacciu-acy.^ will, and the condition in which the property
INTERROGATORY. One of a series itself stands before the law : as, intestate —
or set of written questions prepared by coun- estate, property, laws. Opposed, testate.
sel for the examination of a party to a suit in 2, n. A person who has died without leav-
equity. ing a valid will : as, an intestate, an intes-
A formal question, in writing, for the tate's estate or property, i Opposed, testator.
judicial examination of a party or a witness.* Intestacy. Dying without a will ; the
Direct or original interrogatory. An state or condition of one who dies without
interrogatory exhibited by the party who having made a valid testamentary disposi-
calls a witness in the first instance. Counter tion of his property. Opposed, testacy.
or cross interrogatory: is exhibited by the Intestable, Without capacity to make a
adverse party. valid will ; also, incapable of transfer by will.
Pishing interrogatory. Inquries after Opposed, testable. See further Testacy;
a matter as to wliioh proponent has no right Distribution, 2; Descent.
to a discovery. INTIMATE. Compare Acquainted.
Suggestive interrogatory. Indicates That a man has been " intimate " with another's
the answer desired. wife, does not of necessity import criminalty."
Interrogatories accompany bills in the nature of INTIMEDATION. See Boycottins;
discovery, proceedings for contempt, attachment in Duress ; Ejection, 1 ; Fear ; Strike, 2.
execution against garnishees, commissions to take tes- INTOXICATE. To become inebriated
timony out of court. They are subject to the same
rules as examinations in court.' or drunk.s
See Chancery, Bill in; Deposition; Discovert, 6; Intoxicated. Drunk, from use of spirit-
Examination, 9; Question, 1.
uous liquor.*any other idea is intended other words
Whenever
INTiJRSECT. Ordinarily, to cross.6
are used; as, in saying that a person is intoxicated or
A railroad which runs along a turnpike so as to re-
quire a change in the traveled path, does not intersect drunk with opium, ether, or laughing gas.*
the turnpike. • Intoxicating liquor. "Intoxicating
Beads intersect at their middle lines.'
liquors or mixtures thereof" are liquors
INTER-STATE. See Commerce; Ex- which will intoxicate and which are com-
TKADiTioN, 2 ; State, 3 (3). monly used as beverages for such purpose ;
INTERVAL. See Lucid Interval. also, any mixture of such liquors as, retain-
INTERVENE.8 To file a claim or a de- ing their intoxicating qualities, it may fairly
fense in a suit instituted by or against others. be presumed may be used as a beverage and
Intervener; intervener. One who ap- become a substitute for the ordinai-y intoxi-
plies to be heard as an original party in an-
In thecating driiiks.5 of evidence to the contrary, beer
absence
other's suit, he being interested in the result
of the suit. will always be presumed to be an intoxicating liquor.*
But "intoxicating" and "spirituous" not being

> Lieber, Herm. 23; 14 How. Pr. 272; 36 N. J. L. 209; ' See 2 Bl. Com. 204.
1 Bi; Com. 59. = Adams v. Stone, 131 Mass. 433 (1881).
' 2 Pars. Contr., 7 ed., 491 (a). ' Mullinix v. People, 76 111. 213 (1875).
'1 Whart. Ev. §493. < State V. Kelley, 47 Vt. 296 (1876).
<See 3B1. Com. 4-38; 4 id. 287; 5 N. J. L. 773. ' Intoxicating-Liquor Cases, 25 Kan. 767 (1881),
» See BisohoSEsheim v. Baltzer, 20 Blatch. 231 (1882). Brewer, J.; State «. McGinnis, -30 Minn. 52 (1882).
• State V. New Haven, &c. E. Co., 45 Conn. 344 (1877). •State V. Teissedre, 30 Kan. 484 (1883); Briffltt v.
' Springfield Eoad, 73 Pa. 129 (1873); 74 id. 259. State, 58 Wis. 41(1883), cases; 6 Kan. 371; 16 Mo. 389;
• L. inter-venire^ to come in between. 14 Ohio, 586; 12 Gray, 29; 63 N. Y. 277; 11 E. I. 592.
 INTRA 566 INVENTION

synonymous, an indictment for unlawful sales of The applicant for a patent must be the first as well
*' spirituous and intoxicating " liquors is not supported as the original inventor; and a subsequent invMitor,
'by proof of sales of liquors which are intoxicating but although an original inventor, is not entitled to a
aiot spirituous. 1 patent, if the invention is perfected and put into actual
See further Condition; Drunkenness; Liqdob; Pol- use by the first and original inventor. Until an inven-
icy, Public.
tion is perfected and adapted to use, it is not patent-
INTRA. See Infea; Ultra. able. An invention resting in mere theory, or in
HfTRINSIC. See Value. ^intellectual iiotion, or in uncertain experiments, and'
not actually reduced to practice and embodied in
rNTKOMISSIOM". Dealings in stock, some distinct machinery, apparatus, manufacture, or
goods, or cash of a principal, coming into the
composition of matter, is not patentable. ^
hands of his agent, to be accounted for by The patent law requires a thing to be new aswelLas
the agent. 2 useful. To be new, it must be the product of original
INTRTJDEB.. A person who enters upon thought or inventive skill, and not a mere formal and
mechanical change of what was old and well-known.
land when he has no right. ^ Compare But the effect produced by change is often an appro-
Squatter. See Land, Public. priate, though not a controlling, consideration in de-
Intrusion. Injury by ouster, or amotion termining the character of the change itself. ^
of possession from the freehold : the entry of Merely turning down and cementing the edges of
celluloid collars in the form of a hem is not invention.^
a stranger, after a particular estate of free-
It is becoming more and more difficult to distin-
hold is determined, before him in remainder guish between skill and invention. As the standard of
or reversion.* skill in mechanics is raised, the standard of invention
INUITDATION. See Act, 1, Of God; is also raised.*
Watercourse. Useful invention. Such invention as
INUBE.s To serve to the use, benefit, or may be applied to some beneficial use in so-
advantage of some one ; to take or have ef- ciety, in contradistinction to an invention
fect to
; operate. which is injurious to the morals, the health,
As, that discharge of the principal inures to the or the good order of society.'
benefit of the surety; that conflripation of a title in- All improvement is not invention ; to en-
uresitothe grantee; that a grant by the state inures
title itto protection it must be the product of
to the'intent expressed.* some exercise of the inventive faculties, and
Inurement. Use, user, usage.
Passage of title by inurement and estoppel is the involve something more than what is obvious
work of the common law and legislation.' to persons skilled in the art.6
HfVALID, adj. See Valid. The improvement must be distinct from the con-
rsrVALID, 11. See Witness. ception which originated the original article or prod-
uct. A mere carrying forward or new or more
INVASION". See War. extended application of the original thought, a change
INVEIGtLE. See Kidnaping; Persuade. only in form, proportion, or degree, the substitution
INVENTION.a Finding out, by some of equivalents, doing substantially the same thing in
the same way by substantially the same means with
effort of the understanding ; not merely put- better results, is not such invention as will sustain a
ting two things together, although never
done before. 9
The process of thought and experiment by patent.'
1 Eeed v. Cutter, 1 Story, 596, 599 (1841), Story, J.
which some new machline, composition, de- 2 The Stanley Works v. Sargent & Co., 8 Blatch. 346
sign, impravement or other article or thing (1871), Shipman, J. See also Smith v. Goodyear Co., 93
is brought into existence; also, the thing U. S. 495 (1876); "Washburn & Moen Manuf. Co. v.
Haish, 10 Hiss. 72-75 (1880); Western Electric Light Co.
itself thus produced. V. Chicago Electric Light Manuf. Co., 11 id. 427 (1883);
1 Commonwealth v. Livermore, 4 Gray, 20 (1865). Gardner v. Herz, 118 U. S. 180 (1886), cases, Blatchford,
2 Stewart v. M'Kean, 89 E. L. & Eq. 391 (1855), Alder- J. ; Pomace Holder Co v. Ferguson, 119 id. 338 (1886),
son, B. cases.
s [O'Donnell v. Mclntj're, 16 Abb. N. Cas. 88 (1886). R. ' 617
Celluloid
(1887). Manuf. Co."'!). Zylonite Novelty Co., 30 P.
<3B1. Com. 169; 9111.170.
5 L. in ure, in operation, work, use. Preferred to * Wilcox V. Bookwalter, 31 P. R. 229 (1887).
enure. = Bedford v. Hunt, 1 Mas. 303 (1817), Story, J. ; 18 Wis.
» See 2 Bl. Com. .347. 442; 13N. H. 318. .
' Dickerson v. Colgrove, lOO U. S. B83, 584 (1879). "> Pearce v. Mulford, 102 U. S. 118 (1880), Strong,. J.
^ F. inventer, to devise; L. in venire, to come upon, ' Smith V. Nichols, 31 Wall. 119 (1874), Swayne, J. See
find out. also Stephenson v. Brooklyn E. Co., 114 U. S. 154 (1885),
» Earle v. Sawyer, 4 Mas. 5 (1835), Story, J.
 INVENTORY 567
INVESTIGATION

Inventor. He who originally contrives To place money so that it will yield a

or devises a new article or thing. profit; as commonly undei-stood, to give
Inventors "are a meritorious class generally, and money for other property, i
' favored in law. i Acts intended to determine the value, Includes, but is not restricted to, " loan." '
utility, or success of an invention are liberally con- Does not universally import preservation or a per-
strued." But inventoi-s must comply with statutoiy manent keeping for the purpose of collecting income.
conditions. They cannot, without cause, hold an ap-
" It is not uncommon to have it said that the best in-
plication pending more than two years.^
vestment of money is in paying debts." "
Exact description is requisite: that the government
may know what it has granted, and what will become
Invested. A sum represented by any-
public property when the patent expires; that licen- thing but money is invested.*
sees may know how to use the invention; and that Money loaned is invested in a debt against the bor-
subsequent inventors may know what portion of the rower, regardless of the evidence.'
field has been occupied.* Investment. Laying out money in such
While an agreement to assign in gross a man's manner that it may produce a revenue,
future labors does not address itself favorably to the whether the particular method be a loan or
courts, an inventor may dispose of his invention and
bind himself to assign to the purchaser any improve-
the purchase of stocks, securities, or other
ments he may thereafter make; and a pecuniary in- property. In common parlance, putting out
terest in the sale of the patent does not seem to be money on interest, either by way of loan or
necessary to the validity of such a bargain.* by the purchase of income-producing prop-
See further Okiginalitt; Patent, 2; Telephone
Case; Use, 2, Useful.
An investment of money in the business of another
nrVElTTORY.s A list or schedule of is moreerty. •> than a loan: it is a contribution to the capital.'
articles of property. Neglect by a trustee to invest moneys in his bands is
A list or schedule, or enumeration of the a breach of trust, and ground for removal.^
articles of property, setting out the names of The rule is everywhere recognized that a trustee,
when investing property in his hands, is bound to act
the different articles, either singly or in honestly and faithfully, and to exercise a sound dis-
classes.^ cretion, such as men of ordinary prudence and intel-
Accounts of the items of property levied upon are ligence use in their own affairs. In some jurisdictions,
called inventories; and insolvents file inventories of no attempt has been made to establish a more definite
assets. ^ more common use is in the administra- rule; in others, the discretion has been confined, by
tion of the estates of decedents. The representative, the legislature or the courts, within strict limits."
at the outset, files an inventory of the assets. This is
INVESTIGATION. Inquiry by obser-
made by two or more fair-minded persons as sworn
appraisers. The representative is then charged with vation, experiment, or discussion. W
the amount of the inventory. Articles not converted The Penal Code of New York, § 79, makes it com-
pulsory upon persons concerned in bribery to testify
into money, and disbursements, may afterward be al-
lowed as credits. The inventory exhibits to creditors, "upon any trial ... or investigation" thereof,
legatees, and distributees, the nature and amount of their testimony not to be used against them in any
the estate. subsequent proceeding. This, does not refer to an
The inventory made by a landlord who distrains for " investigation " in the course of a criminal prosecu-
rent should be full enough to inform the tenant of the tion, but to any inquiry in the conduct of which per-
sons may be called by authority to testify, and hence
articles distrained, for which he may have a writ of
includes an inquiry directed by the legislature, and
replevin.^
INVENTUS. See Find, 3. conducted by any of its committees.^*
INVEST. 1. To clothe with power or > Neel v. Beach, 98 Pa. S26 0879).
authority. See Vest. 'Shoemaker v. Smith, 87 Ind. 127 (1871).
2. In common parlance, to put out money ' New England Life Ins. Co. i;. Phillips, 141 Mass.
on interest. 640, 543 (1886).
< Parker Mills v. Commissioners, 23 N. T. 244 (1861).
' Wilson V. Rousseau, 4 How. 674 (1846). 'Jennings v. Davis, 31 Conn. 140 (1862). See also 2
'Jennings v. Pierce, 15 Blatch. 45-46 (1878), cases; Cow. 678; 1 Edw. 513; 10 Gill. & J. 299.
Lyman v. Maypole, 19 F. E. 735, 737-44 (1884), cases. • Una V. Dodd, 39 N. J. E. 186 (1884), Van Fleet, V. C.
' Planing-Machine Co. v. Keith, 101 U. S. 485 (1879). See also People v. Utica Ins. Co., 15 Johns. '392 (1818).
« Tucker v. Tucker Manuf. Co., 4 Cliff. 400 (1876), ' Lyon V. Ziramer, 30 F. R. 410 (1887).
Clifford, J.; Parker v. Stiles, 5 McLean, 55 (1849). 8 Cavender v. Cavender, 114 U. S. 473 (1886), cases.
'AspinwaU Manuf. Co. u. Gill, 32 F. R. 700 (1887), ' Lamar v. Micou, 112 U. S. 465-70 (1884), cases, Gray_ v
JBradley, J. J. ; New England Trust Co. v. Eaton, 140 Mass. 635
^ L. in-venire, to find. (1886), cases; 25 Am. Law Reg. 217-34 (1886), oases.
' [Silver Bow Mining Co. v. Lowry, 5 Monta. 621 (1885). 10 Wright V. Chicago, 48 111. 290 (1868).
« Richards v. McGrath, 100 Pa. 400 (1882); 59 Wis. 403. " People V. Sharp, 107 N. Y. 427 (1887).
 INVESTITURE 568 ISSUE

HTVESTITURE. A grant of land in Ipso facto. By the rnere fact.

feudal ages was perfected by the ceremony Ipso jure. By the law itself.
of corporal investiture: open and notorious IRON CLAD OATH. See Oath, Of
delivery of possesion in the presence of other ofSce.
vassals. IRREGULAR. See Erroneous; Reg-
Made by putting a vestis, a robe, upon the tenant. ular.
Perpetuated memory of tbe transaction at a time wben IRRELEVANT. See Relevant.
writing was little known.' See Delivery, 1. IRREPARABLE. See Injury.
INVIOLABLE. See Impair.
IRRESISTIBLE. See Accident ; Force.
INVIOLATE. See Jury, Trial by.
IRRESPONSIBLE. See Responsible.
INVITATION. See Negligence.
IRREVOCABLE. See Revoke.
INVITUS. L. Against the will; unwill- IRRIGATION. See Aqua, Currit, etc. ;
ing.
Riparian.
Ab invito. From an unwilling person. IS. L. That one ; he.
In invito. Against a resisting party. Inflections : id, ei, ejus, eo, qq. v.
Frequently applied to proceedings against a party
who opposes the demand made upon him, and also to ISSINT.i Introduced a statement that
the judgment or decree made in such case. Taxes are
said to be levied in invitum. special matter amounted to a denial — " the
Invito domino. The owner being un- general issue with See
ISSUABLE. an issint."
Issue, 3.^
willing.
IS SUE. 3 1, V. To send out: as, to issue
Said of the " taking " in larceny. a writ or process.
INVOICE.2 A document transmitted
A process is " issued " when made out and placed
from the shipper to his factor or consignee, in the hands of a person authorized to serve it, with a
containing the particulars and prices of the bona fide intent to have it served.*
goods shipped.' n. A causing to gO forth: as, the issue of
A written account of the particulars of an order or writ, the issue of letters patent or
merchandise shipped to a purchaser, factor letters testamentary. Compare Exire, Exit.
or consignee, with the value or prices and Re-issue; re-issued. Refer, in particu-
charges annexed.* lar, to a continuation of an original patent.
Invoice cost or price. Sometimes, the Whence re-issuable.
prime price or cost of goods, whether there Whenever a patent is inoperative or defective, by
reason of a defective or insufficient specification or
is an invoice in fact or not.' claim of more than the applicant has a right to as
An invoice is not a bill of sale, tior is it evidence of
new, if the error has arisen by inadvertence, accident,
a sale. It is a mere detailed statement of the nature,
or mistake, and without deceptive intention, the com-
quality, and cost or price of things invoiced, and is as missioner of patents, on the surrender of such patent,
appropriate to a bailment as to a sale. It does not of shall cause a new patent to issue in accordance with
itself necessarily indicate to whom the things are
Bent, or even that they have been sent at all. Hence, the corrected specification. The surrender takes ef-
fect from the issue of the amended patent, and runs
standing alone, it is never regarded as evidence of for the unexpired term of the original patent. But
title." See Book-Entries.
INVOLUNTARY. See Voluntary. new matter may not be introduced.*
The surrender of valid patents, and the granting of
IPSE. L. He himself. Jpsud, it itself ; re-issued patents thereon, with expanded or equivocal
the very same. claims, where the original was clearly neither " inoper-
Ipsissimis verbis. In tha identical ative nor invalid, "'and whose specification is neither
words. See Verbum. "defective or insufBcient," is a great abuse of , the
privilege granted, and productive of great injury to
1 3 Bl. Com. 53, 311. theA public*
re-issue must be for the same invention, and, in
' A corruption of envots, Eng. plural of F. envoi, a
Bending.
' Norm. F., thus, so.
s Le Roy v. United Ins. Co., 7 Johns. *354 (1811).
< Pipes V. Norton, 47 Miss. 76 (1872), Tarbell, J.; 16 = Gould, PI. 313; 4 Eawle, 83.
Op. Att.-Gen. 160. " F. issir; L. ex-ire, to go out.
» Sturm V. Williams, 6 Jones & S. 343 (1874); 7 Johns. * Mills V. Corbett, 8 How. Pr. (1863); Bragg V.
*354.
Thompson, 17 S. 0. 378 (188S).
' Dows V. Nat. Exch, Bank of Milwaukee, 91 U. S. 630 ' R. S. §§ 4916, 4895.
(1875), Strong, J. See 8 Wash. 134, 155; 4 Abb. Ap, • Burr V. Duryee, 1 Wall. 577 Grier, J. ; James
Dec. 78. V. Campbell, 104 U. S. 371 (1881).
 ISSUE 569 ISSUE

judgment of law, is only a continuation ot the original oflHce in taking out his re-issue, is bound by such limit-
patent.' ations in subsequent suits on the re-issued patents.'
If, on comparing a re-issue with its original, the See Patent, 2.
former appears on its face to be for a different inven-
3, V. To put Into circulation; to emit,
tion from that described or indicated in the latter, it
must be declared invalid.' q. V. : as, to issue bank notes, bonds, script.
A re-issue can only be granted for the same inven- n. All of a class or series of like securities
tion which was originally patented. If it were other- or instruments for the payment of money
wise, adoor would be opened to the admission of the put forth at one time. 2
greatest frauds. Claims and pretensions shown to be
3, n. The disputed point or question. 3
unfounded at the time, might, after the fapse of a few
years, a change of ofiScers in the patent office, the
A single, certain, and material point, aris-
death ot witnesses, and the dispersion of documents, ing out of the allegations or pleadings of the
be set up anew, and a reversal of the first decision be parties, and generally made by an afiSrmative
obtained without an appeal, and without any knowl- and a negative. <
edge of the previous investigations on the subject. When the parties come to a point which is affirmed
New light breaking in upon the patentee as the prog- on one side, and denied on the other, they are said to
ress of improvement goes on, and as other inventors be "at issue." All debate is then contracted into a
enter the field, and his monopoly becomes less and less single point, which must be determined in favor of one
necessary to the puhhc, might easily generate in his
own mind an idea that his invention was really broader of the parties.*
Issuable. Permitting an issue to be
than had been set forth in the specification of his pat-
ent. It is easy to see how such new light would natu- framed : as, issuable matter, or plea ; to plead
issuably.
rally be reflected in a re-issue of the patent, and how
unjust it might be to third parties who had kept pace Issue, exitus, is the end of all pleadings. It is upon
with the march of improvement.^ a matter of law or of fact. An issue upon a matter of
By a curious misapplication of the law it has come law is called a demurrer, q. v. An issue of fact is
to be principally resorted to for the purpose of enlarg- where the fact only, and not the law, is disputed.*
ing and expanding patent claims. And the evils which When either side denies the facts pleaded by his an-
have grown from the practice have assumed large tagonist, he usually "tenders an issue." If the denial
proportions. Patents have been so expanded and comes from the defendant, the form is "And of this
idealized, years after their first issue, that thousands he puts himself upon the coimtry ; " if from the plaint-
of mechanics and manufacturers, who had just reason iff, the form is " And this he prays may be inquired of
to suppose that the field of action was open, have been by the country " — a jury. Thereupon the other party
obliged to discontinue their employments, or to pay subjoins " And the said A does the like." Which done,
an enormous tax for continuing them.* the issue is said to be " joined," both parties agreeing
The patentee has no rights except such as grow out to rest the fate of the cause upon the truth ot the fact
of the re-issued patent. No damages can be recovered
for any acts of infringement committed prior to the in Thus
question.'
also in equity, the plaintiff may aver, in reply,
re-issue. The reason is, the original patent, which is that his bill is true, certain, and sufficient, and defend-
surrendered, becomes extinguished by a re-issue.* ant's answer the reverse, which he is ready to prove as
Whether there was an " inadvertent " mistake in the coiu:t shall award; upon which the defendant re-
the specification, is, in general, a matter of fact for the
joins, averring the like on his side.*
commissioner of patents to decide ; but whether the Collateral issue. An issue upon an in-
application for re-issue is made within a reasonable
time is a matter of law, which the courts may deter- cidental matter.^
mine by comparing the re-issued patent with the orig-
Feigned issue. As no jury is summoned
inal, and, if necessary, with the records in the patent to attend a court of equity, a matter of fact,
office when presented by the record." strongly controverted, is directed to be tried
A patentee who imposes words of limitation upon
his claim, especially so when required by the patent
at the bar of a court of law, upon a " feigned "
issue. This is an action wherein the plaint-
' Read v. Bowman, 2 Wall. 604 (1804), Clifford, J.
' Ball V. Langles, 102 U. S. 130 (1880), cases. Strong, J. ' Crawford v. Heysinger, 123 U. S. 606 (1887), cases,
'Swain Turbine & Manuf. Co. v. Ladd, 102 U. S. 413 Blatchford, J.
(1880), Bradley, J. ; Parker & Whipple Co. v. Yale Lock ' See 8 Mich. 104; 2 McQrary, 449; 17 Barb. 341.
Co., 123 id. 87, 97 (1887). ' Seller v. Jenkins, 97Ind. 438 (1884).
' Miller v. Bridgeport Brass Co., 104 U. S. 353 (1881), <SimontonD. Winter, 5 Pet. »149(1831); Gould, PI.
Bradley, J. 279.
» Peck V. Collins, 103 TJ. S. 664 (1880), Bradley, J. See * 3 Bl. Com. 313. See 2 Ark. 104; 30 Conn. 488; 55 Ga.
also ib. 791; Heald v. Rice, 104 id. 749 (1881); Wing v. 61 ; 9 Gill, 268; 2 N. J. E. 157; 51 Wis. 77.
Anthony, 106 id. 147 (1882); Moffltt v. Rogers, i6. 423, •3 Bl. Com. 314-15; 2 N. J. E. 157; 51 Wis. 76.
428 (1882), cases; 18 Blatch. 534; 17 F. R. 235. '3 Bl. Com. 313, 315; 67 N. H. 164.
"Mahn v. Harwood, 112 U. S. 3S9-60 (1884), cases, 6 3 Bl. Com. 448.
Bradley, J. ; Hoskin v. Fisher, 125 id. 223 (1888), cases. » See 4 Bl. Com. 396.
 570
ISSUE ITINERANir

iff, by a fiction, declares that he laid a wager and which the defendant controverts by Ms
with the defendant, and then re-avers the
truth of the fact, and therefore demands the pleadings. I
4, n. Issues: rents and larofits of realty:
amount of the wager. The defendant admits as, in the expressioh, "rents, issues, and
the wager, but denies the truth of the fact;
whereupon the issue is joined, which is di- 5, n. Heirs of the body; all ones lineal
rected to be tried out of chancei'y. This is- profits." 2 indefinitely: as, in the expres-
descendants
sue is also used in the courts of law by con- sions, issue of body, failure of issue, die with-
sent, to determine some disputed right with-
out the formality of pleading, and to save In out
wills issue.3and• deeds of settlement, while " issue " is
time and expense, i construed to include grandchildren, "child "or "chil-
A frequent use is in tiie trial of issues devisa/vU vet dren "is notj unless a contrary intent is clear.*
"Issue ''•necessarily includes children; but "chil-
non, q. v. '
A feigned issue is a mode of procedure adopted dren "does not include more remote issue.*
from the civil law by courts of law as well as <;ourts of In a will, " issue " means, prima facie, the same as
«quity as a means of having some question of fact "heirs of the body," and in general is to be construed
as a word of limitation. But this construction will
arising incidentally, and to be made the foundation of
an order or decree, determined by the verdict of a give way if there be on the face of the instrument suf-
ficient to show that the word was intended to have les»
jury. It is called a "feigned" issue for the reason extended meaning, and to be applied only to children
that its object is not the establishment of a legal right
on which a judgment shall regularly follow, but the or to descendents of a particular class or at a particu-
-ascertainment by a formal issue of some issue of fact
arising in another cause, and material to the decision inlar time."*
a devise, "issue" is a word of purchase or of
of the latter. For convenience of trial the issue must limitation, as best answers the intention; in a deed, it
be given the form of a common-law action, with ap- is always a word of purchase.^
propriate pleadings, and an issue thereon; but, never-
Issue of body. Is more flexible than
theless, the nature and purpose of the issue give it " heirs of the body ; " courts more readily in-
Character as a feigned issue or otherwise, and not the
terpret the former as synonymous with " chil-
form in which the issue is expressed. '^
dren "and a mere description of persons, s
rormal issue. Framed according to rule ; See Child; Descend; Die, Without issue; Failu|IB^
opposed to informal issue. Heir; Shelley's Case; Tail; Will, 2.
General issue. Traverses anddenies the ITA. See Lex, Ita, etc.
whole declaration, without offering any spe- ITEM.9 1. In like manner; after the
cial matter whereby to evade it. Leaves same manner; likewise; also; again.
■everything open — the fact, the law, and the 3. A particular in an account or bUl. See
equity of the case. Account, 1 ; Balance.
Formerly used in wills to mark a new paragraph or
Special issue. Denies some one substan-
division after the first paragraph — which, was the im-
tial point as decisive of the whole cause. 3 prim^is.^^ See Also; First.
Common general issues; nil or nihil debet,' non as- ITINERAIfT. See Circuit.
sumpsit; non cepit; non detinet; non est factwm;
not guilty; nul ti^l record; nulla bona; plene admin- > King V. Chase, IB N. H. 16 0844), Parker, C. J.; 55,
istravit; rein en arreare, qq. v.* id. 593; 58 id. 117, 471; 4 F. E. 390; 18 Blatoh. 457.
Material issue. Framed upon a matter » 3 Bl. Com. 280; Perot's Appeal, 108 Pa. 256 (1883).
decisive of the question in dispute. Imma- sHoUand u Adams, 3 Gray, 193 (1865), Shaw, C. J. ;
140 Mass. 267; 60N.H. 451.
terial issue. Framed upon a point not de-
« Ingraham v. Meade, 3 Wall. Jr. 43 (1855); Adams »,
cisive of the right,' Law, 17 How. 431 (1854).
In equity practice, a material issue is an issue upon ' Bigelow V. Morong, 103 Mass. 289 (1869).
a fact which has some bearing upon the equity sought " Taylor v. Taylor, 63 Pa. 483 (1870), Sharswood, J.;
to be established,^ Kleppner v. Laverty, 70 id. 73 (1871); Pobins v. Quin-
Matter in issue. That matter upon liven, 79 id. 338 (1875) ; Wister v. Scott, 105 id. 300, 214-16
•which the plaintiff proceeds by his action, (1884), cases; Keinoehl v. Shirk,, id. (1888), cases; Pal-
mer V. Horn, 84 N. Y. 519 (1881), cases; Magnum v. Pie-
> [3 Bl. Com. 462. ster, 16 S. C. 324 (1881); Atkinson v. M'Cormick, 76 Va.
2 American Dock, &c. Co. v. Trustees of Public
Schools, 37 N. J. B. 269 (18S8), Depue, J. ' 2 Washb. E. P., 4 ed., 604: 4 T. E. 299; 13 N. J. 177;
= See3 Bl. Com. 305; i id. 340; BB Vt. 9.7; Gould, PI. 33 Pa. 483; 28 id. 103; 40 id. 65; 100 id. 540.
282-315. " Daniel v. Whartenby, 17 Wall. 643 (1873).
' See 3 Bl. Com. 305; Gould, PI. 284. ^ L. ita, so; or, is, id, that same.
* [Wooden v. Waflle, 6 How. Pr. IBl (18B1). '» See Hopewell, u. Ackland, 1 Salk. '►239 (1710).
 571 JEOPARDY

J. try and to deliver every person held in pro-

visional confinement, when the judges ar-
J. The initial letter of judge and justice, rived at the circuit town.
words frequently abbreviated : This commission was at first special, issued for in-
dividual cases, but in time became general, or for all
J. A. Judge-advocate. persons so confined. Under this practice the jails
J. A. J. Judge -advocate general. were cleared, and all offenders tried, punished or de-
J. J. Junior judge. livered, twice each year. A
J. P. Justice of the peace, i Jail liberties, or limits. A limited
JJ. Justices or judges. region
Other abbreviations: A. J., associate judge debt. of liberty for a person imprisoned for
or justice; C. J., chief justice; F. J., first Equivalent expressions are: "prison bounds," and
judge; L. J., law judge; P. J., president " rules of the prison, " ^ Compare Intern.
See Imprisonment; Prison.
judge. See Judqb.
JAC. Jacobus : James, king James. JAIflTOR. A person employed to take
JACKASS. See title Horse. charge of rooms or buildings, to see that they
are kept clean and in order, to lock and un-
JAdTITATIOK".2 An assertion repeated
to another's inquiry. lock them, and, generally, to care for them.'
Jactitation of marriage. When a, person gave JEOrAIL.* Mistakes in pleading are
out that he was married to another, whereby common helped by the statute of amendments and
reputation of theii- matrimony might ensue. Upon jeofails: so called because when a pleader
proof of the wrong, the boaster, made respondent to perceives a slip in the form of his pleadings
ahbel in the ecclesiastical court, was enjoined to per-
and acknowledges the error (jeofaile, I have
petual silence.^
Under canon law, false claims of right to a church failed), he may amend it."
sitting, and of title to certain tithes, were also species These statutes did not extend to proceedings in
of jactitation. criminal cases. They cut off niceties in pleading
The law of Louisiana has allowed an action of jac- which had disgraced the courts, and permitted writs
titation for slander of title. of error only for material mistakes.^ See Amesi>-
JACTUS. See Jettison. MENT, 1.

JAUj.* a house or building used for the JEOPAKDY.' Hazard; danger; peril.*
1. The act of March 3, 1825, § 22, prescribes addi-
purposes of a public prison, or where per- tional punishment for any person who, in robbing the
sons under arrest are kept.^ mail, puts the life of the carrier in jeopardy by the use
Originally, a place where persons were of a dangerous weapon. Held, that if the carrier's
confined to await further judicial proceeding ; life is in danger, or if he has a well-grounded fear for
his life, from a threat to use a weapon, his life is put
as, a debtor, till he paid his debt, a witness, or
an accused person, till the trial came on. A in jeopardy, provided a robbery is committed.''
2. " Nor shall any person be subject for the same
"prison" was for confinement as punish- offense to be twice put in jeopardy of life or limb." '"
The constitutions of the several States contain a
ment.''
Every county has two gaols; one for debtors,— any like provision.
house where the sheriff pleases; the other format- "Jeopardy of life or limb" originally referred to
ters of the crown,— the county or common gaol.' trial by battel," g. -u.
Jailer. The keeper of a jail. ' See 4B1. Com. 869; Law Mag. & E., May, 1883;
Formerly, a servant of the sheriff. He keeps safely Great Law of Pa. (1683): Linn, 120.
persons committed to him by lawful authority." 2 See United States v. Knight, 14 Pet. 312, 314 (1840).
Jail delivery. A commission to mem- ' Fagan v. Mayor of New York, 84 N. T. 352 (1881).
bers of the courts of oyer and terminer and • J6f'-fal. F. j'ai failli, I have erred, failed.
general jail delivery, empowering them to » [3 Bl. Com. 407.
•4 Bl. Com. 375, 439; 3 id. 407. See Wilder?). Oilman,
55 Vt. 504 (1883).
1 Shattuck V. People, 5 HI. 481 (1843). ' F. j'ai perdu, I have lost; jeu perdu, a lost game,
« L. jaetitare to utter. OTJeu parti, a divided game: of equal chance; hence,
« [3 Bl. Com. 93; 1 Chitty, Pr. 459. risk, peril,— Skeat.
< Formerly, gaol: F. gaole,a, prison: L. 1,. gabiola, 6 See United States v. Gibert, 2 Sumn. 38-62(1834),
gabia, a cage: L. cavea, a cave. cases, Story, J. ; 4 Wash. 402; 44 Wis. 2S7.
« State V. Bryan, 89 N. Car. 533 (1883), Merrimon, J. » E, S. § 5472; United States v. Wilson, Baldw. 98 (18.30).
• [Bouvier's Law Diet. i» Constitution, Amd. V. Eatifted, Dec. 15, 1791.
11 McFadden v. Commonwealth, 28 Pa. 16 (1853),
' [Jacob's Law Diet,
« [1 Bl. Com. 340. Black, C. J.
 JOINT
JETTISON
573

" Jeopardy " has, in the Constitution, its technical JEWEL. An ornament of the person,
common-law sense; it applies only to strictly criminal such as an ear-ring, a pearl, a diamond, pre-
prosecutions. There is no case where a conviction has
been held a bar to a citU action for damages.' pared to be worn. 1
A watch is not carried as a jewel or ornament, but
A person is in legal jeopardy when put upon trial
as an article of ordinary wear, and of hourly use. It
before a court of competent jurisdiction, under au in-
dictment or information sufilcient in form and sub- is as necessary to a guest at an inn in his room as out
stance to sustain A conviction, and a jury has been of it, in the night as in the day-time.^
charged with his deliverance — that is, empanelled Jewelry. In a statute which prohibits peddling
and sworn. ^ jewelry without a license, a term of the largest import,
A prisoner is in jeopardy when a jury has been em- including all articles under the genus. ^
As generally used, includes articles of personal
panelled and sworn to try him upon a capital charge. 3
adornment, and imports that the articles are of value
The discharge ol the jury without the prisoner's in the community where they are used. . . If by a
consent, after it has been sworn, is allowable only in
a. case of absolute necessity; if made without such pleasing combination of materials, by an attractive
arrangemeut of parts, an article is produced bearing
necessity, it will operate as an acquittal.^
The provision, properly interpreted, refers only to a general resemblance to real jewelry ornaments, and
treason and felonies; but it is made to include misde- suitable for similar uses, it may fairly be called " imi-
meanors. Itdoes not extend to proceedings for the tation jewelry." * See Baggage.
recovery of penalties, nor to apjilication for sureties JEWS. See Sunday.
of the peace.* JOBBER. A merchant who purchases
A prisoner who is indicted for murder, convicted of
goods from importers and sells to retailers.6
murder in the second degree, and granted a new trial, JOHN DOE. See Doe.
cannot, on the second trial, be convicted of a higher
crime than murder in the second degree.^
JOINDEK. Joining; coupling; uniting.
Where a new trial is granted to one found guilty of See Joint.
manslaughter under an indictment for mm'der, he Joinder in denmrrer. Accepting the
may again be tried for murder.* issue tendered b)' defendant. See Dbmueree.
See further Conviction, Former; Punished, Twice;
Vexation. Joinder of actions or causes of action.
Stating more than one cause in the same
JETTISON", or JETSAM.' Any throw- declaration. See Count, 4.
ing overboard ; a throwing overboard for the
preservation of ship and cargo ; also, to oast Joinder of issue. Acceptance of an issue
overboard.8 Sometimes designated as jactus of fact tendered by one's opponent. See
or the jactus. Issue, 3.
Jetsam is where goods, cast into the sea, sink and Joinder of offenses. Incorporating two
remain under water." Opposed, flotsam, ligan. See or more distinct charges of crime in one in-
further AvEEAGB, General; Wreck. dictment.
' See United States v. Gibert, ante. Joinder .of parties. Uniting two or
2 Cooley, Const. Lim. 327-88, cases. more persons in one action as co-plaintiffs or
s Hilands v. Commonwealth, 111 Pa. 4 (1886), cases, as co-defendants. 6 See Party, 2.
Mercur, C. J. See also People v. Horn, 70 Cal. IB
(1886); 24 Cent. Law J. 563 (1887), cases; 18 id. 43-45, Mis-joinder. Joining in an action as co-
63-65 (1884), cases ; 17 Am. Law Rev. 735-63 (18B3), cases ; plaintiffs or co-defendants persons who
4 Or. Law Mag. 31-38, 487-508 (1883), cases; 71 Ala. 309; ought not to be joined.
88 Cal. 467; 41 id. 211; 48 id. 324, 331; 59 id. 359; 1 Idaho, Non-joinder. Failure to join persons as
763; 5lnd. 290; 13 id. 215; 14 id. 39; 26 id. 366; 69 Iowa,
473; 78 Ky. 96; 1 Gray, 490; 105 Mass. 189; 88 Me. 574,
JOINT. Joined; united; done by or
B86; 23 Pa. 12; 12 Vt. 93; L. E., 1 Q. B., 289; 2 Benn. & co-parties."
H., Ld. Cr. Cas. 337. against, or shared between, two or more per-
* 1 Bish. Cr. L. § 990. sons in union.8 Compare Co, 3.
» State V. Belden, 33 Wis. 120, 124 (1873), cases; 1 Bish.
Cr. L. § 849; Cooley, Const. Lim. 328. Contra, State v. • Cavendish v. Cavendish, 1 Brown, Ch. *46S (1785).
Behimer, 20 Ohio St. 572 (1870); State v. McCord, 8 Kan. 'Hamaley v. Leland, 43 N. Y. 641 (1871): 4 Hand, 539.
ml (1871), cases; United States v. Harding, 1 Wall. Jr. ' Commonwealth v. Stephens, 14 Pick. 373 (1833),
187 (1846). Shaw, C. J.
• Commonwealth v. Arnold, 83 Ky. 11 (1886), cases. * Eobbins v. Eobertson, 33 F. E. 710 (1888).
' O. F. Jett-er, to throw; -son, together. L. jactus, 'Steward 11. Winters, 4 Sandf. Ch. *590 (1847): Web-
thrown. ster's Dict„; L. E., 7 P. C. 104.
s Butler v. Wildman, 3 B. & Al. 236 (1820). « See 1 Chitty, PI., 16 Am. ed., 53; Prunty u Mitchell,
76 Va. 170 (1882).
» 1 Bl. Com. 292; 1 Story, Eq. § 490; 3 Kent, 185; Gib-
Bone V. The Jessup, &c. Paper Co., 14 Eep. 644 (1682); ' See Heinlen v. Heilbron, 71 Cal. 560 (1887).
19 How. 162; 10 id. 305; 14 F. E. 59; 19 id. 162. ' [Abbott's Law Diet.
 JOINT 573 JOINTURE

Joint and sev^al. Said of an obliga- Persons engaged in committing the same trespaai
tion in which all the obligees are to be held are joint and several trespassers. Like joint and
several contractors, all, or one, may be sued in one
either collectively or as individuals. Com- action. Where more than one is sued, they may sever
pare Sole. in their pleas, and the juiy may find several verdicts.
As, a joint, or a joint and several — action But the acceptance of any one verdict is a satisfaction
or suit, bond, contract or covenant, interest, of all the others, except as to costs, and is a bar to
another action.' See Contribution.
obligation; a joint — administration, execu- Before the Supreme Court, where the judgment or
tor or trustee, adventure, creditor, debtor, decree is joint, all the parties against whom it is ren-
indictment, judgment or decree, life, party, dered must join in a writ of error or an appeal, in
tenant, trespass, stock company, qq. v. order, first, that the successful party may enforce the
Parties are not said to be joint merely because tbey judgment or decree against the parties who do not de-
are ^connected in an interest which is common to them sire a review ; second, that the same question on the
both: they must be so connected as to be in some same record may be decided at the hearing.^
measure identified. They have not several and respect- The parties non-assenting to the review maybe sev-
ive shares which being united make a whole; but ered. The party whose interest is affected by the al-
these together constitute one whole, which, whether leged error may carry up the case alone, by sununona
it be an interest or an obligation, belongs to all. Hence and severance.^
arises an implied authority to act for each other.' Joint-debtor Acts. In most of the States
A joint and several contract contains distinct en- legislative acts have been passed, called
gagements—that ofeach contractor individually, and Joint-debtor Acts, which, as a substitute for
that of all jointly; and different remedies may be
outlawry, provide that if process be issued
pursued upon each. In co-partnerships there is no
such several liability.^ against several joint-debtors or partners, and
Every contract for a joint loan is in equity deemed, served on one or more of them, and the others
as to the borrowers, a joint and several contract — the cannot be found, the plaintiff may proceed
larger security.' against those served, and, if successful, have
Even without satisfaction, a judgment against one
of two or more joint contractors is a bar to an action judgment against all.
against the others, within the maxim transit in rem Such judgments are generally held to bind the com-
jvdicatam; the cause of action being changed into a mon property of the joint-debtors, as well as the sepa-
matter of record, which has the effect of merging rate property of those served with process; and, while
the inferior into the higher remedy.' they are binding personally on the former, they are
" A covenant is to be construed as joint or several regarded as either not personally binding at all or
according to the interests of the parties appearing only prima facie binding on the latter.*
upon the face of the obligation, if the words are capa-
JOINTirilE. 1. Originally, an estate
ble of such construction; but it will not be construed limited to both husband and wife; but in
as several by reason of several interests, if it be ex- common acceptation extends also to a sole
pressly joint."' estate limited to the wife only, and made in
Where the obligation is joint and several, the ob-
ligee may elect to sue the obligors jointly or singly. satisfaction of her whole dower. In the lat-
Hence, if he obtains a joint judgment, he cannot then ter sense, as defined by Lord Coke, " a com-
sue the obligors separately — the contract being petent livelihood of freehold for the wife, of
merged into a judgment; nor can he maintain a joint lands and tenements ; to take effect, in profit
action after a recovery in a separate action against
one party.' or possession, presently after the death of the
If one of two joint obligees (sureties) dies before husband, for the life of the wife at least." s
the principal, his representative cannot be charged — One mode of barring the claim of a widow to dower
the obligee having elected to take a joint judgment is by settling upon her an allowance previous to mar-
at law or a joint and several obligation. Equity can riage, to be accepted by her in lieu thereof. This is
give relief only when the joint obligation does not ex- called a jointure.'
press the meaning of the parties.' See Reform. ' Love joy v. Murray, 3 Wall. 10 (1865); The Atlas, 93
' 1 Pars. Contr. 21. U. S. 315 (1876); Sessions v. Johnson, 95 id. 348 (1877).
! Mason v. Eldred, 6 Waa 235-11 (1867), cases. » Masterson v. Hemdon, 10 Wall. 416 (1870).
' 1 Story, Eq. § 163. s Simpson v. Greeley, 20 Wall. 157 (1873), cases; Han-
•"United States v. Ames, 99 U. S. 41 (1878), oases. rick V. Patrick, 119 U. S. 163 (1886); 121 id. 632.
"Fami v. Tesson, 1 Black, 315 (18G1): Parke, B.; Cal- • Hall V. Lanning, 91 U. S. 108 (1875), Bradley, J. See
vert V. Bradley, 16 How. 596 (1833); Seymour v. West- generally 36 Alb. Law J. 215-49, 265-69 (1887), cases.
em B. Co., 106 U. S. 331 (1882), cases. •2 Bl. Com. 137: 1 Coke, Inst. 36.
« Sessions v. Johnson, 95 U. S. 347-48 (1877), cases. • 1 Washb. R. P. Ch. VHI. See also Grogan v. Gar-
'United States v. Price, 9 How. 91-95 (1850), cases; rison, 27 Ohio St. 60 (1875); Vance v. Vance, 21 Me. 364
Piokersgill v. Lahens, 15 Wall. 143-44 (1873), cases; 1 (1842); 3 Miss. 692; 19 Mo. 469; 3 Meto., Ky., 151; 12
Btoiy, Eq. §| 162-64. Bush. 513.
 JOURNAL 574 JUDGE

Although once common in England, of little mo- Journeyman. A servant by the day —
ment since the Dower Act of 3 and 4 Wm. IV (183S), whether the work is done by the day or by
0. 105, placed the subject of the wife's dower under the
control of the husband in all cases where special pro- the piece. 1
vision isnot made in her favor; which is usually done JR. See Junior, 1 ; Name, 1.
by marriage settlements. See Settle, 4. JUDEX. 1. In Roman law, when a suit
Jointures, where recognized, are legal or equitable
in nature, and may be made before or after marriage. was commenced, the parties appeai-ed before
the praetor, who made a preliminary exam-
They have been regulated largely bj' the statute of 87
Hen. vni (1636), c. 10,— the Statute of Uses." See Use, ination to find the precise point in contro-
3, Statute, etc. versy. From the statements of the parties
3. An estate in joint-tenancy. he constructed a formula, or brief technical
JOURNAL. A record of the proceedings statement of the issue. He then appointed a
of a legislative body. judex to try the case according to the issue,
"Each House shall keep a Journal of its Proceed- to condemn or acquit the accused, and to
ings, and from time to time publish the same, excepting
such Parts as may in their Judgment require Secrecy; make return of his judgment.^
and the Yeas and Nays of the Members of either 2. In civil law, a magistrate who conducted
House on any question shall, on the Desire of one fifth the proceedings in a cause from its first in-
of those Present, be entered on the Journal." ' ception, and finally decided it.
The constitutions of the States contain similar pro- 3. In English law an officer who admin-
visions.
isters justice in a court of law ; a judge.
The journal is a public record of which the courts
may take judicial notice. If it appears that an act Boni judlcis est ampllare jurisdio-
did not receive the requisite vote, or that it was uncon- tionem. It is the part of a good judge to
stitutionally adopted, the court may adjudge it.void.^ enlarge his jurisdiction — in order to prevent
No court has assumed to go beyond the proceedings
a failure of justice.
of the legislature, as recorded in its journals, on the
question whether a law has been adopted. Many cases Lord Abinger said " that the maxim of the law is to
amplify its remedies, and without usurping jurisdic-
follow The King -7. Arundel, Hobart, *109 (1617), adopt- tion, to apply its rules to the advancement of substan-
ihg the attested enrollment as conclusive on the ques-
tion of passage. But in many States, Ohid among tial justice." ^ Lord Mansfield suggested that the
them, the journals, which are required to be kept by reading should be ^^ a-mpliare justitiam." * The idea
the constitution, are regarded. In the time of Hobart is about this, that the law provides.a rernedy for every '
the journals were not records, but " remembrances wrong.*
Coram judice. Before a judge. Coram
for forms of proceedings to the record " — the enrolled
bill.' See Entry, II, 6; Teas amd Nays. non judice. Before one not a judge. That
is, before a court clothed, or not clothed,
JOURNET. Originally, a day's travel;
now applied to travel by land from place to with jurisdiction in the matter.* See Jueis-
dictiOn.
place, without restriction as to time, and
without the ordinary habits, business, or Wemo debet esse judex in propria sua
duties of the person, to a distance from his causa. No one should be judge in his own
home, and beyond the circle of his friends or cause. No one can be at once judge and
acquaintances ; as, in a statute against carry- party.
In a state of mere nature each individual is his own
ing concealed weapons, except while travel-
judge; which is one of the evils society is intended to
ing on a journey.5 remedy. The power is now lodged in the civil magis-
Travel in the neighborhood of one's home, though
in another county, is not contemplated in the Ten-
trate.'
JUDGE.8 A public officer whose function
nessee act of 1870.»
is to declare the law, to administer justice in
13B1. Com. 180. ' Hart V. Aldridge, 1 Cowp. 55 (1774), Mansfield, C. J.
2 Constitution, Art. I. sec. 5, cl. 3. ' See Hadley, Eom. Law, 60.
= Koehler v. Hill, 60 Iowa, 549-63 (1883). cases; Wise » Eussell V. Smith, 9 M. & W. *818 (1848).
17. Bigger, 79 Va. 280-81 (1884); Cooley, Const. Llm. 135, * Eex V. Phillips, 1 Bur. *304 (1757).
cases; 2 Story, Const. % 301; 94 V. S. 263; 40 Ark. 209; 'Eeynolds v. Hoxsie, 6 E. I. 468 (1860); 1 Story, Eq.
25 111. ]81 ; 4S id. 119; 11 Ind. 4M; 26 Pa. 450; 5 W. Va. 85. §§ 49-50; Bacon, Aph. 96; 12 C. B. 413; 17 Mass. 310;
« State, ex rel. Herron v. Smith, 44 Ohio St. 362-405 Broom, Max. 81, 84,
(1886), cases pro and con. See also Attorney-General • See Virginia v. Eives, 100 U. S. 316 (1879).
V. Eice, Sup. Ct. Mich. (1887): 26 Am. Law Beg. 304rll, '4B1. Com. 8. See 64 Pa. 184^85; 93 N. T. 896; 59
cases; 37 Alb. Law J. 428-83, 449-55 (1888), cases. Tex. 447; 6 Q. B. 753; 18 id. 421.
= Gholson V. State, 53 Ala. 521 (1875), Briokell, C. J. ^F- juger: L. jus dicare, to pronounce the right.
• Smith V. State, 3 Heisk. 511 (1872). See Judex.
 JUDGE 575 JUDGE

a court of law, to conduct the trial of causes States the matter is either determined by the governor.
or by the legislature, or the choice is made by the
between litigants according to legal forms court itself. In the newer States of the west and
and methods. 1 south, the policy of short determinate terms is favored,
As sometimes used, includes any officer ap- while in many of the older Atlantic States the policy
pointed or commissioned to decide a litigated of priority by reason of service is recognized. The
question or questions: as, a justice of the policy of Ohio accords with the former class."
The duties of a judge, in forming his judgment, are:
peace, a referee, master, arbitrator. It is in to gather the materials (facts, law, authorities) on
this sense that jurors are said to be " judges which to form his opinion; to estimate authorities at
of the fact." 2 their proper value as guides; to solve the diflftculties
Frequently interchanged with "justice." See Jus- presented; and, aided by his own knowledge and rea-
tice, 3. son, and the arguments of counsel, with an unpreju-
Originally, the king determined causes; but in time diced mind to make a decision; and, in so doing, to
he delegated the power to judges of his courts, which regard the nature of the case, as new, as within some
powei'ls merely an emanation of the royal prerogative. rule, or as governed by precedent
A judge is the law's vicegerent; he is the law speak- Maxims: a judge is to expound, not to make, the
law; must hear both sides; cannot punish an injury
ing.'
Associate judge or justice. A fellow done to himself; cannot be a witness or a judge in his
member of a court, learned (or unlearned) in own cause; is not to act upon his personal judgment
or from a dictate of private will, but to pronounce ac-
the law, and of equal (or unequal) authority cording to law and justice; ought ever to regard
in the decision of causes. Chief or presi- equity; should have two salts: the salt of wisdom and
dent judge or justice. The member of a the salt of conscience. See Discretion, 5.
court who presides at its sessions and in its The power and jurisdiction of a judge constitute
the office of a judge. The constitutional grant of this
deliberations, directing the business before it,
po iver is incapable of any limitation but that attached
assigning causes to his associates for written to the grant; and the object is to secure independence
opinions of the court, signing orders, and the in the judiciary. But the aggregate of the duties of a
like. See Learned. judge maybe diminished by the division of his district
The supreme court is composed of a chief justice or by the election of an assistant."
and eight associate justices; any six of whom consti- Upon a judge as such no functions can be imposed
tute a quorum.* except those of a judicial nature. Judicial authority,
Various courts of appeal are composed of a chief conferred upon a court, is to be exercised by the
justice and associate judges or justices. " Associate " judges organized as a court.*
does not here import inferiority in any sense. But it All judicial officers are exempt from liability tor
is otherwise where the associates are laymen: then, their judicial acts done within their jurisdiction; and
while the laymen are judges, and consult with the judges of subordinate and general authority are ex-
jjresident judge, their authority is inferior, and they empt even where the judicial act is in excess of their
do not have an equal vote. jurisdiction, unless, perhaps, when done maliciously
Law judge. A judge learned in the law ; or corruptly. Judges of linlited and inferior authority
are protected when they act within their jurisdiction.'
£18 opposed to a judge, perhaps an " asso- It is a general principle of the highest importance
ciate "justice, who has not had legal train- to the proper administration of justice that a judicial
ing. See J. officer, in exercising the authority vested in him, should
Senior judge. In the Ohio act of April be free to act upon his own convictions, without ap-
7, 1883, the judge who has served the longest prehension ofpersonal consequences to himself. This
rule exists for the benefit of the public, and was estab-
under his present commission. lished to secure the independence of the judge. Should
In Nevada, the senior justice in commission is chief
justice, and when the commissions of any two bear ■ State ex rel. Belford v. Hueston, 44 Ohio St. 5, 10-11
the same date, they determine by lot who shall be (1886), Spear, J.
chief justice. In Kentucky, the judge having the ' [Ham, Leg. Judg. 4.]
« Commonwealth v. Gamble, 68 Pa. 343 (1869). See
shortest time to serve is styled the chief justice. Sim-
ilar provisions are found in California, Georgia, Mich- Commonwealth -u. Hardmg, 87 id. 343(1878); Bredin's
igan, Mississippi, Missouri, Nebraska, Oregon, and Appeal, 109 id. 337(1885).
* United States v. Ferreira, 13 How. 40 (1851); 2 Dall.
West Virginia, while in nineteen States there is no
provision for the selection of a chief justice, no such 409; 19 Wall. 107, 6oB'; 6 Kan. 500; 114 Mass. 247. On
offtcer seeming to be known, and in the remaining exercising executive powers, see 3 Kan. Law J. 306-16,
354 (1885), cases.
•See Opinion of Commission, 57 N. T. 405 (1874); 8 1 Randall v. Brigham, 7 Wall. 535-39 (1868), cases.
Heisk. 650.
Field, J. See also Lange v. Benedict, 78 N. Y. 25-37
= See 4 Call. *339; 3 Yates, 314; 3 Cush. 584.
(1878), cases; Rains v. Simpson, 50 Tex. 495, 498-500
" [1 Bl. Com. 267; 3 id. 34.
(1878), cases; Johnston v. Moorman, 80 Va. 140-43
<E. S. S673.
(1885), cases.
 JUDGE- ADVOCATE JUDGMENT
376

he act witli partiality, maliciously, corruptly, arbi- court, upon the matter contained in the
trarily, or oppressively, he may be removed from
office by impeachment, and vote of the legislature, i record. 1
The determination of the law as the result
No man can be a good judge who does not feel free
to follow the dictates of his own mind. In a country of proceedings instituted in a court of jus-
where the people rule, and where popular clamor is
apt to sway the multitude, nothing is more important The final determination of the rights of the
than that the judges should be kept independent. The
settled law of the Supreme Court is that where any parties in the action. 3
tice.'
judicial officer, a justice of the peace included, acts An adjudication of the rights of the parties
within his jurisdiction, he is not amenable to a civil in respect to the claim involved.*
action for damages. TTig motives cannot be inquired The conclusion that naturally and regularly follows
into.' from the premises of law and fact. This conclusion
An act may be so entirely in excess of jurisdiction depends not upon the arbitrary caprice of the judge,
as to make it the arbitrary or unlawful act of a private but upon settled, invariable principles of justice. The
judgment, in short, is the remedy prescribed by law
person.*
See Bbibeet; Certificate; Charge, 2 (2, c); Coubt; for the redress of injuries; the suit or action is the
Decision; Gown; Jodgment; Judicial; Jurisdiction, vehicle or means of administering it.*
2; Jury; Jus, Dicere; Legislation, Judicial; Notes, A step by which a plaintiff, if successful, obtains
1; Opinion, 3; Prejudice: Preside. what he is seeking. It declares, does not create, a
JUDGE-ADVOCATE. The advising right. May be set aside or reversed, and gives no
right superior to that which the plaintiff had before he
and prosecuting officer in military law or be-
fore a court-martial. obtained it."
In its comprehensive sense, embraces not only
He may be the judge-advocate general, or a judgments strictly so called, but also definitive de-
deputy judge-advocate. In conducting a trial, he crees and orders in the nature of judgments.'
represents the' United Sta/.es, the accused, and the In criminal law, denotes the action of the court be-
court. The officer highest in rank present is president fore which a trial is had, declaring the consequences
of the court.
to the convict of the fact ascertained by his convic-
The officer who may order a court-martial is com- tion.'* See Conviction ; Sentence.
petent--to appoint the judge-advocate; the appoint- What is ordered and adjudged by the court, not
ment for a regimental or a garrison court-martial is merely what is entered, constitutes the judgment.^
made in the same manner as for a general court- The more common judgments rendered are: for
martial.
platatiff — by confession, or by default; for defend-
Without the order of the court, he may summon ant — by non suit, non prosequitur^ retraxit^ TioUe
necessary witnesses; and he may compel the attend-
posequii discontinuance, or stet processus,' for either
ance of any person not in the military service. "When plaintiff or defendant — upon a demurrer, an issue of
it is possible, he should send subpoenas through regu- nul tiel record, or a verdict, ^t" qq. v.
lar militar,y channels. He also conducts the examina-
tion of witnesses, observing the established rules of
Aeeumtilative judgment. A sentence
evidence. to imprisonment for a term to commence
By order of the court he may) be assisted by a clerk, after a previous term has expu-ed. See Sen-
preference being given to a soldier. tence, Cumulative.
At the close of the trial, without delay, he should'
transmit the proceedings to the officer having author- ' 3 Bl. Com. 395; Davidson v. Smith, 1 Biss. 351 (1860).
ity to confirm the sentence.* = Mahoning County Bank's Appeal, 32 Pa. 160 (1858);
Communications relating to questions of military 51 id. 375.
justice or proceedings of military courts, upon which s Pearson v. Lovejoy, 53 Barb. 408 (1866); N. Y. Code,
the opinion of the judge-advocate general is desired, § 846; 76 N. Y. 557; Kan. Civ. Code, § 395.
are to be forwarded through proper channels to the * McNulty V. Hurd, 72 N. Y. 521 (1878), Church, C. J.
adjutant-general, when such questions cannot be de- *3 Bl. Com. 396; Be Sedgeley Avenue, 88 Pa. 513
cided by an intermediate authority. But questions of (1879); Zeigler v. Vance, 3 Iowa, 530 (1856).
an abstract, general character will not be considered.* » Steamship Co. v. Jolifle, 2 Wall. 466 (1854).
See Martial, Court, etc. ''Be Road in Shaler Township, 103 Pa. 853 (1883),
JUDGMENT. The saying of the law ;
Sterrett, J.
* Commonwealth '
v. Lockwood, 109 Mass. 335 (1872);
the sentence of the law, pronounced by the Commonwealth v. Gloucester, 110 id. 496 (1872). See
also 3 Ark. 299; 7 id. 398; 3 Col. 631; 2 Fla. 123; 5 id.
1 Bradley v. Fisher, 13 WaU. 347-^ (1871), cases. 450; 50 Ga. 285; 1 Idaho, 459; 74 Ind. 560; 70 Iowa, 89;
Field, J. 3 La. An. 35, 634; 3 Mete., Mass., 520; 32 Md. 160; 18
2 Cooke V. Bangs, 31 F. E. 641-42 (1887), Brewer, J. Minn. 437; 3 Neb. 264; 31 N. J. L. 473; 68 N. C. 355; 19
s Lange v. Benedict, 99 U. S. 71 (1878). S. C. 607; 31 Vt. 160; 10 Wis. 241.
< Regulations of the Army of the United States, 'Houston V. Clark, 36 Kan. 414 (1887): Freeman,
pp. 88, 89, 92 (1881). Judgm. § 38, cases.
'Ibid. p. 87. >«See3Bl. Com. 395-96.
 JUDGMENT 577
JUDGMENT

Domestic judgment. A judgment ren- becoming efiPectual as a final judgment, until the date
of the order refusing the new trial. ^
dered by a court at the domicil of the parties.
All that is required is that the judgment should de-
Foreign judgment. That rendered under termine the issues involved in the action. It may be
some other and independent or foreign juris- that some future order may become necessary to
diction. cany the judgment into effect.^
An action of debt lies upon a foreign judgment.' A judgment being the final determination of the
At common law such a judgment was pHvia facie evi- rights of the parties in an action, it must be final —
dence of tlie debt adjudged to be due. It maybe that is, it must settle the matter which it purports to
shown that the court had no jurisdiction or that the conclude. The reasons annoimced form no part of it.^
judgment was obtained by fraud. A domestic judg- A judgment is '"interlocutory" when given in the
ment, at common law, could not be collaterally im- course of a cause before final judgment.* See further
peached, ifrendered in a court of competent jurisdic- Decree, Final.
tion but
; oidy by a writ of error, a, petition for a new
A judgment for damages, estimated in money, is
trial, or a bill in chancery.^
Judgments recovered in one State, when proved in sometimes called by text writers a specialty or " con-
the courts of another, differ from judgments recov- tract by record," because it establishes a legal obliga-
tion to pay the amount recovered ; and, by a fiction of
ered in a foreign country in no other respect than that
law, a promise to pay is implied where such legal ob-
of not being re-examinable upon the merits, nor im- ligation exists. But this fiction cannot convert a
peachable for fraud in obtaining them, if rendered by
transaction wanting the assent of parties into one
a court having jurisdiction of the cause and of the
which necessarily implies it, as, a judgment for a
parties.^
Though the judgment be set out in full in the com- In some decided cases, and in text books, judges
plaint, the action, whether debt or assumpsit, will not t-ort.^
be held to be brought on such judgment as a record, if and jurists have spoken of judgments as " contracts."
They have been so classified with reference to the
the complaint alleges that by reason of the judgment
remedies upon them. But, strictly, as said by Lord
the defendant became indebted.* See Faith, Full,
etc. ; Law, Foreign. Mansfield, in 1764, " a judgment is no contract, nor
can be considered in that light: tov judicium redditur
Pinal judgment. Such judgment as at in invitum" — consent and consideration are both
once puts an end to the action by declaring
wanting.^
The judgment of a court of concurrent jurisdiction,
that the plainti£E has or has not entitled him-
self to the remedy for which he sues. In- directly upon the point, is, as a plea, a bar; or, as evi-
dence, conclusive between the same parties, upon the
terlocutory judgment. Is upon some same matter, directly in question in another court.
intermediate plea, proceeding, or default, The judgment of a court of exclusive jurisdiction,
and does not finally determine or complete directly upon the point, is, in like manner, conclusive
the suit. upon the same matter, between the same parties,
coming incidentally in question in another court, for
The "interlocutory judgment" most frequently
spoken of is that incomplete judgment whereby the a different purpose. But the judgment of neither a
right of the plaintiff is established, but the quantum court of concurrent nor of exclusive jurisdiction is
evidence of any matter which came collaterally in
of damages is not ascertained.*
A "final judgment" at once puts an end to the ac- question, though within the jm'isdiction; nor of any
tion, by determining that the plaintiff is, or is not, matter indirectly cognizable; nor of any matter to be
entitled to recover, and the amount in debt or damages inferred by argument from the judgment.'
to be recovered.' A judgment is valid upon its face, if It appears that
No judgment is final which does not terminate the the court had jurisdiction of the subject-matter and
litigation between the parties.'
A motion for a new trial prevents a judgment from 1 Brown v. Evans, 18 F. R. 56-61 (1883), cases.
* Perkins v. Sierra Nevada Co., 10 Nev. 411 (187(i),
1 3 Bl. Com. 160, 438. cases. See also 3 Ala. 226; 9 Ark. 352; 1 Cal. 28; 6
2 Michaels v. Post, 81 Wall. 436 (1874), cases; Thomp- Conn. 61; 21 id. 284; 5 Fla. 450; 40 Ga. 320; 9 Iowa, 46;
son V. Whitman, 18 id. 461-69 (1873), cases; Glass v. 24 Pick. 300; 3 Wend. 35; 9 Oreg. 441; 37 Tex. 390.
Blackwell, 48 Ark. 55-56 (1886), cases; 17 Am. Law Eev. 3 Butt V. Hemdon, 36 Kan, 372 (1867), cases, Horton,
411-22 (1383), cases; 18 Cent. Law J. 203-6 (1884), cases; Chief Justice.
Columbia Jurist, 1886: 3 Kan. Law J. 178, 193 (1886), * Nacoochee Hydraulic Mining Co. v. Davis, 40 Ga.
cases; E. S. § 905; 21 W. Va. 116. 320 (1869); Mora v. Sun Mutual Ins. Co., 13 Abb. Pr. 307
a Hanley v. Donoghue, 116 U. S. 4 (1886), cases. (1861).
«MeUinii. Horlick, 31 F. B. 867-88 (1887), cases. s Louisiana v. Mayor of New Orleans, 109 U. S. 289
' 3 BI. Com. 398, 396-97.
» Mahoning County Bank's Appeal, 33 Pa. 160 (1858). 8 O'Brien v. Young, 95 N. Y. 430-^1 (1884), cases.
'St. Clair County v. Lovingston, 18 Wall. 628 (1873); Earl, J, ; Bidleson v. Whytel, 3 Burrow, 1548 (1764).
ib. 588; Weston v. City Council, 2 Pet. *464 (1829); ''Dachess of Kingston's Case, 20 How. St. Tr. 355
United States v. Abatoir Place, lOF U. S. 163 (1882), (1776), De Grey, Ld. C. J.: s. c. 3 Sm. L. C. •784; 3 Gall.
cases; 118 id. 48. 229; 17 Pick. 7-14; 2 Kent, 119.
(37)
 578
JUDICATURE JUDICIAL

of the parties, and that a judgment had in fact been JUDICIAIi. Whatever emanates from a
rendered.' judge as such, or proceeds from a court of
AU defenses admissible against a judgment where
i: was recovered are admissible in an action upon it in
another State. Want of jurisdiction is a good de- Pertaining to the administration of justice
f mse. Whether fraud in procuring it is, seems to de- justice.'
by a judge or court; also, authorized by
fend upon the practice in the forum where the action law.
iiibrought.2 See JnKisnicTiON.
A distinction between erroneous and void judg- Extra-judicial. Outside of lawful pro-
ments is universally recognized.^ See Ekror, 2 (3), cedure; emanating from a person who is
E rroneous. a judge but not from him as a judge; not
At common law, a judgment was not a lien upon sanctioned by law.
realty; a lien arose from the power to issue a writ of
elegit, by statute of 13 Ed. I (1286), c. 18. The right to As, judicial or a judicial — act or action,
extend the land fixed the lien upon it. The reason
admission or confession, authority, capacity,
was, lands answered for feudal duties, and a new circuit, cognizance, comity, construction,
tenant could not be forced upon the lord.* day, decision or determination, department,
(Judgments rendered in the courts of the United dictum, discretioh, district, document, er-
States are liens upon the defendant's realty in all cases riaine, notice, oath, office or offi:cer, opinion,
where similar judgments of the State courts are made
power, proceeding, proof, question, record,
liens by the law of the State." See Addenda^ //30
The lien of a judgment is co-extensive with the ter- report, sale, separation, trial, writ, qq. v.
ritorial limits of the court in which the judgment is
Extra-judicial is applied; almost exclu-
rendered." sively, to an act or action, an admission or a
Judgment-docket. A public record in- confession, a decision or an opinion, and to
tended to afford purchasers and subsequent an oath.
incumbrancers reliable information in regard
Judicial act. An act done in the exer-
to the existence or lien of judgments.
cise of judicial power: an act performed
If the entry of a judgment is wrong in name^
amount, or time, a third person who does not know of by a court, touching the rights of parties, or
the error, will be protected against loss from having property, brought before it by voluntary ap-
acted upon the reliability of the record statements ^ pearance orby the prior action of ministerial
See Idem, Sonans. officers. 2 See Ministerial.
See Amendment, 1; Confession, 1; Conviction;
A "judicial act" determines what the law is, and
Creditor; Debt; Decree; Default; Demurrer; Ex-
ecution. 3;Joint AND Several; Merger, 2; Open, 1 what the rights of parties are, with reference to trans-
actions already had. A "legislative act " prescribes
(4); Pa^BJUDiCE, Without; Praesumptio, Omnia; Ee- what the law shall be in future cases.'
covery; Render, 4; Reversal; Review, 2; Satisfac-
Judicial action. What shall be adjudged
tion; Sign; Term, 4; Terre-tenant; Valid.
JUDICAT17B,E. The state or profes- between litigants, and with which is the
sion of those employed in the administration right of the case, is judicial action, by hear-
■of justice ; judiciary ; jurisdiction ; a tribunal. ing and determining it.*
where any power is conferred upon a court, to
** Parliament was originally a court of judicature."
Judicatvtre Acts. Statutes of 36 and 37 be exercised by it as a court, in the manner and
with the formalities used in its ordinary proceed-
Vict. (1873), 0. 66, and of 88 and 39 Vict. o. ings, the action of the court is to be regarded as
77, with their supplements. judicial, irrespective of the original nature of the
These statutes made important changes in the or-
ganization ofthe courts, and in principles of proced- Judicial action is the application to persons or
ure. The first went into effect Nov. 1, 1876.' See things
power. of
1 legal sequences from facts agreed or judi-
Courts, of England. cially ascertained. There must therefore be parties,
•1 Maxwell v. Stewart, 22 Wall. 79 (1874); Moore v. an issue, and a judgment."
Tovrn of Edgefield, 32 P. E. 50\ (1887), cases.
^^ Freeman, Judgments, § 576, cases. " Ee Cooper, 23 N. T. 82, 84 (1860), Selden, J.
= Hall V. Law, 102 U. S. 464 (1880), cases. = Flournoy v. Jeffersonville, 17 Ind. 173-74 (1861).
* Morsell v. First Nat. Bank, 91 U. S. 860 (1875), cases; s Sinking Fund Cases, 99 U. S. 761 (1878), Field, J.;
Shrew .«. Jones, 2 McLean, 78 (1840). Mabry v. Baxter, 11 Heisk. 690 (1873).
* Ward V. Chamberlain, 3 Black, 438 (1803), cases. • Ehode Island v. Massachusetts, 12 Pet.*718 (1836),
■< Lombard v. Bayard, 1 Wall. Jr. 196 (1648). Baldwin, J.
' Appeal of Nat. Bank of Northumberland, 100 Pa. " Tindal v. Drake, 60 Ala. 177 (1877),'45 Stone,
427 (1882); Moore v. MoKinley, 60 Iowa, -373 (1882). also Be Saline County Subscription, Mo. 63 J.(1869);
See
■e Preface to i5 Eng. Rep., by Moak; 2 Law Q. Eev. Mills V. Brooklyn, 32 N. Y. 495 (1865); Be Zborowski,
1-11 (1886). 68 id. 97 (1877).
 579
JUDICIARY JURAT

Judicial power. The power of inter- Frequently spoken of as the Federal and
preting law — of declaring what the law is the State judiciary.
or has been.i Elective judiciary. When the judges
" The judicial Power of the United States shall be of the courts of a State are chosen by popular
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain vote they are said to constitute an " elective
and establish. . The judicial Power shall extend judiciary." Opposed, appointed judiciary.
to all Cases, in Law and Equity, arising under this
See Judge.
Constitution, the Laws of the United States, and Treat- Judiciary Act. The act of Congress of
ies made, or which shall be made, under their Au- September 34, 1789, under which the Federal
thority; —" to all Cases affectine Ambassadors, other
public Ministers and Consuls; — to all Cases of admi-
courts were originally organized, i
The bill was prepared by Oliver Ellsworth.
ralty and maritime Jurisdiction; — to Controversies to
The wisdom and forethought with which the act
which the United States shall be a Party; — to Contro-
was drawn have been the admiration of succeeding
versies between two or more States; — between a State
generations. It remains to the present day, with a
and Citizen of another State ; — between Citizens of dif-
few unimportant changes, the foundation of our sys-
ferent States; — between Citizens of the same State
claiming Lands under Grants of different States, and tem of judicature, and the law which confers, gov-
erns, controls, and limits the powers of all the Federal
between a State or the Citizens thereof, and foreign
comets, except the Supreme Court, and which largely
States, Citizens or Subjects."
This provision embraces alike civil and criminal regulates the exercise of its powers. =
JUDICrUM. See Judgment.
cases. A case " arises " under the Constitution, a law,
or a treaty, when its correct decision depends upon JUMP BAIL. A colloquial expression
the construction of either. Cases arising under the describing the act of the principal in a bail-
laws are such as grow out of the legislation of Con-
gress, whether they constitute the right or privilege,
bond in violating the condition of the obliga-
or claim or protection, or defense of the party, in tion by failing to do the thing stipulated, as,
whole or in part, by whom they are asserted. A not appearing in court on a particular day to
case may arise out of the implication of the law.^ abide the event of a suit or the order of
How jurisdiction shall be acquired by the inferior court, but, instead, withdrawing or fleeing
courts, whether it shall be original or appellate, and
from the jurisdiction.
the manner of procedure in its exercise, are not pre-
scribed. These subjects are remitted without check JUNIOR. 1. Although usually attached
or limitation to the wisdom of Congress.* to a person's name, is not regarded as a part
Except in the cases in which the Supreme Court is thereof.
given by the Constitution original jurisdiction, the "Junior "and "senior "are words of description,
judicial power is to be exercised as Congress may constitute no part of a name, and may be added or
direct.® omitted in different counts in an Indictment without
A proceeding to ascertain the compensation for affecting its sufiSciency.' See Name, 1.
land taken for a public use is a " suit at law," within 2. Younger ; opposed to senior : as, junior
the meaning of the Constitution and acts conferring
jurisdiction on the Federal courts.'
counsel.
See Case, 2; Courts, United States; Power, 3. 3. Younger in time ; later or more recent: ■
JXTDICIAEY. 1. Pertaining to the de- opposed to priqr : as, a junior judgment, ex-
partment of government which expounds ecution, writ, creditor, patent, survey.
the laws. JURA. See Jus.
2. The body of officers who administer the JURAIi. Pertaining to natural or posi-
law ; the judges taken collectively ; the bench.
JURAT.
tive right.'' From the L,a.tinjuratum, sworn;
' [Wolfe V. M'CauU, 76 Va. 880 (1831). the emphatic word in the Latin form of the
2 Constitution, Art. HI. sec. 1, 8.
certificate to an affidavit or deposition that it
' Cohens v. Virginia, 6 Wheat. 379 (1821), Marshall,
C. J.; Osboum v. United States Bank, 9 id. 320 (1824);
was sworn to.
Tennessee v. Davis, 100 U. S. 264 (1879); The City of The common form is " Sworn to (or affirmed) and
Panama, 101 id. 460 (1879); Manhattan R. Co. v. Mayor subscribed before me Ihis day of , 1888." See
of New York, 18 F. E. 196 (1888); 8 Stoiy, Const. § 1647. Affidavit.
* Mayor of Nashville v. Cooper, 6 Wall. 251 (1867),
Swayne, J. 1 See 1 St. L. 78.
5 New Orleans, &c. E. Co. v. Mississippi, 108 U. S. = United States v. HoUiday, 3 Wall. 414 (1865), Miller,
141 (1880), Harlan, J. See Ames v. Kansas, 111 id. 46.3- J. ; Jones v. Foreman, 66 Ga. 377 (1881).
= Geraghty v. State, 110 Ind. 104 (1886): 52 id. 486; 10
72 (188(4), cases; 65 Barb. 448; 65 N. Y. 150.
• Searl v. School District, 124 U. S. 199 (1888), cases; Paige, 177; 7 Johns. 549; 17 Pick. 200; 131 Mass. 184.
Colorado Midland E. Co. v. Jones, 29 F. E. 193 (1886). ' [Webster's Diet.
 fiSO
JURE JURISDICTION

JURE; JTTEIS. See Jus. under process of the court, whereby it is held to abide
such order as the court may make concerning it.^ See
JURIDICAL. Pertaining to the distri- Notice, 1, Judicial.
bution of justice; used or recognized in Hence, want of jurisdiction may be shown as to the
courts of justice.i Opposed, non-juridical; subject-matter, the person, or, in proceedings in rem,
as, that Sunday is a non-juridical day. as to the thing. '^ ^
JURISCOlfSULT. The juris consuUi, Any movement by a court is the exercise of juris-
diction. . . If the law confers the power to render
or jurisconsults, were experts in the law, re- a judgment or decree, then the court has jurisdiction. ^
sorted to by all persons concerned in the Jurisdiction is coram judice whenever a case is
administration of justice, both officials and presented which brings the power into action.*
advocates, and even private persons who Opposed, non-jurisdiction: the want of
wanted advice as to their legal rights. jurisdiction.
Often, especially in earlier times, they were elderly Jurisdictional. Concerning, also ex-
men who, after passing through the series of political hibiting, the power to hear and deteVmine a
distinctions, found an agreeable occupation for their
advanced years in giving to their fellow-citizens the cause; opposed to non-jurisdictional: as, a
benefit of their knowledge and experience." jurisdictional amount, fact, limit, question;
3. A person who is familiar with interna- non-jurisdictional facts."
tional or public law. Original jurisdiction. Jurisdiction con-
JUBISDICTION.s 1. Governmental au- ferred upon, or inherent in, a court in the
thority. first instance. Appellate jurisdiction.
In extradition treaties, more than mere physical, Power to review the final judgment, order or
territorial, quasi territorial, or treaty jurisdiction ; has decree, of some inferior court.^
the enlarged meaning which is equivalent to *' author- The essential criterion of appellate jurisdiction ip,
ity, cognizance, or power of the courts." * See State, that it revises and corrects the proceedings in a cause
8(2); Tebbitobt, 1. already instituted, and does not create that cause. It
3. Power to hear and determine a cause.' implies that the subject-matter has been already in-
Power to hear and determine the subject- stituted and acted upon by some other court whose -
matter in controversy between parties to a judgment or proceedings are to be revised.'
Exclusive jiirisdiction. Jurisdiction
suit, to adjudicate or exei-cise any judicial
confined to a particular tribunal or grade of
power over them.*
Relates to the exercise of judicial powers.^ courts. Concurrent or co-ordinate juris-
Refers to the power of the court over the diction. Exists co-extensively and cotem-
parties, the subject-matter, the res or prop- poraneoiisly in courts of equal or of different
erty in contest, and the authority of the grade or systems.
court to render the judgment or decree which Exclusive jurisdiction is necessarily original, though
original jurisdiction is not necessarily e^iclusive.^
it assumes to make.s
The rule that among courts of concurrent jurisdic-
By jurisdiction over the " subject-matter " is tion the one which first obtains jurisdiction has the
meant the. nature of the cause of action or relief
exclusive right to decide every question arising in the
sought; and this is conferred by the sovereign author- case, is limited to suits between the same parties or
ity which organizes the court, and is to be sought for
privies, seeking the same relief, and to such questions
in the general nature of its powers or in the authority
specially conferred. Jurisdiction of the "person"
is obtained by the service of process, or by the volun- ^ Cooper V. Reynolds, ante.
tary appearance of the party in the progress of the ' Thompson v. Whitman, 18 Wall. 401-68 (1873), cases.
cause. Jurisdiction of the " res " is obtained by seizure 3 Rhode Island v. Massachusetts, ante.
< United States v. Arredondo, 6 Pet. *709 (1832). See
' [Webster's Die. also 2 How. 338; 7 Saw. 385; 17 F. R. 724; 25 Ala. 91; 71
i'Hadley, Bom. Law, 61, 59; Cushing, Rom. Law, id. 477; 11 Ark. 544; 26 id. 436; 10 Cal. 292; 43 id. 368;
§§ 5-6; Maine, Anc. Law, 35-38. 44 id. 88; 16 Pla. 332; 54 Iowa, 79, 157; 17 La. An. 70;
" L. jus, right; dicere, to proclaim. 27 id. 71 ; 57 Me. 154; 8 Mete, Mass., 462; 74 Mo. 423; 34
< Exp. Vogt, 18 Int. Rev. Ree. 18. N. J, L. 422; 39 id. 262; 63 N. Y. 450; 72 id. 231; 36
'United States v. Arredondo, 6 Pet. »r09 (1S32), Bald- Barb. S44; 13 Pa. 630; 32 id. 357; 42 Tex. 339; 48 id. 440;
win, J. ; Cornell v. Williams, 20 Wall. 249 (1873). 44 Wis. 454.
•Rhode Island v. Massachusetts, 12 Pet. 'TIS (1838), » 106 U. S. 681, 682, 636.
Baldwin, J. " See Exp. Batesville, &c. R. Co., 39 Ark. 87 (1882).
' Reid V. Morton, 119 HI. 130 (1886). ' 2 Story, Const. § 1761 ; Piqua Bank v. Kaoup, 6 Ohio
« Cooper V. Reynolds, 10 Wall. 316 (1870), Miller, J.; St. 330 (1856); Auditor of State v. Atchison, &c. IJ. Co.,
19 Cent. Law J. 102-4 (1884), cases; 25 id. 435 (1887), 6 Zan. 505 (1870).
cases. • 8 Commonwealth v. O'Connell, 8 Gray, 465 (1857).
 581
JURISDICTION JURISPRUDENCE

as arise ordinarily and properly in the progress of the Where there is a lack of jurisdiction, a judgment is
first suit brought. 1 void; where there is a wrongful or defective exercise
The forbearance which courts of co-ordinate juris- of the power, the judgment is voidable,' q. v.
diction, administered under a single system, exercise Jurisdiction once acquired is effectual for all pur-
toward each other, whereby conflicts are avoided, by poses, and exclusive.^ But the court must proceed
avoiding interference with the process of each other, according to the established modes governing the class
is a principle of comity, with perhaps no higher sanc- to which the case belongs, and must not transcend
tion than the Utility which comes from concord; but the law in the extent or character of its judgment."
between State courts and those of the United States, Jurisdiction having attached in the original case,
it is something more. It is a principle of right and of everything done within the power of that jurisdiction,
law, and therefore of necessity. It leaves nothing to when collaterally questioned, is to be held conclusive
discretion or mere convenience. These courts do not of the rights of the parties, unless impeached for fraud.
belong to the same system, so far as their jurisdiction Every intendment is to be made to support the pro-
is concurrent; and although they co-exist in the same ceeding. Infinite confusion would ensue were the rule
place, they are independent and have no common otherwise.*
superior. They exercise jurisdiction in different The record of a court of special jurisdiction must
show its jurisdiction: nothing is presumed in its favor;
planes.'
Where a cotirt, whether State or Federal, has legal otherwise, as to a court of general jurisdiction.* See
custody of persons or property, the courts of the other further Apfabeue, De non, etc.
jm-isdiction will not arrest such persons or property. Jurisdiction is given by the law ; consent can neither
The possession of the officer is the possession of the give nor take it away," — except, perhaps, as to juris-
court, and such action would invade the jurisdiction diction over the person.'
of the court.* Where there is collusion to give jurisdiction, the
Where, in attachment proceedings in a State court, court will dismiss the suit for want of jurisdiction.^
the sheriff is unable to make actual seizure because When a law conferring jurisdiction is repealed
the property is in the possession of a United States without a reservation as to pending cases, suc*h cases
marshal under an attachment from a Federal court, fall with the law."
the creditor, though residing in the same State with See Court; Judgment; Judicial, Power; Judex, 2,
the defendant, may, upon service of notice of his Boni, etc.; Prohibition, 1.
claim upon the marshal, intervene in the Federal JUEISPRUDENCE.io The science of
court, a!nd, upon showing a properly adjudicated
claim, secure a right to share in the proceeds of the
law ; the practical science of giving a wise in-
terpretation tothe laws and of making a just
sale of the property.*
Limited or special jurisdiction. Juris- application of them to cases.n Whence juris-
diction which is confined to particular causes, prudential.
as, those involving demands for money up Comparative jurisprudence. The
to a certain sum. General jurisdiction. study of different systems of laws, or the
Extends to all cases comprised within a class laws of different nations.
or classes of causes, in particular to causes of Equity jurisprudence. That portion oi
a civil nature.' remedial justice which is administered in
Inferior jurisdiction is opposed to superior
jurisdiction, civil to criminal jurisdiction, courts or equity.^'''
> Gray v. Bowles, 74 Mo. 423 (1881).
equitable and statutory to common-law juris- ' French v. Hay, 23 Wall. 263. (1874), cases; Ober v
diction.* Gallagher, 98 U. S. 206 (1876), cases.
In chancery, ordinary jurisdiction is that wherein 'Windsor v. McVeigh, 93 U. S. 282 (1876), cases
the common law is observed; extraordinary, that of United States v. Walker, 109 id. 867 (1883).
equity and good conscience. See Chancery. 'Cornett v. Williams, 20 Wall. 850 (1873), Swayne, J
'See Galpin v. Page, 18 Wall. 365-66 (1873), cases
iBuck V. Colbath, 3 Wall. 345 (1865); Heidritter v. Mousseau's Will, 30 Minn. 205 (1863), cases; Dick v
Elizabeth Oil Cloth Co., 113 U. S. 294 (1884), cases; Wilson, 10 Oreg. 490 (1883), cases; Wade v. Handcock
Smith V. Bauer, 9 Col. 3S0 (1886). 76 Va. 635 (1883), cases.
' Covell V. Heyman, 1 11 U. S. 182 (1884), Matthews, J. ; • Home Ins. Co. v, Morse, 20 Wall. 451 (1874), cases
Ableman v. Booth, 21 How. 516 (1858). Santom v. Ballard, 133 Mass. 465 (1882).
'Senior v. Pierce, 31 F. R. 637 (1887), cases; Melvin v. ' Grimmett v. Askew, 48 Ark. 156 (1886); 49 N. Y. 309
s WUliams v. Nottawa, 104 U. S. 200 (1882); Coffin v
Robinson, ib. 634 (1887), cases; Judd v. Bankers', &c.
Tel. Co., ib. 183 (1887), cases. Haggin, 18 Rep. 547 (1883): Act 3 March, 1875, § 5.
' Gumbel v. Pitkin, 124 U. S. 131 (1888), cases, Mat- • Baltimore, &o. R. Co. v. Grant, 98 U. S. 401 (1878)
thews, J. cases; Sherman v. Grinnell, 123 id. 6S0 (1887).
° See Grace v. American Central Ins. Co., 109 U. S. '» L. jus, right; providens, foreseeing.
283 (1883). ' ' [Bouvier's Law Diet.
« As to conditional statutory jurisdiction, see 26 Am. "[1 Story, Eq. § 35; Jackson v. Nimmo, 3 Lea, 60'
Law Reg. 481-506 (1887), cases. a879).
 JURIST 582 JURY

Medical jurisprudence. See Medicine, Having been first instructed in their duties by the
Medical, etc. judge, they withdraw to hear accusations by bills of
indictment, whether there is sufficient causfe to call
jp"KIST. .One versed in the science of upon the party to answer before the petit jury. They
law. inquire for the body of the county; and find a bill to
Juristic; juristical. Pertaining to the be "true " or " not true " by vote of at least twelve
science of law; concerning a jurist, or juris- members.^
The institution serves to protect persons from be-
prudence. ing put to the trouble and expense of a trial upon
A "jurist," if anything more than, a fine word for a groundless accusation ; constitutes a security against
lawyer, means a lawyer who is mainly eminent through vindicative prosecutions by the government, political
his familiarity with the theoretic side of the law, Sav-
igny and Austin, for instance, were jurists in this sense. partisans, or private enemies.*
The institution of the grand jury is of very ancient
But . a judge who has a wide practical acquaintance
origin. For a long period its powers were not clearly
with cases, and knows how to administer the law found
defined; it seems at first to have both accused and tried
in them, is more than a "jurist:" he is an excellent public offenders. At the time of the settlement of
lawyer and judge. ^ this country, it was an accusing tribunal only, without
JUROR. See Jury. whose action no person charged with a felony, except
JURY.2 .A body of persons sworn, or af- in certain special causes, could be put upon trial. In
firmed, to decide a matter of fact in contro- the struggles which arose in England between the
versy in a court of justice. powers of the king and the rights of the subject, it
often stood as a barrier against persecution in his
A body of men composed of the peers or name. Thus it came to be regarded as an institution
equals of the person whose rights it is selected by which the subject was rendered secure against op-
or summoned to determine; that is, of his pression from unfounded prosecutions of the crown.
neighbors, fellows, associates, persons having In this country, from the popular cliaracter of our in-
stitutions, there has seldom been any contest between
the same legal status in society. ^ gee Peer. the government and the citizens which required the
The persons are, individually, jurors or existence of the grand jury as a protection against op-
pressive action of the government. Yet the institution
jurymen.'*
The term usually imports a tribunal of was adopted and is continued from considerations sim-
twelve mpn presided over by a court hearing ilar to those which give it its chief value in England,
and is designed as a means, liot only of bringing to
the allegations, evidence, and arguments of trial persons accused of public offenses upon just
the parties; a common or petit jury,^ q, v. grounds, but also as a means of protecting the citizen
But it may import more or less than twelve, as when against unfounded accusation, whether it comes from ■
the reference is to a grand jury, a coroner's or a the government, or is prompted by partisan passion
s^erifC's jm'y.* or private enmity. No person shall be required, ac-
The common-law jury of twelve persons has seldom cording to the fundamental law of the country, except
been allowed in courts of special, inferior, or limited in cases mentioned, to answer for any of the higher
jurisdiction, such as police com-ts, courts of justices of crimes, unless this body, consisting of not less than
the peace, probate courts, courts of equity, or in re- sixteen nor more than twenty-three good and lawful
viewing courts. '^ men, selected from the body of the district, shall de-
G-rand jury. Twenty-four [twenty- clare, upon careful deliberation,, under the solemnity
, three] freeholders returned by the sheriff to of an oath, that there is good reason for his accusation
each session of the court of oyer and termi- andWhile
ferial."there is now no danger to the citizen from the
ner and general jail delivery, to inquire,
oppressions of a monarch, or from any form of ex-
present, and do all other things commanded ecutive power, it remains true that the grand jury is
as valuable as ever in securing individual citizens from
them.^ an open and public accusation of crime, and from the
1 The Nation, No. 935, p. 456 (May 31, 1883). trouble, expense, and anxiety of a public trial before
^ F. jur4e, a body of sworn men : L. jurare, to bind a probable cause is established by the presentment
by oath. and indictment of a grand jury.*
sstrauder v. West Virginia, 100 TJ. S. 308 (1879), Objection to the qualification of grand jurors, or to
Strong, J. the mode of summoning or impanelling them, must be
4 Fife V. Commonwealth, 39 Pa. 439 (1857).
" See State v. Kemp, 34 Minn. 63-64 (1885); 67 111. 172;
1 4 Bl. Com. 303.
16 Ind. 496; 70 Iowa, 51-52; 14 Minn. 439; 12 N. Y. 190;
63 Barb. 33; i7 Nev. 370; 4 Ohio St. 177; 2 .Wis. 38; 57 3 2 Story, Const. § 1785.
id. 75; 3Dall. 335. 3 Charge to Grand Jury, 3 Saw. 668-69 (1872), Field, J.;
fl Fitchburg R. Co. v. Boston, &c. E. Co., 3 Cush. 85 Hurtado v. California, 110 tJ. S. 555 (1884); Exp. Bain,
(1849); Knight v. Campbell, 62 Barb. 33 (1873). 121 id. 10 (1887).
' State V. City of Topeka, 36 Kan. 86 (1886). *Exp. Bain, 131 U.S. 12 (1887), Harlan, J., quoting
«4B1. Com. 303. Jones V. Bobbins, 8 Gray, 329 (1857).
 JURY 583 JURY

made by a motion to quash, or by a plea in abate- Petit jury. The lesser jury, which passes
ment, before pleading in bar.i finally upon the truth of the fact in dispute ;
A grand jury is a component part o£ the court, and
a common jury of twelve men.
is under its general supervision and control. Individ-
ual jurors may be punished (or contempt consisting in Traverse jury. The jury which passes
willful misconduct or neglect of duty; but they are in- upon the truth of the facts traversed or de-
dependent intheir actions in determining questions of nied ;a common or petit jury.
fact, and no investigation can ever be made as to how
a juror voted, or what opinion he expressed on a Mixed jxiry. A right to which every col-
matter before him. ored man is entitled is, that in the selection
Investigations before a grand jury must be made in of jurors to pass upon his life, liberty, or
accordance with the well-established rules of evidence, property, there shall be no exclusion of his
and it must hear the best legal proofs of which the
case admits. race, and no discrimination against them be-
cause of color.
Whether a witness is an expert must be first deter-
mined by the court. This is a different thing from a right to have the
Evidence of confessions should not be admitted, ex- jury composed in part of colored men. A mixed jury ■
cept under the direction of the court, or, perhaps, in a particular case is not essential to the equal pro-
unless the prosecuting oiSicer makes the preliminary tection of the laws. ' See Citizen, Amendment, XIV.
inquiries necessary to render such testimony admis- Special or struck jury. Originally,
sible. drawn in causes of too great nicety for the
Since they are sworn " to inquire and a true present- discussion of ordinary freeholders, or where
ment make," they may order the production of other
evidence than that adduced by the prosecution, which the sheriff was suspected of partiality.^
they believe exists and is within reach. The sheriff produced his freeholder's book, and an
oflacer took indifferently forty-eight names. From
A witness's testimony before a grand jury is not a
confidential communication. these names each side struck off twelve, and the re-
maining twenty-four were returned upon the panel,
It is a high contempt of court for a person volun-
from which a jury of twelve men were selected. *
tarily to communicate with a grand jury with refer- Of rare occurrence. The method of selection is reg-
ence to a matter which may come before them.
ulated by local law, and varies as to details in different
The court is the only proper source from which a
jurisdictions. In some States thegury is granted as of
grand jury may obtain advice as to a question of law.
Courts sometimes permit the district attorney, or course upon application; but genei'ally it must appear
that a fair trial cannot be otherwise had, or that the
his assistant, to go before a grand jury, when requested
intricacy or importance of the case requires men spe-
by the foreman or when necessary for a proper ad-
ministration ofjustice. These officers may then assist cially qualified for the service.'
in examining witnesses; may advise in matters of pro- Trial by jury. A trial by a common-law '
cedure, according to well-settled practice; may read
statutes upon which bills of indictment are founded ; jury, a body
A trial of peers; men.''
by one'stwelve secured, originally, by
but they may not advise as to the suflBciency of evi- Magna Charta. The bulwark of the subject's liberties.'
dence.' In the time of Henry II, trial by twelve men gener-
While grand jurors are sworn to secrecy, the later ally superseded tiial by an indefinite number of suitors
doctrine is tliat, to prevent justice from being de- of court, which was in common use in Saxon times.®
feated, a member may testify what evidence was The very spirit of trial by jury is, that the experi-
given before the body. ^ ence, practical knowledge of affairs, and common
Local statutes regulate the qualifications, summon- sense of jurors may be appealed to, to mediate the in-
ing, organization, and duties of grand juries.* consistencies ofthe evidence, and reconcile the ex-
Commoii, petit, or traverse jury. travagances ofthe opposing theories of the parties.'
" In com-ts at common law. where the value in con-
Common jury. Originally, a jury summoned troversy shall exceed twenty dollars, the right of trial
to try matters of an ordinary nature.
Not for each separate cause, as at first, but consist- 1 Virginia v. Rives, 100 U. S. 3i3 (1879).
2 3 Bl. Com. 357.
ing of one panel for every cause, of forty-eight to
seventy-two jurors, twelve of whose names are drawn s See Thompson & M., Juries, §§ 12, 14, cases; Prof-
for the jury itself.' fatt, Jury Trials, §§ 71-75, cases; Abb. N. Y. Dig., tit.
Trial, §§ 190-208; 1 T. & H. Pr. (Pa.) § 630.
1 United States v. Gale, 109 U. S. 65, 71 (1883), cases. « People V. Justices, 74 X. Y. 407 (1878).
'United States v. Kilpatriek, 10 F. R. 765 (1883), •3 Bl. Com. 349; 4 id. 414. See also States. Kemp,
Dick, J. 34 Minn. 63-64 (18£5).
' State V. Grady, 13 Mo. Ap. 363 U888), cases; 4 Crim. ' 12 Alb. Law J. 113. See generally 11 Am. Law. Eev.
Law Mag. 171-87 (1883), cases; 21 Cent. Law J. 104-6 24-S0(1876); 1 Kan. Law J. 100-3 (1885); ib. 357; 4 id.
(188.i),. cases and statutes. (1886); 1 Steph.
161' Standard Hist. Cr. Law Eng. 252-78.
Oil Co. v. Van Etten, 107 U. S. 334 (1882),
» See generally Thompson & M., Juries, Ch. XXVII-
XXXIV; Proffatt, Jury Trials, %% 41-01. Matthews, J. See also Sioux City, &c. R. Co. v. Stout,
» [3 Bl. Cora. 357. 17.WaU. 604 (1873), Hunt, J.
 58i
JURY
JURY

by jury shall be preserved, and no fact tried by a jury as ample and complete as when the constitution was
shall, be otherwise re-examined in any Court of the
United States, than according to the rules of the com- adopted.^
The provision is intended to secure a benefit or right
mon law." * to a party to a suit which he may avail himself of or
This relates to trials in the Federal courts; the waive at its election; and the legislature may make
States are left to regulate trials in their courts in their reasonable laws regulating the mode in which the right
own way. The Constitution only secures trials in State shall be enjoyed.^
coui-ts according to the settled course of judicial pro- -The right " to a, speedy public trial by an impar-
ceedings.'* tial jury of the county wherein the offense shall have
The right does not extend to cases of equity juris- been committed," is waived by the accused, when,
dictionas,
; in claims for damages for alleged infringe- upon his application, the place of trial is changed to
ment of letters-patent. 8 , another county. ^
An application for trial by a jury in a patent case An accused person cannot waive the right unless
by a defendant against whom an injunction is asked waiver is expressly authorized.'* See Waiveb.
may be granted in the discretion of the court; but if See CosviOTioN, Summary; Defense,2, Affidavit of.
the question can be determined more properly by a Questions of law are to be determined by the
chancellor, the application should be refused.* court; questions of fact by the jury. In this regard
The constitutions of the several States provide that the authority of each is absolute.^
"trial by jury shall be as heretofore, and the right The jury should take the law as laid down by the
thereof remain inviolate,"" court, and give it full effect; but its application to the
The legislature may withhold trial by jury from facts, and the facts themselves, it is for them to de-
new offenses created by statute and unknown to the termine. The court may not enter their distinctive
common law, as in the case of the Sunday Law, and province. These are the check and balance which
of numerous enactments in the nature of police regu- give to trial by jury its value. ^
lations for preserving the peace; from new jurisdic- Where the facte are undisputed, their effect is for
tions created by statute and clothed with no common- the judgment of the court; where different minds
law powers, as, in Pennsylvania, in the case of the may honestly draw different conclusions from the
Justices' Hundred Dollar Law, and of the authorities facts, as where care or negligence is to be inferred,
that enforce the liability of counties for property de- the question is for the jury J
stroyed by mobs ; from proceedings which, though in What is said by the court as to the weight of evi-
common-law courts, are out of the course of the dence is advisory, in nowise intended to fetter the ex-
common law, as in motions for summary relief against ercise of the juror's independent judgment. With
judgments; and, in equity suits. Proceedings in or- this limitation, it is the right and duty of the court to
phans' courts, and many in quarter sessions, are other aid them by recalling the testimony to their recollec-
examples. Trial may be denied to municipal corpo- tion, by collecting its details, by suggesting grounds
rations. Jn these instances it is no invasion of the of preference where there is contradiction, by direct-
rights of the citizen to provide some other mode of ing their attention to the most important facts, by
trying contested facts, because "heretofore," that is, eliminating the true points of inquiry, by resolving
at the common law which antedated our constitutions, the evidence, however complicated, into its simpler
trial by jury did not exist in such cases.'' elements, and by showing the bearing of its several
The meaning is that a jury trial is to be preserved in parte and their combined effect, stripped of every
all cases in which it existed prior to the adoption of the consideration which might other ivise mislead or con-
constitution. The right is preserved, not extended : it re- fuse them. How this duty shall be performed de-
mains "inviolate" — that is, not disturbed or limited,^ pends upon the discretion of the judge. Without this
aid, chance, mistake, or caprice may determine the
i Constitution, Amd. VII. Ratified, Dec. 15, 1791.
2 Walker v. Sauvinet, 93 U. S. 93 (1875), cases, Waite, result, s
In dvil cases, the jury are to find for the party in
C. J. ; Pearson v. Yewdall, 95 id. 396 (1877); Callan v.
whose favor the evidence preponderates. In criminal
Wilson, 137 id. 547 (1888).
' 3 Herdsman v. Lewis, 20 Blatch. 266(1883); Rubber 1 State V. City of Topeka, 36 Kan. 86 (1886), Valen-
Co. V. Goodyear, 9 Wall. 788 (1869); Cawood Patent, 94 tine, J.
U. S. 695 (1876); Marsh v. Seymour, 97 id. 348 (1877); 3 2 Foster v. Morse, 132 Mass. 355 (1883), cases.
Flip. 712; 13 Rep. 139; 68 Pa. 130; 73 id. 169. 3 Bennett v. State, 57 Wis. 69 (1883); ib. 74-75, cases.
^Keyes v. Pueblo Smelting, &c. Co., 31 F. R. 560 * Wartner v. State, I93 Ind. 52-53 (1884). cases. On
(1887). abolishing trial by jury, see 20 Am. Law Reg. 661 (1886).
fiRhines v. Clark, 51 Pa. 101 (1865), Woodward, C. J.; The system of jury trial, 21 Am. Law Rev. 859-68(1887),
Haines v. Levin, ib. 414 (1865); Appeal of Borough Hon. Samuel F. Miller.
of Dunmore, 53 id. 374 (1866); La Croix v. County Com- 5 Nudd V. Burrows, 91 U. S. 439 (1875). As to questions
mis ioners. 50Conn. 337 (1883), cases. of fact for the court, see 27 Cent. Law J. 4r-8 (1888),
■J Re Rolfs, 30 Kan. 763 (1883). Brewer, J. Refers to cases.
Byers v. Commonwealth, 43 Pa. 94-96 (1862), Strong, J., « Hickman v. Jones, 9 Wall. 201-3 (1869), cases,
as presenting a "clear and forcible discussion of the Swayne, J.
subject." See also Van Swartow v. Commonwealth, 7 Sioux City, &c. R. Co., v. Stout, iV Wall. 663 (1873),
24 Pa. 134 (1854), Black, C. J.; Callan v. Wilson, 127 Hunt, J. ; Mutual Life Ins. Co. v. Snyder, 93 U. S. 393
U. S. 552-55 (1888), cases. (1876).
 585
JURY JURY

trials, the accused is entitled to the legal presumption of the most valuable securities guaranteed by the Bi
in favor of innocence, which, in doubtful cases, Is al- of Rights. Judges may be partial and oppressivi
ways sufficient to turn the scales in his favor, i See from political or personal prejudice.^
further Doubt, Reasonable. By reason of the experience of the judge the jui
The jury are no more the judges of the law in a will doubtless highly regard his opinion, and inclii
criminal case, upon the plea of not guilty, than they to adopt it rather than a contrary view presented t
are in «. civil case, tried upon the geheral issue. In counsel; but his instructions are only advisory, tt
each case, their verdict, when general, is necessarily jury are not bound to follow them ; and hence the d
compounded of law and fact. In each, they deter- tendant may present views and interpretations of tl
mine the law and the fact. In each, they have the law differing from those stated by the court. Tl
physical power to disregard the law, as laid down by argument must of course be confined to the issue, ar
the court. But they have not the moral right to de- be presented in a respectful manner; and the con
cide the law according to their own notions or pleas- may restrict the time within reasonable bounds.*
ure. On the contrary, the most sacred constitutional It is not improper to instruct the jury that if tht
right of every person accused of a crime is that the can saty upon their oaths that they know the law be
jury should respond as to the facts and the court as to ter than the court itself, they have a right to do s
the law. It is the duty of the court to instruct the but that before saying this it is their duty to refle
jury as to the law; and it is the duty of the juiy to whether from their study and experience they are be
follow the law, as laid down. This is the only protec- ter qualified to judge of the law than the court.'
tion of the citizen. If the jury were at liberty to The reasons for constituting the juiy the " judg
settle the law for themselves, the effect would be, not of the law and the fact " in criminal cases, seem
only that the law itself would be uncertain, from the have been : 1. Having the power to pass upon the la
different views juries might take of it; but, in case of by a general verdict, their right to do so necessari
error, there would be no remedy for the injured party; followed. 2. Up to the time of the prosecutions
for the court would not have any right to review the England for seditious utterances, the right, while a
law as it had been settled by the jury. Indeed, it mitted to exist, was seldom exercised, but the com
would be almost impracticable to ascertain what the tion of affairs in the time of Judge Jeffreys caused
law, as settled by the jury, actually was. On the
vigorous assertion of the right.*
other hand, if the court should err, in laying down In capital cases, the jurors are kept together uni
the law, remedy may be had by a motion for a new discharged; but pending a trial for a misdemeant
trial or by a writ of error. Evei-y person accused as a they may be permitted by the court, without ti
criminal has a right to be tried by the fixed law of the knowledge of the defendant, to separate, witho
land.2 vitiating their verdict.'
The jurors have the power to give a general verdict Facts found by a jurj' may be revised by a motii
upon the general issue, which includes the question of for a new trial, or by a writ of error.
law, as well as of fact; but when, by pleading, special Jirry box. The space set apart for a jui
verdict or demurrer to evidence, the law is separated
from the fact, they have no right to decide the law, while engaged in a trial.
but must follow it as laid down by the court.' A revolving barrel is a " box," within the requii
meat of a statute that names of jurors, before bei
The right of a trial by a jury in a criminal case is
not more distinctly secured than it is in a civil case. drawn, shall be placed in a box and shaken togethe
The right exists only in respect to a disputed fact. Jury commissioner. An officer wl
Where the facts constituting guilt are undisputed, it
providesof apanels of jurors for the successi-
is the duty of the court to direct a verdict of guilty.* terms court.
The jury judge of the law in criminal cases. Hav-
ing the power, they have a right to give a verdict con- ■ Kane v. Commonwealth, 89 Pa. 525-87 (1879), Sha
trary to the instructions of the court upon the law.
wood, C. J.
The court may present the considerations which ! State V. Verry, 36 Kan. 430 (1887), cases, Johnston,
should induce them to follow its instructions, but
"Spies etal. v. People, 128 111. 85 (1887), cases.
should not give a binding instruction which it would
* See 8 Steph. Hist. Cr. Law Eng. 313, et seg.
be powerless to enforce by granting a new trial if the " The jurors were necessarily the judges in all cai
instruction should be disregarded. This power is one
of lite, limb, crime, and disherison of the heir m capi
1 Lilienthal's Tobacco v. United States, 97 U. S. 866 The king could not decide, for he would then ho
(1877), Clifford, J. been both prosecutor and judge, neither could :
' United States v. Battiste, 8 Sumn. 843 (1835), Story,
Judge. justices, for they represent him." Bracton, 119:
Litt. § 308; 3 Coke, Litt. 8860.
s Stettinius v. United States, 6 Cranch, C. C. 573, 584- See generally 3 Cr. Law Mag. 484- (1883), Wade,
99 (18.19), cases, Cranch. C. J. See also United States J.; 4 id. 15-37(1882); 17 Am. Law Rev. 398-410 (18S
V. Wilson, Baldw. 108 (1830); State v. Croteau, 23 Vt. 14, 83 Alb. Law J. 40-1 (1882).
19-81 (1849), cases; Robinson v. State, 66 6a. 518 (1881); » United States v. Bennett, 16 Blatch. 374 (1879), cas
Maloneu State, ib. .548-43 (1881). Commonwealth v. Walsh, 133 Mass. 10 (1888), cases.
« United States v. Anthony, 11 Blatch. 209-10 (1873), improper interference with juries, see 26 Am. L
Hunt, J. Cmtra, United States v. Taylor, 3 McCrary, Beg. 666-73 (1887), cases.
530-5 (1882), cases, McCrary, J. e Commonwealth v. Bacon, 135 Mass. 525 (1863).
 586
JUS JUS

Jury list. A paper containing the names, Jus dispondendi. The right to part
occupations, and place of residence of a with a thing, — to give property away as the
panel of jurors. owner pleases. See WILL, 3.
Jury process. The writ by which a jury Jus et norma. See Usus, Norma, etc.
is Bummoned. Jus flduciarum. See Use, 2. i
Jujy "wheel. A revolving receptacle in Jus gentium. The law of all nations;
which are placed, at designated intervals, the the law which natural reason establishes
names of persons qualified for service as among all races of men ; also, international
jurors, and from which panels are drawn.
See further Array; Call, 3; Challenge, 4; Charge, Jus mariti. The right of the husband —
2 (2, c); Contempt, 1; Codntry, 2; Elisor; Embrac- law.i
ery; Foreman; Impartial; Indifferent; Indictment; in the wife's movable property. See Jure
Labor, 2; Mediatas Linguae; Opinion. 2; Pack; uxoris.
Panel; Privilege, X; Process, ,1, Due; Punished, Jus personarum. Rights of persons.
Twice; Qualify, 2; Eight, 2, Civil Eight's Acts; Jus rerum. Eight of things. See Jura,
Stand Aside; Tales; Trior; Vagrant; Venire; Ver- Jus possessionis. Right of possession.
dict; Vicinage; View; Waiver; Withdrawing.
JUS. L. Kight; law, in the abstract; Jus postlimini. The right of reprisal,—
postliminy, g. v.
justice; jurisprudence. Plural, jMra. Other
Jus precarium. See Use, 2.
forms are jure, juris. See below.
Lex is law in the concrete sense. See Equity. Jus privatum. Private right : law reg-
Alieni juris. See Sui juris. ulating the affairs of individuals. Juris pri-
Apex juris. A subtlety of the law; a vati. Of private right. Jus puWieimi.
legal nicety. A doctrine carried to an ex- Public right: law regulating affairs of the
treme of refinement. state. Juris publici. Of public^ right.^
Apices juris non sunt jura. Subtleties of When private property is " affected with a public
interest, it ceases to be jiirisprivctii" (Hale, Ld.C.J.).
the law are not (do not define) rights — law Property becomes clothed with a public interest when
or equity. 1 used in a manner to make it of public consequence,
Jus acereseendi. Right of survivorship. and affect the community at large. In such cases the
See SURVIVB, 3. owner in effect grants to' the public an interest in the
use, and must submit to be controlled by the public
Jus ad rem. Eight {o a thing. JuS in for the common good, to the extent of the interest he
re. ■Right in a thing. Denote, the first, a has thus created.'
right without possession- — an inchoate right, Jus proprietatis. Right of property:
an incomplete title ; the second, a right with proprietorship.
possession — a perfected title. Jus representationis. The right of
A lien with possession is a jus in re; a lien resting representation, or of being represented, by
in a contract, a jus ad rem. another.
In civil law, a ju.t ad rem obtains mediately and
from relation to a particular person; a jus in re, im-
Jus seriptum. Written law; statute
mediately and absolutely, and is the same as against law. Compare Lex, Scripta.
all persons.'' See Res. , Jus tertii. Right in a third person.
Jus dare. To make the law. Jus di- Thus, a tenant may plead a, new attornment; a
cere. To say what the law is ; to apply the bailee may show that his bailor has parted with his
law.
Jus dicere, non dare. To declare, not to Jura personarum. Rights of persons.
right.*
make, the law. The duty of a judge is to Jura rerum. Rights in things. The rights
which concern or are annexed to the persons
apply the law as made, not to legislate.
The courts^administer the law as they find it; they of men ; and such rights as a man may ac-
are not to make or modify it. Hence, considerations quire over external objects.^
as to expediency are to be addressed to the law-mak-
ing body.' See Hardship.
' See 1 Bl. Com. 43.
= 2 Bl. Com. 9; 37 Wis. 442, 445.
' See Broom, Max. 188; 2 Story, 143; 5 Conn. 334. s Munn v. Illinois, 94 TJ. S. 186, 130 (1876), cases,
2 See 3 Bouv. 30; 2 Ul. Com. 312; 20 Wall. 163. - Waite, C. J.
a 1 Cranch, 177; 21 Wall. 178; 100 U. S. 288, 406, 738; « 93 U. S. 580; 2 Pars. Contr. 204.
102 id. 515; 50 Conn. 189; 1 Bl. Com. 79. «1B1. Com. ia3;aid. 1.
 JUST 587 JUSTIF1CATI0>

Jura summa Imperii. Supreme rights to a complaint of unequal valuation, that the prope
of dominion. is assessed at its " true cash value." '
Jure alluvionis. By right of alluvion. hisJUSTI
due. CE. 2 1. Rendering to every m
See Allcvio.
The dictate of right according to the co
Jure divino. By Divine right or law.
mon consent of mankind generally or of t
Jure humano. By human law.
Jure naturse. portion associated in one government
By the law of nature.
Jureuxoris. The right of the wife. See governed by the same principles and moral
Jus mariti. "In a judicial sense, exact conformity to some
ligatory law." The domg of justice is, then, the r
Juris et de jure. Of right and by formance toward another of whatever is due him
right — bylaw. virtue of a perfect and rigorous right, the execut
Applied to an irrebutable presumption; as, that a of which he may demand by forcible means.'
man at Rome cannot be at London the same day. Op- In its nature justice is preventive, and remedial.
posed, apresumption jurist See Pbesdmption. Every man for an Injury done him may have ri|
Juris privati. See Jus privatum. and justice, freely without sale, fully without den
and speedily with delay,"
Strietum jus. Severe right or law; law A refusal or neglect of justice is remedied b;
in its rigor as opposed to equity. Siricti juris. procedendo, a mandamus, or a prohibition."
Of strict right. Strictissimi juris. Of the Offenses against justice are : embezzling or vacat
strictest right. Subject to the strictest con- records; personating others in court; obstructmg
execution of process; escape; breach of prisi
struction, the most rigorous application, of rescue; receiving stolen goods; common barrat
law.
maintenance; champerty; compounding prosecutio
Applied to a license or a grant highly advantageous
conspu-acy; perjury; bribery; embracery; false v
to the receiver; to maritime liens {q. v.) which are not diet; negligence of public oSBcers; oppression
extended by construction, analogy, or inference; ^ to magistrates; extortion by ofQcers,' qq. v.
a claim against a. surety (3. v.), whose obligations are See Conscience; Equity; Fugitive; Tkial, Speei
never increased by presumptions and equities." 2. A justice of the peace : an inferior jui
Sui juris. Of one's own right ; of capac- cial officer. See Peace, Justice of.
ity to act for one's self. Opposed, non sui 3. Is interchanged with judge.
juris: not of one's own right; and, alieni " Circuit justice" and " justice of the c
juris: of the right of another — under an-
cult " designate the justice of the Suprei
other's control.
What one sui juris may himself do, he may dele-
Court allotted to a circuit; and "judge
gate to another to do for him.*
applied generally to any circuit, will also i
Sui juris cannot be accurately used to denote the elude such justice.*
possession of any degree of physical or mental The members of most supreme courts a
power.*
Roman citizens were either sut juris (jnen of their
styled "justices" — chief justice, associa
own right), acting for themselves independently of justice, etc. See Judge.
JUSTICIAR. See Chancelloe.
family control, or alieni juris (subject to another's
right), subject to the control of one who stood as the JUSTIFIABLE. See Battery; Hoi
head of the family. Both enjoyed alike the rights of CIDE.
freemen. "^ JUSTIFICATION. Making an act
JTJST. 1. Probable; reasonable: as, just matter of right.
cause to make an arrest,. to suspect one of 1. Allegation of a reason why defenda
crime. See Cause, Probable.
might lawfully do the act complained of.
2. Fair, adequate, equivalent: as, just In libel, common as a plea on the gi-ound of pri
compensation, q. v. lege, or of truth and public advantage. The eflf<
In the assessment of property for general taxation,
a "just" or equal valuation is more important than ' Dundee Mortgage Trust Investment Co. v. Cha
an absolutely "true" one; therefore it is no answer ton, 38 F. R. 194 (1687).
^ L. justitia; Justus, rightful.
' 1 -Whart. Ev. §§ ia32--.7; 1 Greenl. Ev. § 15 (1). ' [Duncan v. Magette, 25 Tex. 263 (1860), Roberts,
2 Vandewater v. Mills, 19 How. 89 (1356). » Borden v. State, 11 Ark. 628 (1861), Scott, J., quoti
'Leggett V. Humphreys, 21 How. 75 (1858); Smith Burlamaqui.
V. United States, 2 Wall. 235 (1864). » [1 Bl. Coih. 141: Magna Charta, c. 29.
* Story, Agency, § 11. •SBl. Com. 109.
■• 4 Bl. Com. 127.
■'■ 38 N. Y. 455; 47 id. 317; 63 id. 104; 15 Alb. L. J. 327.
•Hadley, Eom. Law, 107, 119. «E. S. § 605.
 588
K KENT

then is that the plamti£E never had any right of action, 2. One who assists in superintending a
because the act charged was lawful. ^ See Slander.
2. Proof that bail is sufficient. gamin g-house.i See Disoedeely House.
8. One who harbors a dog upon his prem-
Made by oath of the person proposed, that he pos-
sesses the qualifications required by law. ises is responsible, as keeper of the animal,
for injuries done by him. 2
4. Owner, proprietor. See Inn; Livery-
K. stable; Saloon.
Keeper of the Icing's conscience. The lord
chancellor — formerly an ecclesiastic.
K. As an abbreviation, commonly de- Keeper of the seal. See Seal, 1.
notes king. Compare Q. KENO. See Game, 2.
K. E. King's bench, q. v. KENT, James.
K. C. King's council, or counsel, qq. v. Was born in Putnam county, New York, July 31,
KEEP. Varies in meaning with the con- 1763, and died December 12, 1847.
nections in-which it is found — the context His grandfather was a clergyman, his father a law-
or circumstances. yer; and both were graduates of Yale college.
He entered Yale in 1777, and was graduated with
Keep a gaming table. Implies a use distinction in 1781. In July, 1779, the students being
not merely temporary. 2 dispersed by the invasion of New Haven by the British
Keep a nuisanoe. See Maintain. troops, he withdrew to a small town, where he chanced
Keep a woman. In popular acceptation, to read a copy of Blackstone's Commentaries, the pe-
rusal influencing him in deciding to study law.
imports an illicit i-elation.s He was admitted to the bar in 1185, and began the
Keep an inn. Keep a house for the en- practice at Poughkeepsie, where he had pursued his
tertainment oftravelers and others, for pay.* studies.
In 1790, and in 1793, he was elected to the legislature
Keep down interest. Pay interest peri- from Duchess county. He was an active Federalist,
odically as it becomes due.' and had the friendship of Jay and Hamilton.
Keep house. May be said of a trader In 1793, he removed to New York city, and in the
who secretes himself in his house to avoid following year began to deliver lectures in the law de-
his creditors. 6 partment ofColumbia college. The attendance upon
Keep in repair. See Eepaik. the course for 1795 did not encourage him to deliver
another course. The iirst three lectures were after-
' Keep liquor. Keeping spirituous liquor ward published, but the sale of copies did not repay
for sale is having possession and control of it the expense of publication.
with intent and readiness to make a sale or In 1796, he was appointed one of the two masters in
sales. , chancery in New York city, and was also re-elected
to the legislature; and the next year he was made
This may be a long-continued practice or it may be
instantaneous.' recorder of the city.
In 1798, he was appointed a judge of the supreme
Keep open. Implies a readiness to carry court, in which capacity he continued sixteen years,
on the usual business in a store, saloon, eto.8 during ten of which be was chief justice. At that time
To allow general access, for purposes of there were neither reports nor precedents of the court ;
traffic,, although the outer entrance is closed. 9 the judges pronounced their opinions orally and at
very irregular intervals; the law itself was embryonic
Keep the peace. To avoid disturbing
and unsettled. Kent decided cases without delay, and,
the peace ; to prevent others from breaking in cases of importance, delivered written opinions.
the peace. The most of these opinions have been preserved in the
Keeper. 1. A person placed in charge of three voliimes of Johnson's Cases (1779-1803), the four-
attached personalty, i" teen volumes of Johnson's Reports (1806-1817). and the
seven volumes of Johnson's Chancery Reports^ (1814-
1823). The large number of per curiam opinions in
1 Steph. PI. S34; 3 Bl. Com. 306. eighth Johnson, all of one term, are by him, alfhough
2 United States v. Smith, 4 Cranch, C. C. 660-63 (1836). not so indicated. " English authorities did not stand
' Downing v. Wilson, 36 Ala. 719 (1830). high in those feverish times, and this led me," he
< [State V. Stone, 6 Vt. 298 (1834). wrote, "to bear down opposition, or to shame it, by
sRegina v. Hutchinson, 82 E. C. L. *211 (1854).
» Gumming v. Baily, 6 Bing. *370 (1830). ' Stevens v. People, 67 HI. 590 (1873).
. 'State V. Haney, 68 N. H. 379 1878). = Barrett v. Maiden, &c. R. Co., 3 Allen, 101 (1861);
"Lynch v. People, 16 Mich. 477 (1868). Commonwealth v. Palmer, 134 Mass. 637 (1883); Cum-
» Commonwealth v. Harrison, 11 Gray, 308 (1858). mings V. RUey, 52 N. H. 369 (1872); Grant v. Ricker, 74
" See Cutter v. Howe, 132 Mass. 543 (1877). Me. 488 (1883).
 EENT 589 KIND

exhausting research and overwhelming authority. KEROSENE. See Oil.

Our jurisprudence was probably on the whole im-
proved by it. . . The judges were Republicans,
KEY. See Donatio, Mortis, etc. ; Hous:
kindly disposed to everything French; and this en- KIDNAPINa.i The forcible abductic
abled me, without exciting alarm or jealousy, to make or stealing away of a man, woman, or chi
free use of such [French] authorities, and thereby from his or her own country, and sending i
enrich our commercial law."
From 1814 to 1828, he presided over the court of taking him or her into another country.^
chancery in the State of New York. The seven vol- The equivalent of abduction, q. v.
Bringing into the United States any person inveigl
umes of Johnson's Chancery Reports contain his de-
cisions tor that period, and present an extended and or kidnaped in any 'other countiT with intent to ho
such person to involuntary servitude (g. «.) is a felon
learned exposition of equity jurisprudence. " For the
punishable with as much as five years imprisonme
nine years I was in that ofSce," he further wrote, and five thousand dollars fine.^
" there was not a single decision or dictum of either
Physical force is not necessary. The crime is us
of my predecessors — Livingston, and Lansing, 1777 to
ally committed by threats. It is sufficient to show
1814 — cited or even suggested to me. I tookthe court
as if it were an institution never before known m the mind operated upon by falsely exciting the fears, 1
United States. I had nothing to guide me, and was threats, or other undue influence, amounting substa
tially to a coercion of the will, as a substitute for vi
left at liberty to assume all such English chancery
practice and jurisdiction as I thought applicable under lence. The condition of the person kidnaped, the ag
our constitution. . . I was only checked by the education, condition of mind, and other circumstanc*
are to be considered.* See Extradition.
senate as a court of errors."
He left no aspect of a case unexamined and unde- KILL. See Defense, 1; HoMicrD:
cided. His dicta have furnished the basis of count- Wanton. .
less adjudications. KIN; KINDRED. Relationship 1
In 1S23, being in his sixty-first year, and, under the blood ; persons legitimately related by blooc
constitution, no longer qualified for judicial ofiice, he
Next of kin. Nearest of blood relative
resumed residence in New York city, and was re-
elected to the chair in Columbia law school which had "Next of kin," "nearest of kin," "nearest of ki
been vacant since he left it in 1795. Here he delivered dred," and " nearest blood relatives " primarily ini
the lectures which constituted the substance of his cate the nearest degree of consanguinity, in wM
" Commentaries on American Law," as first published. sense also they are most frequently used.''
Does not include a husband or wife, unless plain
" Having got heartily tired of lecturing, I abandoned
It, and it was mj- son that pressed me to prepare a BO Nor
intended.^
volume of lectures for the press. I had no idea of does it ordinarily include a widow; but it m:
publishing them when I delivered them. I wrote a include such one, as, in a will."*
new volume and published it. This led me to remodel Refers to the relatives of an intestate. In gener;
no one comes within the term who is not included
and enlarge, and now the third volume will be out in
a few days; and I am obliged to write a fourth to com- the provisions of the statutes of distribution.^
See CoNSANGDiNiTv; Descent; Heir; Relation,
plete my plan." Widow.
The first volume of the Commentaries was published
in 1826, the second in 1827, the third in 1829, and the KIND. Originally, race, kin ; now, genu
fourth in 1830. Up to the time of his death, in 1847,
he had revised five other editions. His son Judge generic class.
William Kent superintended the preparation of the Law J. 40. See also 13 Alb. Law J. 206-10 (1876) ; Am(
seventh edition in 1852, the eighth in 1864, the ninth in ican Cyclopaedia.
1858, and the tenth in 1860. The eleventh edition was ' Orig., to steal a child: kid, slang for child; na
to nab. Formerly spelled kidnapping.
prepared by Judge George F. Comstock, in 1868, the
twelfth by Oliver Wendell Holmes, Jr., In 1873, and 2 [4 Bl. Com. 219.
> Act 23 June, 1874: 1 Sup. E. S. 103.
the thirteent'u by C. M. Barnes, in 1884.
« See Moody u People, 20 111. 318-19 (1858); State
Of part of Kent's judicial labors Story said that
" to unfold the doctrines of chancery in our country Rollins, 8 N. H. 565-67(1837); Click v. State, 3 Tex. S
and to settle them upon immovable foundations, it re- (1848); 2 Bish. Cr. L. §§ 750-56.
5 McCord V. Smith, 1 Black, 470 (1861); 62 Ga. 145;
quired such a man with such a mind, at once liberal,
Cush. 25; 73 N. Y. 315; 16 Wis. 635.
comprehensive, exact, and methodical; always rev-
erencing authorities and bound by decisions; true to « Swasey v. Jaques, 144 Mass. 138, 137 (1887), cas(
Field, J.
the spirit yet more true to the letter of the law; prov- ' Haraden v. Larrabee, 113 Mass. 431 (1873), case
ing principles with a severe and scrupulous logic, yet
Wetter v. Walker, 62 Ga. 145 (1878).
blending with them the most persuasive equity." * Keteltas v. Keteltas, 72 N. Y. 815 (1873), cases.
Story also wrote that the Commentaries were new
9 Steel V. Kurtz, 28 Ohio St. 196 (1876). See als<
proof of the author's accurate learning, extensive re- Bradf. 495; 28 Md. 412; 67 N. Y. 389; 24 Hun, 15;
bearch, and unwearied diligence.' Barb. 28; 34 id. 410; 43 id. 1G2; 63 N. 0. 242; 17 Ohio i
' See autobiographical letter of 1828, first published 367; 4R. L4; 62 Wis. 135.
in 1872, in 1 South. Law Eev. 382; re-published in 0 Alb. |
 KING 590 KNOWLEDGE

In kind. A payment of money, the de- affairs, is not to be imputed to him; or, that the pre-
livery or deposit of an object, as of rent, or rogative extends not to an injury; in his political ca-
pacity the king is absolute perfection.'
services rendered, are made or rendered " in The maxim has no place in our systems of constitu-
kind," when of a thing or services which tional law. The Constitution admits that heads of
correspond in class or general nature to that departments may do wrong, and provides for their
intended. Opposed, in specie: in the identi- impeachment.*
cal state or condition, in exact terms. See A wrong attempted in the name of a State is im-
putable to its government. 8
Deposit, 3, General. Compare Genus. Statutes of parliament are generally cited by the
KING; QUEEN. 1. The person in name and the year of the sovereign in whose reign
whom is invested the supreme executive they were passed. In the subjoined table the Boman
numerals indicate the year of accession:
power of the government of Great Britain.
1. William 1, 1066. 20. Henry VHI, 1509.
2. Sovereign power; government; com- 2. WUliam H, 1087. 21. Edward VI, 1547.
monwealthstate.
; Compare Rex.
3. Henry I, 1100. 22. Mary, 1553.''
The crown is hereditaiy, in the feudal path for suc- 4. Stephen, 1135. 23. Elizabeth, 1669.
cession to landed estates as marked out by the com- 5. Henry H, 1164. 21. James 1, 1608.
mon law; but this does not imply an indefeasible 6. Richard 1, 1189. 25. Charles 1, 1626.
right. Therefore, in his political capacity, the king 7. John, 1199. 26. The Commonwealth,
never dies.* 8. Henry IH, 1216. 1649.
' His duty is to govern according to law;. disobedi- 9. Edward 1, 1273. 27. Charles II, 1649.'
ence to his command is a high contempt or a mis- 10. Edward II, lS07. 28. James H, 1686.
prision.2 11. Edward III, 1327. 29. William and Mary, 1689.
As the fountain of justice, he is always ubiquitous — 12. Richard H, 1377. 30. William HI, 1695.=
always present in his courts; hence he cannot be 13. Henry IV, 1399. 31. Anne, 1702.
non-suit, and does not appear by attorney.^ 14. Henry V, 1413. 38. George 1, 1714.
He is the steward of the public, to dispense justice 15. Henry VI, 1422. 33. George H, 1727.
to whomsoever it is due.* 16. Edward IV, 1461. 34. George III, 1760.
In foreign affairs he represents the nation: sends 17. Edward V, 1483. 35. George IV, 1820.
and receives ambassadors; makes treaties; proclaims 18. Richard m, 1483. 36. William IV, 1830.
war, and peace; issues reprisals, grants, safe-conducts. 19. Henry VII, 1485. 37. Victoria, June 20, 1837.
In domestic affairs he is part of the supreme legisla- See Bench; Council; Counsel; Court, T; Crown;
tive power: may negative a new law, and is bound by Fe[jd; Government; Parliament; Patent, 1; Patria;
none unless specially named; is the general of the Peace, 1; Prerogative; Tenure,!; Treason; Ubiq-
kingdom — raises armies, defends the kingdom ; con- uity, 1.
fines subjects within the realm, recalls them from KISS THE BOOK. Placing the Bible
abroad; is the general conservator of the peace — to the lips in attestation of the obligation of
erects courts, prosecutes offenders, pardons crimes,
issues proclamations; is the fountain of office and an oath just administered. See further Oath.
privilege; is the arbiter of domestic commerce — KLEPTOMANIA. See Insanity.
erects marts, regulates weights and measures and the KNIGHT. See Feud.
coinage of money; and is the supreme head of the KNOCKDOWN. See Auction; Bid Off.
church — convenes and dissolves synods, nominates KNOT. See Milb.
bishops, and receives appeals.
His revenue is ordinary: ecclesiastical and tem- KNOW ALL MEN, etc. See Pres-
poral— from demesne lands of the crown, from the ents, 1.
Courts of justice, royal fish, wrecks, jetsam, flotsam, KNOWLEDGE. 1. A being aware of:
ligan, royal mines, treasure-trove, waifs, estrays, for- information, cognizance; notice.
feitures for offenses and for deodands; from escheats,
and from the custody of lunatics; and extraordinary: Absolute knowledge can be had of few things.^
aids, subsidies granted by the Commons — now a tax,
charged with the civil list, and with which the expenses 1 1 Bl. Com. 246; 2 id. 243; 3 id. 254; 4 id. 32.
of the civil government are defi'ayed.^ 2 Langford v. United States, 101 U. S. 343 (1879).
In the kfing there can be no negligence; no delay =1 Virginia Coupon Cases, 114 U. S. 290 (1885).
bars his right.' See Tempus, Nullum, etc. * In 1554, married Philip of Spain; hence, Philip and
" The king can do no wrong." This means either Mary, 1554-58.
that whatever is excep'tional in the conduct of public ^ Ascended the throne in 1C60; his regnal years are
counted from' 1649 — when Charles I died.
> 1 Bl. Com. 191, 193, 196. 1^, Normans; 5-12, Plantagenets; 13-15, House of
2 1B1. Com. 23.3; 4 id. 122. Lancaster; 16-18, House of York; 19-83, House of
»1B1. Com. 270; 3 id. 24. Tudor; 24-25, 87-31, House of Stuart; 32-37, House of
< 1 Bl. Com. 266. Hanover.
« 1 Bl. Com. ch. vn, vm. "Mary died in 1694.
8 1 Bl. Com. 847. ' Story V. Buffum, 8 Allen, 38 (1864).
 KNOWLEDGE 691 LABOR

Kno-wledge and belief. Nothing more betrayed, as, between an attorney and hisclient." See
further Agent.
than firm belief. Belief applies to the im-
pression on the memory. The difference Is Knowingly. Imports thit an accused
person knew what he was about to do, and
in degree.i See further Belief.
with such knowledge proceeded to commit
Personal knowledge. Actual knowl-
edge of the truth or falsity of a matter, not the offense charged. 2
derived from another person.^ Known; unknown. In tlie laws of tax-
An affidavit filed in an application tor a change of ation and seizures of property, apply to own-
venue, alleging that the defendant had not th6retof ore ers whose residence is, and is not, known.
" full knowledge " of a particular fact, was held to be See Notice, 1.
too indefinite, as an averment. "Full knowledge See Fraud; Guilty; Ignorance; Ignore; Informa-
might never come to him ; but he had knowledge, and,
tion, 1;Innocence; Inquiry; Intent; Permit; Eepre-
for aught that appears, it might have been sufficient
SENTATION, 1; RESCISSION; WiLL, 1; Wittingly. Com-
to satisfy his mind." ' pare NosciTUR ; Scire.
Knowledge is imputed from a duty to exercise ordi-
2. Sexual bodily connection : carnal knowl-
nary care. Inquiry is a moral duty where the circum-
stances are such that a person of ordinary prudence
would refuse to act.* " Carnally knew " is the technical phrase used in
One who has reason to believe that a fact exists edge.'
charging rape, 3. u.
knows that it exists.*
Where there is enough to put one concerned upon Conspiracy. L.
KU KLUX. See United States v. Harris,

Inquiry, the means of knowledge and knowledge itself

are, in legal effect, the same thing."
When a party is about to perform an act which he
has reason to believe may afEect the rights of third L. An abbreviation, chiefly of large,
persons, an inquiry as to the facts is a moral duty, and Latin, law, leading, lord :
diUgence an act of justice. Whatever fairly puts a
party upon inquiry in such case is sufficient notice in L. C. Leading case ; lord chancellor.
equity, where the means of knowledge are at hand; Ii. F. Law French ; levari facias.
and, if he omits to inquire and proceeds to act, he I,. J. Law Journal; law judge.
does so at his peril, as he is then chargeable with all L. JJ. Law judges.
the facts which by a proper inqmry he might have
ascertained.' L. L. Law, late, or low Latin, q. v.
Knowledge of facts which will enable a party to Ii. R. Law reports.
take effectual action is implied in such terms as " ac- L. S. Loeus sigilli, place of the seal, g. v.
quiescence," "estoppel," "waiver,"' 33. v. LL. Laws.
Equal knowledge on both sides makes contracting
parties equal. LL. B. Bachelor of laws. LL. D. Doc-
Information in the agent is information in the prin- tor of laws. LL. M. Master of laws. See
cipal;» but not so, it professional confidence would be Degree, 3.
LABEL. See Book, 1; Copyright;
1 Hatch V. Carpenter, 7 Gray, 374 (1867). See Hard- Trade-mark.
son V. Beard, 30 Kan. 533 (1883). LABOR. 1, n. Manual exertion of a
' See West v. Home Ins. Co., 18 F. E. 622 <
toilsome nature.
3 McCann v. People, 88 111. 105 (1878). Compare White This is the meaning in statutes, unless plainly used
V. Murtland, 71 id. 259 (1874); Roberts v. People, 9 Col. in another sense. Toil, or that which does or may pro-
4B3 (1886). duce weariness, and not mere business, is the idea
« Lawrence v. Dana, 4 Cliff. 68-89 (1869), cases. conveyed by the word as ordinarUy employed
in Sun-
' Shaw V. North Pennsylvania R. Co., 101 U. S. 566
(1879).
day laws.'cally, embraces all sorts of services,
Techni
« Jones V. Guaranty, &o. Co., 101 V. S. 633 (1879), the
whether physical or mental, or whether
Swayne, J.; Hoyt,;. Sprague, 103 id. 637 (1880); Good-
man V. Simonds, 20 How 367 (1857). cases.
iThe Distilled Spirits, 11 Wall. 366-67 (1870),
' Angle V. N. W. Mutual Life Ins. Co., 92 U. S.
342 see 18
As to presumptions of knowledge, in general,
ioners of Alb. Law J. 7-9 (18831, cases.
(1875) cases, aiflord, J. See also Commiss
F. R. 210
Leavenworth Co. v. Chicago, &o. R. Co., 18 2 United States v. Claypool, 14 F. R. 128 (1882);
Greg-
Filmore
(1883)- Martin v. Smith, 1 DUl. 90 (1870), cases; ory V. United States, 17 Blatch. 330 (1879). See gener-
v. Hall,
V. Eeithman, 6 Col. 129 (1881), cases; Efflngar ally 2Steph. Hist. Cr. Law Eng. 114-18. cases.
81 Va. 106 (1386), cases. .Commonwealth v. Squires, 97 Mass. 61 (1867),
n,
8 Pence v. Langdon, 99 U. S. 581 (1878), Swayne, J. . Bloom V. Richards, 2 Ohio St. 401 (1853), Thurma
nd
"Smith V. Ayer, 101 U. S. 327 (1879); Rogers
v. Pal- J ■ More V. Clymer, 12 Mo. Ap. 15-16 (1882); Richmo
mer, 102 id. 263 (1880).
437-38 (-"""-
«. Moore. 107 ni.
 593
LABOR LABOR

main ingredient is manual toil or professional of one who superintends the erection of a building; i
or other skill ; but in the naiTOwer and popu- nor of a civil or consulting engineer; " nor of the fore-
man of a mine; ' nor of an overseer of a plantation; *
lar signification, is restricted to physical toil.' nor of a teamster; • nor of a tidie-keeper and superin-
In its most extended sense, includes every tendent; =nor of a cook in a hotel.'
possible human exertion, mental or physical.^
Bodily labor bestowed upon a subject which before
Common labor. Ordinary manual labor, lay in common to all men, gives the most reasonable
as distinguished from intellectual labor. title to an exclusive property therein.^
In the Sunday law of Ohio, embraces "trading, Labor is property. As such it merits protection.
bartering, selling, or buying any goods, wares, or mer- The right to make it available is next in importance
chandise." '
to the tent,rights of life and ofliberty.
at the foundation It lies,'
most forms of to a large and
property, ex-
Gaming is not an act of " common labor " or of
one's usual vocation.* of all solid individual and national prosperity.'
Hard labor. State's prison convicts often The act of Congress of February 26, 1886 (23 St. L.
are sentenced to perform " hard labor." 333), makes it unlawful for any person to assist or en-
coiu'age the importation or migration of foreigners
This imports nothing more than ordinary in- under contract to perform labor or service of any kind,
dustry at some mechanical trade.* made previous to the importation. The penalty is a
Imprisonment at hard labor may be changed to forfeiture of one thousand dollars for every laborer
mere imprisonment, where an act provides for im- brought into the country; and tbe master of any ves-
prisonment only.^ sel who knowingly brings in such emigrant laborer
Where hard labor is prescribed as part of the pun- shall be guilty of a misdemeanor, pay a fine of not
ishment itmust be included' in the sentence; but where more than five hundred dollars, and be imprisoned for
naere imprisonment is required, a Federal court is au- a term not exceeding six months. The act excepts
thorized, inits discretion, to order its sentence to be
foreigners engaged as private secretaries, servants or
executed at a place where, as part of the discipline, domestics of foreigners, skilled workmen performing
hard labor is required.' labor in a new industry, professional actors, artists,
When the use of the word "hard " may be treated lecturers, singera, domestic servants, and relatives and
as surplusage, the sentence will still stand.^ friends assisted to come here for settlement.
Hard labor was first introduced into English prisons That act was amended by the act of February 23,
in 1706. See further Imprisonment; Infamy. 1887 (24 St. L. 414), empowering the secretary of the
Laborer. One who labors in a toilsome treasuiy to execute the original act, and, for thatpur-
occupation.' pose, to make contracts with State officers — to take
One who gains a livelihood by manual toil ; charge of immigration, to examine ships as to the con-
dition of passengers, to report to the collector of the
one who depends on hand work, not on head
port any persons within the prohibition of the act, and
work, for a living.!" that such persons shall not be permitted to land, but
He is a species of servant, hired by the day or week, shall be sent back to the country whence they came,
and not part of the family of the employer. ^^ at the expense of the owners of the vessel in which
In statutes giving laborers a lien or priority, or a they emigrated.
special remedy, " laborer " means a person engaged Labor, ■bureau of. An act approved Jime 27,
in manual occupation, rather than one engaged in a 1884 (23 St. L. 60), provides that therei shall be estab-
learned profession. '" lished in the department of the interior a bureau of
Within the meaning of lien laws " labor" has been labor, to be under the charge of a commissioner of
held to include the services of an architect; '" but not labor, appointed by the President, with tbe consent
of the Senate. The commissioner shall hold office for
1 Weymouth v. Sanborn, 43 N. H. 173 (1861), Bellows, four years, and, until his successor shall be qualified,
Judge. unless sooner removed, at a salary of $3,000 a year.
"Brockway v. Innes, 39 Mich. 48 (1878); Peck v. He " shall collect information upon the subject of la-
Miller, ib. 697 (1878).
' Cincinnati v. Rice, 16 Ohio, 240-41 (1846). N. Y. 482; 37 id. 610; 76 id. 50; 35 Pa. 423; 90 id. 47.
' State V. Conger, 14 Ind. 396 (1860). Contra, 12 Bush. 75; 41 Me. 397; 6 Mo. Ap. 445.
s See 4 Bl. Com. 370. 377. 1 2 Monta. 443.
« Eeynolds v. United States, 98 U. S. 169 (1878). ' 38 Barb. 340; 39 Mich. 47; 84 Pa. 171.
■rHxp. Karstendick, 93 U. S. 393 (1876); United States = 16 Hun, 186; 17 id. 463. Contra, 11 Nev. 304; 104
V. Coppersmith, 3 Flip. 633 (1880). U. S. 177.
B Weaver v. Commonwealth, 3!) Pa. 448 (1857). See 181N. C. 340.
iSe Edwards, 43 N. J. L. 555 (1881), cases. i>46 N. Y. 521; 100 Pa. 550; 49 Wis. 169.
» Blume V. Bicbards, 2 Ohio St. 401 (185.3). ' 14 Kan. 566.
1" Pennsylvania, &c. R. Co. v. LeufEer, 84 Pa. 171 (1877); '77 Pa. 107. See generally Flagstaff Mining Co. v.
Caraker v. Mathews, 25 Ga. 570 (1858); Be Hoking, 8 Collins, 104 U. S. 177-79 (1881), cases.
° 2 Bl. Com. 5.
Saw. 439-40 (1883).
11 [1 Bl. Com. 426. « £lau3hter-House Cases, 16 Wall. 137 (1872), Swayne,
"18 La. An. 80; 13 Minn. 475; 86 N. J. E. 29, 389; 84 Judge.
 LACHES 593 LADINU

bor, its relation to capital, the hours of labor, and the cult to do justice, the case is one of " laches," and the
earnings of laboring men and women, and the means court will not relieve the plaintiff. ^
of promoting their material, social, intellectual, and The question is one of fact, is an equitable defense
moral prosperity." The secretary of the interior, upon determinable by the particular facts.'
the recommendation of the commissioner, shall ap- Laches is not imputable to the government: upon
point a chief clerk, at a salary of 82,000 a year, and considerations of public policy. The government acts
such other employees as may be necessary for the bu- through agents, and these are so numerous and scat-
reau. Dvu:ing the necessary absence of the commis- tered that the utmost vigilance would not save the
sioner, or when the office shall become vacant, the public from serious loss, if the doctrine applied.*
chief clerk shall perform the duties of the commis- The rule Is essential to the preservation of the inter-
sioner. The commissioner shall annually report in ests and property of the public. The state's agents
writing to the secretary of the interior the informa- have not the incentive of personal interest to prose-
tion collected and collated by him, and such recom- cute her claims.*
mendations as he may deem calculated to promote See Estoppel; Delay; Disability; Limitation, 3;
the efficiency of the bureau. Reform; Rescission; Stale.
See Author; Chinese; Employment; Lien, Mechan- LADING-. That which constitutes a
ic's; Material-man; Ocoupanot; Sertakt, 2; Strike,load; burden; freight.
2; Sdhday; Trade; Wages.
2, V. To influence a jury against its duty ; Laden. May not mean " fully " laden.s
Bill of lading. A contract by which a
to persuade a juror not to appear at court.
The first lawyer who came from England to prac-
common carrier engages to carry and deliver
tice in Boston is said to have been sent bacii; for goods to the consignee, or to the order of the
"laboring" a jury.
LACHES. 1 Neglect, negligence ; default.^ shipper.8
A written acknowledgment, signed by the
Inexcusable delay in asserting a right. master of a vessel, that he has received the
ATI infant loses nothing by non-claim or neglect to goods therein described from the shipper, to
demand his rights; nor, in general, shall any other
" laches " or negligence be imputed to him.' be transported on the terms therein ex-
Neglect to do something which by law a pres ed, tothe described place of destination,
and there to be delivered to the consignee or
man is obliged to do.*
Such neglect or omission to do what one parties therein designated. '
A receipt as to quantity and a description of the
should do as warrants the presumption that
and a contract to deliver them, acknowledg-
he has abandoned his claim, and declines to goods, ing the goods to be on board. As between the original
assert his right.s parties, being like a receipt, is open to explanation.'
Usually executed in triplicate: one part each for
The term implies knowledge of one's rights.'
The law of laches was dictated by experience, and the consignor, the carrier, and the consignee.
is founded m a salutary policy. The lapse of time Termed a " clean bill " when silent as to the place
carries with it the memory and the life of witnesses, of stowage. The understanding is that the goods are
the muniments of evidence, and other means of proof. to be stowed " under "deck; parol evidence of an
The law is necessary to the peace, repose, and welfare agreement tor stowage " on " the deck is inadmissible.*
of society.' A bill of lading is a symbol of property, and, when
If the case of the plaintiff, as stated in his bill, will properly indorsed, operates as a delivery of the prop-
not entitle him to a decree, the judgment of the court erty itself, investing the indorsee with a constructive
maybe required by demurrer whether the defendant custody, which serves all the purposes of an actual
ought to be required to answer the bill,' possession, and so continues until there is a valid and
Where, from delay, no correct account can be
taken, and any conclusion the court may arrive at ■ Wissler v. Craig, 80 Va. 22, 29 (1885), cases.
2 Pike V. Martindale, 91 Mo. 285 (1886), Ray, J.
must at best be conjectural, and the original trans-
action has become so obscured by lapse of time, loss ' United States v. Kirkpatrick, 9 Wheat. 735 (
Story, J.
of evidence, and death of parties, as to render it difB-
* Weber v. Harbor Comipissioners, 18 Wall. 70 (1873);
United States v. Thompson, 98 U. S. 489 (1878); United
■ F. lache, indolent, lax: L. laxus, loose. States V. City of Alexandria, 19 F. R. 609 (1882); United
5 [1 Bl. Com. 247; 3 id. 317; 4 id. 403. States V. Barnes. 31 F. R. 709 (1887), cases.
• [1 Bl. Com. 465. » Searight v. Stokes, 3 How. 169 (1846).
•Sebag V. Abitbol, 4 Maule & S. 463 (1816), Ellen- « [The Farwell, 8 Biss. 64, 71 (1877), Dyer, J.
borough, C. J. ' The Delaware, 14 Wall. 600 (1871), cases, Clifford, J.
« Wissler v. Craig, 80 Va. 30 (1885), Eiohardson, J. s See 14 Wall. 600, supra; 105 U. S. B, post; 1 Biss.
» Massie v. Heiskell, 80 Va. 805 (1885). 379; 5 Ala. 433; 3 Iowa, 103; 33 id. 32; 34 Me. 659; 16
' Brown v. County of Buena Vista, 95 U. S. 161 (1877), Mich 113; 9 Mo. 194; 4 Denio, 330; 14 Wend. 28; 12
Swayne, J. See also 77 Va. 576, 688. Barb! 310; 4 Ohio, 346; 28 Vt. 124; L. R., 2 C. P. 45.
s Lansdale v. Smith, 106 U. S. 392-93 (1883), cases. » 14 WaU. 602, 579, supra; 2 Whart. Ev. § 1070.
(38)
 LADING 594 LAND

complete deliveiy under and in pursuance of tlie bill consignee, he intends that the goods shall be delivered
of lading, to the person entitled to receive the prop- only upon payment of the draft.'
When Indefinite in its terms, a bill will be construed
erty.'
It is not a representative of money; does not pass reasonably, according to the presumed intention to be
from hand to hand as a bank-note or coin. It is a gathered from the situation of the parties, and their
contract for the performance of a certain duty, at the relations to the ship and to each other.'
same time that it is a symbol of ownership of the See Damage; Fkeight.
goods covered by it, a representative of those goods, LAGAN. See Ligan.
and regarded as so much cotton, grain, iron, or other LAITY. See Lay, 1.
merchandise which is sold or pledged by a transfer of
LAKE. See Riparian; Tide.
the bm."
A grant of land to a natural pond or lake extends
In the hands of the holder, a bill of lading is evi-
dence of ownership, special or general, of the property only to the water's edge. . . Mere proprietorship in
mentioned in It, and of the right to receive the prop- the surrounding lands will not, in all cases, give own-
erty at the place of delivery. Notwithstanding that it ership to the beds of natural non-navigable lakes, re-
is designed to pass from hand to hand, with or without gardless of their size. Each ease depends largely
indorsement, and is ef&cacious for its ordinary pur- upon its own facts. ^
poses in the hands of the holder, it is not a negotiable Xiakes Ontario, Erie, Superior, etc., are in-
land seas. Different States border on thern on one
instrument in the sense that a bill of exchange or a
side, and a foreign nation on the other. A great and
promissory note is negotiable. Its transfer does net
preclude, as with them, inquiry into the transaction in growing commerce is carried on upon them, subject
to all the incidents and hazards that attend commerce
which it originated, because it has come into the hands
on the ocean. Hostile fleets have encountered on
of a person who has innocently paid value for it. The
them, and prizes been made; and every reason which
doctrine of bona fide purchaser applies only in a lim-
ited sense. It may therefore be shown that neither exists for the grant of admiralty jurisdiction to the
the master of a vessel, nor the shipping agent had the general government on the Atlantic sea^ applies with
authority to bind the vessel or its owner by giving a equal force to the lakes. . . The lakes and the waters
bill for goods not received for shipment. ^ connecting them, although not tide-waters, are un-
The holder of a lost or stolen bill of lading is no doubtedly public^ waters, and within the grant of ad-
more protected in his title than the buyer of lost or miralty and maritime jurisdiction in the Constitution.*
See Admiralty; Sea, High.
stolen property.^
The transfer and delivery of a bill of lading of LAMB. See Sheep.
goods, by the consignee to a person who advances LAND. 1. Comprehends all things of a
money upon them, is not in effect a mortgage, but permanent, substantial nature ; being a word
vests in the lender a property in the goods which en-
titles him to maintain an action against one who of very extensive signification. ^ Eeal prop-
wrongfully converts them. It is not necessary for the erty; realty.
person to whom an inland bill is delivered for valu- All corporeal hereditaments — ground, soil
able consideration to take possession of the property or earth, with all objects under or upon the
upon its arrival, or to give notice to the person who
same, as, trees, herbage, water, minerals,
has the actual possession of the property. Delivery
to an unauthorized person, who does not produce the buildings. By the simple word "land"
bill, is a conversion.* everything terrestrial passes. *
Placing in a bill a direction to notify a certain per- Land often passes by other terms; as, house, mill,
son is a plain indication, in the absence of further messuage, gg. v.
directions, that he is not the consignee.* The ''tunnels, tracks, substructures, superstruct-
When a shipper attaches his bill to a draft upon the ures, stations, viaducts, and masonry " of a railroad
are " land," within the meaning of a tax law.'

> Hi'eskell -o. Farmers', &c. Bank, 89 Pa. 155 (1879), ' Wells, Fargo & Co. u Oregon Ey . & Nav. Co. , 33 F. E.
cases; Dows v. Nat. Exchange Bank, 91 U. S. 618, 629 54 (1887), cases; The John K. Shaw, ib. 491 (1887), cases,
(1876), cases; Moors v. Kiddet, N. Y. Ct. Ap. (1888): 37 = Gronstadt v. Witthofl, 15 F. E. 265 (1883).
Am. Law Reg. 107, 115-17, cases. » State of Indiana v. Milk, 11 Biss. 197, 806 (1883),
s Shaw V. North Pennsylvania E. Co., 101 U. S. 564 cases, Greshara, J. ; Forsyth v. Smale, 7 id. 301 (1876),
(1879), Strong, J.; Steiger v. Third Nat. Bank, a cases; Smith v. City of Rochester, 93 N. Y. 473 (1883),
McCrary, 499-500 (1881); Wertheimer v. Pennsylvania cases.
E. Co., 17 Blatch. 432 (1880), cases. * The Propeller Genesee Chief v. Fitzhugh, 12 How.
= Pollard V. Vinton, 105 U. S. 8 (1881), Miller, J. ; Iron 453, 457 (1851), Taney, C. J.; Act 36 Feb. 1846: 5 St. L.
Mountain E. Co. v. Knight, 123 id. 87 (1887); Seeligson 736. See also -The Hine v. Trevor, 4 Wall, 563(1866);
„. Philbrick, 30 F. E. 601 (1887). The Eagle, 8 id. 20 (1868).
4 Forbes v. Boston & Lowell E. Co., 133 Mass. 154^^8 •2B1. Com. 16; 3 id. 317.
(1882), cases, Morton, C. J. • 2 Bl. Com. 16; 38 Miss. 464; 1 N. Y. B64; 33 Ind. 403;
s Furman v. Union Pacific E. Co., 106 N. Y. 579 (1887); 6 Conn.. 517; 9 id. 377.
North Pennsylvania E. Co. v. Commercial Bank, 123 ' People, ex rel. New York & Harlem E. Co. «. Cpm-
U. S. 737 (1887). missioners, 101 N. Y. 323 (1886).
 LAND 395 LAND

Everything essential to the henefloial use and enjoy- Public lands. " The Congress shall have
ment of the designated property, in the absence of Power to dispose of and make all needful
language indicating a different intention in a grantor,
passes by a conveyance of the property.' Rules and Regulations respecting the Terri-
Lands. The same as land ; one piece will tory or other Property belonging to the
satisfy the term. 2 United States." i See Teebitory, 3.
Iianded. Consisting of realty: as, " Public lands " is habitually used in legis-
landed — estate, property, security. lation to describe such lands as are subject
"Landed estate" is an interest in or pertaining to to sale or other disposal under general laws.'''
lands. A "landed proprietor" is a person who has In the act of July 4, 1866, applied to aU unsurveyed
an estate in lands, whether highly improved or not.^ lands, whether previously granted or not, and distin-
Improved land. Reclaimed, cultivated guishes such lands from surveyed and segregated
lands, where the right of private proprietorship has
land ; land used for purposes of husbandry.
Wild land. Land in a state of nature.^ attached.'
The laws prescribe with partictdarity the manner
See Impkove ; Seated ; Vacant. in which portions of the public domain may be ac-
"Improved land " has no precise legal meaning.' quired by settlers. They require personal settlement
Interest in lands. In the Statute of upon the lands desired and their inhabitation and im-
Frauds, does not include ripe though un- provement, and a declaration of the settler's acts and
purposes to be made in the proper office of the dis-
gathered fruits, or crops annually removed ; trict, within a limited time after the public surveys
otherwise as to such produce of the soil as is have been extended over the lands. By them a land
capable of permanent attachment to it.^ See department has been created to supervise the steps
Frauds, Statute of. required for the acquisition of the title of the govern-
ment. Its officers are required to receive, consider,
Iiand warrant. The evidence in writing
and p^s upon the proofs furnished as to the alleged
which the state, on good consideration, gives settlements upon the lands, and their improvement,
that the person therein named (the war- when pre-emption rights are claimed, and, in case of
rantee) is entitled to the quantity of land conflicting claims to the same tract, to hear the con-
testing parties. The proofs offered in compliance with
specified.' the law are to be presented, in the first instance, to the
The issue of the warrant and the rights of the war-
officers of the district where the land is situated, and
rantee are regulated by statute. The application
marks the inception of the title, and prevails against from their decision an appeal lies to the commis-
a later settler with notice; but not so as to a warrant sioner of the general land-office, and, from him to the
secretary of the interior. For mere errors of judg-
and survey which differ from the application.'* ment as to the weight of evidence on these subjects,
Presumption of abandonment from neglect to re-
by any of the^subordinate officers, the only remedy is
turn a warrant is rebutted by possession in the war-
by an appeal to his superior of the department. The
rantee.'
A warrant descriptive of the land confers title from courts cannot exercise any direct appellate jurisdic-
date, if followed up with diligence in obtaining a tion ever the rulings of those officers or of their supe-
rior in the department in such matters, nor can they
survey,'" reverse or correct them in a collateral proceeding be-
Shifted land warrant. A warrant which
tween private parties. It would lead to endless litiga-
calls for the survey of other land than that tion, and be fruitful of evil, if a supervisory power
surveyed. were vested in the courts over the action of the numer-
When fairly made, returned, and accepted by the ous officers of the land department, on mere questions
proper authorities, holds the land from the time of of fact presented for their determination. It is/ only
acceptance, provided there is no intervening oppos- when those officers have misconstrued the law appli-
ing right." cable to the case, as established before the depart-
ment, and thus have denied to parties rights which,,
upon a correct' construction, would have been con-
1 Sheets v. Selden, 3 Wall. 187 (1884), eases. ceded to them, or where misrepresentations and fraud
' Birch V. Gibbs, 6 Maule & S. 116 (1817). have been practiced, necessarily affecting their judg-
» St. Mary v. Harris, 10 La. Afl. 677 (1855), Merrick, ment, that the courts can, in a proper proceeding, in-
Chief Justice. terfere and refuse to give effect to their action. . .
* Clark V. Phelps, 4 Cow. 303 (1835). The misoonstraction of the law, which will authorize
"> Bond V. Fay, 8 Allen, 315 (1864), Hoar, J. the mterference of the court, must be clearly mani-
• 1 Whart. Ev. § 866, cases. fest, and not alleged upon a possible finding of the
' Neal V. East Tennessee College, 6 Terg. 205 (1834).
8 Mix V. Smith, 7 Pa. 75 (1847); 5 Binn. 304. ' Constitution, Art. IV. sec. 3, cl. 3.
' Burf ord v. McCue, 63 Pa. 437 (1866). sNewhall v. Sanger, 92 U. S. 763 (1875), Davis, J.;
i« Fox V. Lyon, 37 Pa. 9 (1856); 33 id. 474; 34 id. 74; 43 Wirth V. Branson, 98 id. 118 (I878), cases.
id. 197; 73 id. 316. s Heydenf eldt v. Daney Minmg Co., 10 Nev. 314 (1875),
" Smith V. Walker, 98 Pa. 141 (1881). Hawley, C. J.
 LAND 596 LAND

_ facts from the evidence different from that reached is a matter of record, a copy of which may be so ^
by them. And where fraud and misrepresentations easily obtained that no necessity exists for accepting
are relied upon as grounds of interference, they should the receipt of a register as a substitute ; if never i ssued,
be stated with such fullness and particularity as to it is obvious that the title remains in the United States. ^
show that they must necessarily have affected the All that can be claimed as to the effect of documen' s
action of the officers of the department. ' of title 'executed by officers of the government is,
The testimony proving fraud in the government that they pass such an estate as the government it-
officials must be clear, unequivocal, and convincing. self, on whose behalf the official acts appear to have
A bare preponderance of evidence which leaves the been done, had at the time, but do not conclude the
issue in doubt is not sufficient. To raise a suspicion fact that the estate conveyed was lawfully vested in
of wrong-doing in its own officers, is not enough to
justify the government in casting upon the defendant, the grantor, 2
Lands granted by Congress to aid in the constmc-
alleged to be a bona jide purchaser for value without tion of railroads do not revert after condition broken
notice of the supposed fraud, the burden of establish- until a forfeiture has been asserted by the United
ing his title.* States, either through judicial proceedings instituted
The government can proceed by a bill in equity to under authority of law toj^ that purpose, or through
have a decree of nullity and an order of cancellation some legislative action legally equivalent to a judg-
of a patent issued in mistake, or obtained by fraud, ment of office found at common law. Legislation to
where it has a direct interest or is under obligation to be sufficient must manifest an intention by Congress
make good a title to an Individual, or duty to the pub- to reassert title and to resume possession. As it is to
lic requires such action. ^ take the place of a suit and a judgment estabhshing
There was a time when a party who settled in ad- the right, it should be direct, positive, and free from
vance of the public surveys was regarded as a tres- all doubt or ambiguity. 3
passer, to be summarily ejected. But all this has been When the United States acquire lands within a State
changed within the last half century. The settlers of by purchase,' with the consent of the legislature of
Oregon, and of California, organized a, provisional the State, for the erection of forts, magazines, arse-
government embracing guaranties of all private rights. nals, dock-yards, and other needful buildings, the
"When the laws of the United States were extended over Constitution confers upon them exclusive jurisdiction
the country, the regulations for the occupation of the of the tract; but when they acquire such land in any
land were respected, and the rights acquired under other way, their exclusive jurisdiction is confined tc
them recognized and enforced. In no instance have the the structures and land used for public purposes. A
claims of an intruder upon the prior bona fide posses- State making a grant may prescribe conditions not
sion of others, or in disregard of those rights, been inconsistent with the effective uses of the property
sustained. When the legal title has passed from the for the purposes intended; as, by reserving the right
United States to one party, when in equity, and in to tax private property within the limits of the tract,*
good conscience, and by the laws of Congress, it ought An act of Congress approved March 3, 1887 (24 St.
to go to another, a court of equity will convert the L. 476), provides that it shall be unlawful for any per-
holder into a trustee of the true owner, and compel son or persons not citizens of the United States, or
him to convey the legal title.* who have not lawfully declared their intention to be-
Congress has ttie sole power to declare the dignity come citizens, or for any corporation not created by
and effect of titles emanating from the United States. or under the laws of the United States or of some
All legislation declares the patent the superior and State or Territory, to hereafter acquire, hold, or own
conclusive evidence of legal title. Until its issuance, re&l estate so hereafter acquired, or any interest
the fee is in the government, which, by the patent, therein, in any of the Territories or in the District of
passes to the grantee, who may recover the possession Columbia, except such as may be acquired by inherit-
by ejectment.* ance or in good faith in the ordinary course of justice
The certificate which is given vests an equitable in the collection of debts heretofore created: £ro-
right to demand tte patent after such further proceed- vided. That the, prohibition of this section shall not
ings as the laws, and the course of business in the de-
partments, require. The fact of the issue of a patent
1 Langdon v. Sherwood, 124 U. S. 83 (1888), Miller, J.
See also Fenn v. Holme, 21 How, 488 (1858); Hooper v.
1 Quinby v. Conlan, 104 U. S. 425-26 (1881), cases, Scheimer, 23 id. 249 (1859); Foster v. Mora, 98 U. S. 425
Field, J.; Steel v. Smelting Co., 106 id. 450-52 (18S3), (1878).
cases; Johnson v. Towsley, 13 Wall. 73, 80-85 (1871), = Sabariego v. Maverick, 124 U. S. 283 (1888); Herron
Miller, J. V. Dater, 120 id. 464 (1886).
2 Colorado Coal & Iron Co. v. United States, 193 U. S. a St. Louis, &c. E. Co. v. McGee, 115 U. S. 473-74
807 (1887), cases, Matthews, J. See further Doolan v. (1885), cases, Waite, C. J.; New Orleans Pacific R. Co.
Carr, 125 id. 624r-35 (1888), cases. u. United States, 124 id. 129 (1888), cases; Soutl^ern
8 United States v. Ss^n Jacinto Tin Co., 125 U. S. 273 Pacific R. Co. V. Orton, 32 F. R. 457 (1879); Same v.
(1888); United States v. Beebe, 137 id. 342 (1888). Poole, ib. 451 (1887); Denny v. Dodson, ib. 899 (1887).
* Rector v. Gibbon, 111 U. S. 284-87, 291 (1884), cases, * Fort Levenworth R. Co. v. Lowe, 114 U. S. 525, 530,
Field, J. See especially Lamb v. Davenport, 18 Wall. 538 (1885), Field, J. ; Chicago, &c. R. Co. v. McGlinn,
307, 313-15 (1873). Miller, J. ib. 5i5 (1885); Foley v. Shriver, 81 Va. 568, 571-75 (1886),
6Bagnell v. Broderick, 13 Pet. 436 (1839). cases.
 LAND 597 LANDLORD

apply to cases in -whicli the right to hold or dispose of LANDING-. A place on a river or other
lands la the United States is secured by existing trea- navigable water for lading and unlading
ties to the citizens or subjects of foreign countries,
which rights, so tar as they may exist by force of any goods, or for the reception and delivery of
such treaty shall continue to exist so long as such passengers. . . The terminus of a road
treaties are in force, and no longer. on a river or other navigable water, for the
Sec. 2. That no corporation or association more
use of travelers, and the loading and unload-
than twenty per centum of the stock of which is or
may be owned by any person or persons, corporation ing of goods.'
or corporations, association or associations, not citi- Whether it is public or private, depends on the
character of the road which leads to it.'
zens of the United States, shall hereafter acquire or
hold or own any real estate hereafter acquired in any Either the bank or wharf to or from which
of the Territories or of the District of Columbia. persons or things may go from or to some ■
Sec. 3. That no corporation other than those organ- vessel in the contiguous water : or the yard
ized for the construction or operation of railways,
canals, or tumpilses shall acquire, hold, or own more or open place used for deposit and conven-
ient communication between the land and the
than five thousand acres of land in any of the Ten-i-
tories; and no railroad, canal, or turnpike corporation
shall hereafter acquire, hold, or own lands in any Ter- A road2 to it is essential to malce it public, unless
water.
ritory, other than as may be necessaiy for the proper where it may be used only in connection with trans-
operation of its railroad, canal, or turnpike, except portation bywater. Obstructing the road one hundred
such lands as may have been granted to it by act of yards from the landing is not obstructing the landing
Congress. But the prohibition of this section shall
not affect the title to any lands now lawfully held by A landing
itself. 2 for loading and unloading boats engaged
any such corporation. in the coal trade differs from that of a harbor or place
Sec. 4. That all property acquired, held, or owned to lay up boats empty or laden.s See Riparian.
in violation of the provisions of this act shall be for- LANDLORD. 1. He of whom land is
feited to the United States, and it shall be the duty of held subject to the rendering or payment of
the attorney-general to enforce every such forfeiture
by bill in equity or other proper process. And in any rent or service.* Correlative, tenant, q. v.
suit or proceeding that may be commenced to enforce One who owns lands or tenements which
the provisions of this act, it shall be the duty of the he has rented to another or others.
court to determine the very right of the matter with- In feudal times, the proprietor of lands. He gave
out regard to matters of form, joinder of parties, the possession and use to another person, in consider-
multifariousness, or other matters not affecting the ation of a return in services or goods, and retained the
substantial rights either of the United States or of the
ultimate property in the fee."* See Feud.
parties concerned in any such proceeding arising out Landlord and tenant. Describes the
of the matters in this act mentioned.
relation which subsists between the parties
Similar legislation has been enacted in several of
the Western States. to a contract for the occupation of land or
An act approved March 9, 1888 (26 St. L. 45), pro- buildings thereon.
vides that the foregoing act shall not apply to or oper- Arises by implication from the use of lands; or is
ate in the Iftstrict of Columbia, so far as relates to the created in express terms by a lease. Paying rent ac-
ownership of legations, or the ownership of residences knowledges, prima facie^ a tenancy.
by representatives of foreign governments, or at- Landlord's warrant. Written author-
taches thereof.
ity from a landlord, to a constable or other
See, as to public lands, Boontt; Domain, 1; Grant,
3; Patent, 3; Pre-emption; Proclamation, 2; Ee- person, to levy upon property of his tenant,
SEEVE, 3; Restore; School; Timber. and, within the time prescribed by law or by
See generally Abandon, 1; Air; Allitvion; Along; agreement, to make public sale of the same,
Conversion, 2; Covenant, Real; Crop; Dedication, 1 ; in order to constrain the tenant to observe
Deed, 2; Derelict; Description, 1; Domain, 1; Dona- one or more of the conditions in the contract
tion; Easement; Ejectment; Entry, I, III; Escheat;
Estate, 3; Eviction; Execution; Farm; Feud; Fixt- for ocqupancy, as, that he will pay rent as it
ures; Grant, 2, 3; Hereditament; Homestead; Ice; becomes due.
Inclose; Incumbrance; Lien; Map; Meadow; Mine; After the tenant has entered, the landlord's rights
Mineral; Mortgaoe; Nuisance; Occupy; Parcel, 2; respect the rent and the reversion. It the tenant is to
Partition; Railroad; Realty; Bun; Support, 2; repair, the landlord is not liable for a nuisance from
Survey; Take, 8; Tax, 2; Tenement; Tenure, 1; Title,
1 State V. Randall, 1 Strobh. Ill (S. C, 1846), Frost, J.
1; Trespass; Wall; Water; Woods. Compare
Solum; Terra. 2 State V. Graham, 15 Rich. L. 310 (S. C, 1868), Ward-
low, A. J.
3. Place; country; sovereignty; territo- s Hays v. Briggs, 74 Pa. 385 (1873).
rial jurisdiction: as, in inland, law of the ■> Hosford V. Ballard, 39 N. Y. 151 (1868).
land. 5 Patty V. Bogle, 69 Miss. 493 (1882).
 LANDMARK LARCENY
598

non-repair. The landlord's principal obligation is for The wrongful or fraudulent taking and
quiet enjoyment. Unless otherwise stipulated, he
carrying away by any person of the mere
pays taxes, municipal assessments, ground-rent, in-
terest upon a mortgage, and insurance. The tenant, personal goods of another, from any place,
upon entry, is invested with all the rights incident to with the felonious intent to convert them to
possession; must so use the premises as not to injtire his (the taker's) own use, and make them his
private persons or the public, or the owner's reversion ;
■and must make reasonable repairs. His estate may property, without the consent of the owner.'
A taking and a carrying away of personal
merge in the fee by his purchase or by descent, and
he may surrender his lea^e to the landlord. property with an intent to steal it.^
See further Disclaimer, 1; Dispakaqement, 3; Dis- Laroenist. One guilty of larceny.
tress; Ejectment; Emblements; Entry, I; Eviction; Larcenous. Of the nature of larceny.
FrsTDRES; Ground; Lease; Month; Quit, 2; Rent;
Grand larceny. Larceny of goods above
Tenant; Use, 2, Occupation; Waiver; Waste.
the value of twelve pence.*
LAIfDMAEK. See Mark, 1 (3); Monu- Mixed or eompound larceny. Includes
ment, 1.
LANDSCAPE. The law does not recog- the-aggravation of a taking from one's house
nize any easement or right of property in a or Petit
person. latceny.
3 When the goods are of
landscape or prospect.
Therefore the owner of a villa has no right to abate, the value of twelve pence or under.'
as a nuisance, a building which mars the prospect.' Simple larceny. Plain theft, unaccom-
S6e Light.
panied by any other atrocious circumstance.'
LANGrUAGE. See Art, 3; Construc- " Petit larceny " having ceased to exist in England
tion ;French ; Latin ; Libel, 5 ; ^lander. by 7 and 8 Geo. IV. (1827), o. 29; and largely in the
LANGUIDUS. L. Sick; ill. United States, the single word "larceny" means
" grand larceny," not of the compound sort. Further,
The return made by an officer, when a per- having no " simple larceny," we have no, use' for the
son, who is to be arrested, is so sick that to correlative " grand." *
remove him would endanger his health or life. Larceny is an offense against the right of private
Such defendant may be left in the charge of «• property. The " taking " implies a want of -consent in
deputy. the o^pner: therefore, a delivery to another upon trust
cannot become the ground of a larceny at common
LAPSE.2 A failure, defeat ; also, to fail, law. But if the bailee opens a package and takes
pass by or aside. away a part he is guilty of larceny; for then the
Lapsed. Failed in its destination; be- animo furandi is manifest. Nor was it, at common
come ineffectual. law, more than a breach of trust for a servant to run
Said of a devise or legacy when the de- away with
ment, 3. goods committed to him.* See Embezzle-
visee or legatee dies before the testator, or
There must be a " carrying away " — some removal
before a given age or event;' of land when from the place where the goods are found.' See
Carry Away.
the right to pre-empt it is lost.; of a patent
to land wjien a petitioner neglects to com- The intent must be " felonious " — aniyno furandi,
plete his applicatiron and secure a grant ; of a taking to use and return is a mere trespass.^
The property must be " personalty." At common
policy of insurance vi'hich is allowed to ex- law, taking a tree, flowers, fruit, or title-deeds is a
pire for non-payment of one or more premi- trespass upon the land. But it any such object was
ums; of time when a reasonable period in severed by the owner, or by the thief at another time,
which to assert a right has passeid. that act made it personalty. Statutes have made
felonious, appropriations of many such articles as, for-
LAECElSrY.* Theft; the felonious tak- merly, constituted trespasses.
ing and carrying away of the personal goods
12 East, PI. Cr. 553. "The most approved defini-
of another. 5 tion "— Ransom v. State, 22 Conn. *166 (18S3), Storrs, J.
2 Commonwealth o. Adaips, 7 Gray, 44 (1666), Met-
1 Bowden v. Lewis, 13 E. L 191 (1881); Aldred's Case, calf , J. See also State v. South, 28 N. J. L. 39-30 (1859),
9 Rep. .ir, 6, 58 &; 5 Coke, *58 (1611). cases. Green, C. J.; State v. Wingo, 89 Ind.' 206 (1883):
^ L. labi, lapsus, to fall, slip. 4 Cr. Law M. 661, 604-69 (1883), cases; 70 Ala. 9; 62 Cal.
s [3 Bl. Com. 513; 94 Am. Dec. 15S, cases; 13 East, 534; 141; 66 Ga. 193-94; 94 N. Y. 90, 95; 31 Hun, 58; 1 McAll.
9 B. Mon. 206. 196; 5 Cranch, C. C. 493; 3 Bish. Cr. L. § 757.
* Contracted from latrociny: L. latrociniujn, rob- « 4 Bl. Com. 229, 239; 59 Cal. 391.
bery: latro, a robber, free-booter,— 4 Bl. Com. 229. <■ 2 Bish. Cr. Law, %% 757-58, cases.
O. F. larrecin; F. larcin. The y is an English addi- » 4 Bl. Com. 230; 59 Miss. 279; 62 Wis. 63.
tion,— Skeat. « 4 Bl. Com. 231 ; 76 Mo. 245.
»4 Bl. Com. 229; 3 Coke, Inst. 107. '4 Bl. Com. 232; 82 'Ala. 51.
 LARGE 599 LAUNDRIES

Formerly, also, bonds, bills, notes, and otber evi- LATH. See Timber.
dences of debt, having no intrinsic value and not im- LATIN. Compare French.
porting property in the possession of the holder, were
Pleadings and records were at first written in the
not subjects ot larceny.
Latin language; later, in the Norman or law-French.
" Property " includes money, goods, chattels, things The arguments of counsel and the decisions of the
in action, and evidences of debt.* courts were likewise in Latin.
Nor, at common law, are animals, at their natural
" Law -Latin " is a technical language, easily appre-
liberty and unreclaimed, which are unfit for food, as, hended, and durable. On these accounts it is suited to
dogs ; for these a civil action for damages may be had.^ preserve memorials intended for perpetual rules of
Obtaining possession of personalty by fraud, with action.
Intent to convert the same to one's own use, the owner In the time of Cromwell (1649-60), recordswere writ-
intending to part with the possession only, is larceny.' ten in English. Upon the restoration of Charles n (1660),
See Crime; Decoy; Indictment; Lucrum; Pre- that innovation was discountenanced: practitioners
tenses, False; Robbery. found the Latin the more concise and significant.
IiABGE. See At Large; Enlarge; Statute of 4 Geo. n (1730). c. 26, directed that proceed-
Great; Gross. ings should again be written out in English, that the
IiASCIVIOUS.-' Lustful ; wanton ; lewd. common people might understand somewhat of proc-
Any wanton act between persons of different sexes, esses, pleadings, record entries, etc. But the transla-
who are not inter-married, originating in lustful pas- tions of many phrases, names of writs and processes
sion, and not otherwise punished as a crime against (such as nisi prius, fieri facias, habeas corpus),
sounded so ridiculous that, two years later, by 6 Geo.
chastity or public decency, is called " lascivious car- n, c. 14, all technical terms were allowed to remain in
riage." May also include an indecent act against the
will of another.' Latin, As regards its technical expressions, the law
To sustain an indictment under the Virginia act of merely stands upon the same footing as other studies.*
1878, forbidding lascivious cohabitation, the evidence The conciseness, expressiveness, and condensability
must establish that the parties, not being married, of the Latin language fitted it for preserving the prin-
lewdly and lasciviously associated and cohabited, that ciples of jurisprudence. The civil and canon laws
is, hved together in the same house and as man and were in Latin, and quoted in the original, as often aa
translated. After the Conquest, the conflict between
wife live together.' See Lewd; Morals.
LAST. See Said ; Will, 3. Saxon and French promoted the use of an available
neutral speech. As the use and knowledge of Latin
LATE. 1. Existing not long ago, but declined, misuse of its terms became frequent. See
Arhaiqn.
now departed this life:'' as, the late A. B.
2. Last or recently in a place: as, A. B, LAUlfCH. A vessel already in the water
late a resident, etc.s cannot be " launched," the meaning of which
3. Recently in office : as, A. B, late sherifif. in such cases is, " to cause to move or slide
Compare Ex, 2.
from the land into the water." 2
LATENT.9 1. ijTot observable; not ap- LAUNDKIES. See Chinese.
parent: as, latent defects in an article of A city ordinance which makes it an oflfense to keep
merchandise or machinery, or in an animal. a laundry wherein clothes are cleansed for hire, within
the limits of the larger part of a city, without regard
See Caveat, Emptor; Negligence. to the character of the structure or the appliances
2. Applying equally to two or more differ- used for the purpose, or the manner in which the oc-
ent things; opposed to patent: as, a latent cupation iscarried on, is unconstitutional.'
ambiguity, q. v. To make an occupation, indispensable to the health
and comfort of civilized man, and the use of the prop-
LATERAL.!" Proceeding from, or con-
erty necessary to carry it on, a nuisance, by an arbi-
nected with, a side or one side : as, a lateral trary declaration in a city ordinance, and suppress it
railroad, lateral support, qq. v. Compare as such, is to confiscate the property and to deprive
Bilateral; Collateral. its owner of it without due process of law. It also
abridges the liberty of the owner to select his own oc-
1 Cal. Penal Code, § 7: 70 Cal. S33. cupation and methods in the pursuit of happiness, and
»4B1. Com. 332-^5; 72 N. Y. 349, infra. thereby prevents him from enjoying his rights, privi-
'Commonwealth n, Barry, 124 Mass. 325 (1878): 125 leges and immunities, and deprives him of the equal
id. 393 (1878), cases; Phelps v. People, 72 N. Y. 334, 348 protection of the laws, secured to every person by the
(1878), cases.
* L. lascivus: laxits. loose. Constitution.'
The ordinances of San Francisco giving the board
' [Bouvier's Law Diet. of supervisors authority, in theii" discretion, to refuse
•Jones V. Commonwealth, 80 Va. 18, 20 (1885), cases.
'Pleasant v. State, 17 Ala. 191 (1850), Dargan, C. J.
8 Beckett v. Selover, 7 Cal. 2.33, 226 (1857). ' 3 Bl. Com. 317-23; 4 id. 418.
" L. latens: latere, to lie hid. a Homer v. Lady of the Ocean, 70 Me. 352 (1879).
■i" L. latus, a side. ' Be Sam Kee, 31 F. E. 680 (If 87), Sawyer, J.
 LAW
LAW 600

permission to carry on laundries, except when located The primary end of law is to maintain and regulate
in buildings of brick or stone, are unconstitutional.' the absolute rights of individuals.'
So is an ordinance providing that permission shall The law is a science which distinguishes the criteri-
be granted only upon recommendation of twelve citi- ons of right and wrong, and teaches to establish the
zens and taxpayers in the particular block.^ one and to prevent, pimish, or redress the other. "
So is an ordinance which makes it an offense for Locke's division of law: divine law — the law of
any person to carry on a laundry for pay, within the God, natural or revealed; civil law — the municipal
habitable portion of the oity.^ law; law of reputation — morality.
But an ordinance prohibiting washing and ironing Austin's division: divine law — the revealed law of
between certain hours of the night may be constitu- God; positive human law — municipal law; positive
tional.^ morality — morality; laws metaphorically so called —
LAW.5 1. A rule of action dictated by a the laws of animate and inanimate nature.*
superior being." The command of a su- The "laws of a state" usually mean the
rules and enactments promulgated by the
perior.'
A command addressed by the sovereign of legislative authority thereof, or long estab-
the state to his subjects, imposing duties, and lished local customs having the force of laws.
enforced by punishments.^ The decisions of the courts are only evidence
Laws are made for the government of actions.* of what the laws are.*
The parts of a law are: the " declaratory " part, The term " laws " includes not only writ-
which defines the right to be observed and the wrong ten expressions of the governing will, but
to be eschewed; the " directory " part, which enjoins also all other rules of property and conduct
observance of the right and abstaining from the
wrong ; the ' ' renjedial ' ' part, which provides a method in which the supreme power exhibits, and
to recover a right or to redress a wrong; and, the according to which it exerts, its govern-
"vindicatory" part, which prescribes the penalty for mental force.5
a transgression.'" Natural law, or law of nature. The
3. In an important use "law" excludes rule of human action prescribed by the Cre-
the methods and remedies peculiar to equity
ator, and discoverable by the light of reason."
and admiralty, and confines the idea to the Divine or revealed law. The law of
action of tribunals proceeding by fixed rules,
and employing remedies operative directly nature, imparted by God himself."
Law of nations, or international law.
upon the person or property of the individ- The law which regulates the conduct and
ual ; as, in the expressions, a court of law, a
mutual intercourse of independent states
remedy at law, an action at law, at law.ii
Compare Common Law. with each other by reason and natural jus-
3. A positive law; an enactment; an act
Law of the flag. The law of the nation to which
of the legislative department of government ; atice.'
vessel belongs.
a statute. 12 Civil law. The law of citizens : the law
4. " Law " and " the law " frequently refer which the people of a state ordain for their
to systematized rules of action, — the science own government.
of jurisprudence as a study or a profession.
(1) By " the civil law," absolutely taken, is
understood the civil- or municipal law of the
' Tick Wo V. Hopkins, 118 TJ. S. 366, 365 (1886), Mat-
thews, J. Roman empire, as comprised in the institute,
« Be Quong Woo, 13 F. R 339 (1883), Field, J. code, and digest of the emperor Justinian,
'Be Tie Loy, 26 F. E. 611 (1886) — Stockton Case, and the novel constitutions of himself and
Sawyer, J.
* Soon Hing v. Crowley, 113 U. S. 703 (1885), Field, J. ; predecessors.*
Whatever strength these Imperial laws may have
Barbier v. Connolly, ib. 87 (1885). obtained in Great Britian is due to immemorial usage
' A. S. lagu, that which is laid, set, fixed: L. lex.
Compare Statute, Constitution. ' [1 Bl. Com. 124.
• 1 Bl. Com. 3S. = [1 Bl. Com. 27. See 25 Tex. 353.
' 1 Shars. Bl. Com. 39. ^ Austin, Jurisp., Lect. I, sec. 8. See Maine, Anc.
8 3 Stephen, Hist. Cr. Law Eng. 76: Austin. Law, Ch. v.
» Reynolds v. United States, 98 U. S. 166 (1878), Waite, * Swift V. Tyson, 16 Pet. 18 (1848), Story, J.
Chief Justice. « Phelps V. The City of Panama, 1 Wash. T. 523
'» [1 Bl. Com. 63. (1877), Greene, A. J.
' ' [Abbott's Law Diet. ; Atistin v. Butland E. Co., 17 » 1 Bl. Com. xxiv, 39-43; 11 Ark. 527; 64 Am. Dec. 817.
F. E. 469 (1883). ' ' 1 Bl. Com. xxiv, 43.
" See Walter v. Greenwood, 29 Minn. 89 (1883). 8 1 Bl. Com. 80, 14: 5 La. 493.
. LAW 601 LAW

in particular cases and in particular courts, or to in- vate " law which affects an individual or a small num-
troduction byexpress consent o£ Parliament.' See ber of persons.'
Pandects. Legislative acts concerning public interests are
(2) The laws which a community or state necessarily " public " laws. These may be abolished
has established for the regulation of its own at the will of the legislature. . . The Dartmouth
College Case has no application where a statute is a
affairs, as distinguished from the law of na- public law relating to a public subject within the do-
tions ;also, that portion of such laws which minion of the general legislative power of the State,
regulates dealings between subjects or citi- and involving the public rights and public welfare of
zens, in distinction from criminal law, mili- the entire community.'' '
tary law, maritime law, and the general Foreign law. A law of another sover-
law-merchant. Compare Municipal Law. eignty or nation.
Organic law. The fundamental law of Foreign laws and usages are to us matters of fact,*
and must be proved as facts; but not so with the law
a community or state; whether written or
unwritten. of nations.*
The existence of a foreign law is not judicially no-
Positive law. May refer to law actually ticed, unless proved as a fact. A written law is proved
existing at a given time, or to enacted law. by a copy properly authenticated; unwritten law, by
the testimony of experts, that is, by those acquainted
General law. Relates to a whole genus with the law. As to the manner of authentication
or kind, to a whole class or order. Opposed, there is no general rule, except this: that no proof
local or special law. See Public Law. shall be received which presupposes better attainable
A law which aflfeots a class of persons or things less testimony. A written law may be verified by an oath,
than all, may be a " general " law.^ or by an exemplification of a copy, under the seal of
A general law may not import universality in the the state, or by a copy proved to be a true copy by a
witness who has examined and compared the copy
subjects or in its operation. ^
General laws relate to or bind all within the juris- with the original, or by a certificate of an officer au-
diction o£ the law-making power, limited as that power thorized to give a copy, the certificate being duly
may be in its territorial bperation or by constitutional proved. But these modes are not exclusive of others,
restraints. * especially of codes and accepted histories.'
A "special" law is such as, at common law, the The courts of one state not being presumed to know,
courts would not notice unless it were pleaded and are not bound to take judicial notice of, the laws of
proved like any other fact.* another State. In this respect they are foreign to each,
That a statute be " public " it is not necessary that other. The Supreme Court, exercising an appellate
it be equally applicable to all parts of the State. All jurisdiction, takes judicial notice of the laws of every
that is required is that it apply to all persons within State, because those laws are known to the court
the territorial limits described in the act. " Special " below as laws alone, needing no averment or proof.*
See Comity; Faith and Credit.
laws provide for individual cases. "Local" laws,
while applicable to all persons, are confined in their Municipal law. The rule of civil con-
operation to certain prescribed or defined territorial duct prescribed by the supreme power in a
limits.'
(1) International law. state, commanding what is right and prohib-
Public law.
involving public interests. Op- iting what is wrong;' also, the laws of a
locality.
(2) A law
posed, private law: a law for the benefit of The municipal laws of England are the unwritten
an individual or individuals.
or common law, and written or statute laws.' See
In one sense " public " law designates international Written Law.
law, as distinguished from the laws of a particular Pertains solely to the citizens and inhabitants of a
nation or state; and in another sense, a law or statute state, and is thus distinguished from political law.
that applies to the people generally of the nation or
' Morgan v. Cree, 46 Vt. 786 (1801), Peck, J.
state adopting or enacting it, as opposed to a "pri- ' Newton v. Commissioners of Mahoning County, lOO
' 1 Bl. Com. 80, 14; 6 La. 493. U. S. 557-69 (1879), cases, Swayne, J.
= Brooks V. Hyde, 37 Cal. 376 (1809), Sanderson, J. 8 Dainese v. Hale, 91 U. S. 20 (1875).
' Van Eiper v. Parsons, 40 N. J. L. 8 U878), Beasley, < The Scotia, 14 Wall. 186(1871).
C. J.; ji). 126. ' Ennis v. Smith, 14 How. 420 (1852), coses, Wayne, J. ;
'Sedgwick, Stat. & Const. Law, 30: People v. Pierce u Indseth, 106 U. S. 651(1882); 1 Whan. Ev.
Cooper, 83 111. 569 (1876); 102 id. 219, 229. §§ 287-316, cases.
' Hingle v. State, 24 Ind. 34 (1865), Frazer, J. ; 26 id. « Hanley v. Donoghue, 116 U. S. 4, 6 (1886), cases.
431; 27 id. 95. Gray, J.; Fourth Nat. Bank v. Francklyn, 120 id. 751
« State 1!. Commissioners of Baltimore County, 29 (1887). See generally 19 Cent. Law J. 226-29, 242-47
Md.,620 (1868), Alvey, J. See also 17 Cal. 547: 19 Iowa, (1884), eases.
43; 22 id. 391; 26 id. 340; 46 N. J..L. 473,513; 39 N. J. E. ' 1 Bl. Com. 44; 15 Barb. 114.
126,391; 106 Pa. 377. 8 1 Bl. Com. 63.
 LAW
LAW 602

commercial law, and the law of uations. Is now more The term may be used in distinction to
usually applied to the customary laws that obtain in
any particular city, or province, and which have no "statute law," to "equity law," and the
authority in neighboring places.^ "Roman law" or "civil law."
Defines the just and necessary limits of natural Every country has its common law. Ours is com-
liberty, 2 posed partly of the common law of England, and
A city ordinance (g. v.) is not a law in this sense. partly of our own usages. When our ancestors emi-
A constitution is a law in the sense that no State grated from England they took with them such of
shall pass any law impaiiing the obligation of con- the English principles as were convenient for the situ-
tracts.' See further Impair. ation in which they were about to place themselves. . .
Common law. The law common to all By degrees, as circumstances demanded, we adopted
the English usages, or substituted others better suited
the realm. A collection of maxims and cus- to our wants, till at length, before the time of the rev-
toms, of higher antiquity than memory or olution, we had formed a system of our own, founded
history can reach.* in general on the English constitution, but not without
Nothing else but custom, arising from the considerable variations. ^
The common law of England is not to be taken in
universal agreement of the whole commu- all respects as that of America. Our ancestors brought
nity. * with them its general principles, and claimed it as
Custom handed down by tradition, use, their birthright; but they brought with them and
adopted only that portion which was applicable to
and experience. 6 See Unwritten Law.
Reason dealing by the light of experience their situation.''
The common law of England can be made part of
with human affairs.^ our Federal system only by legislative adoption. The
A system of elementary principles and of United States has no common law. Each State may
general juridical truths, which are continu- have its own local customs and common law. The
power of the United States is expressed in the Con-
ally expanding with the progress of society. 8 stitution, laws, and treaties. The English common
Common law develops with new ideas of law was adopted by the original Thirteen Colonies only
right and justice.' so far as it suited their conditions, from which circum-
Common law grows out of the general stance what is common law in one State is not so con-
customs of the country, and consists of defi- sidered inanother. The judicial decisions, the usages
and customs of the respective States, determine to
nitions of them and of those ancillary prin- what extent the common law has been introduced into
ciples that naturally accompany them, or are
deduced from them. The common law of each State.'
The old common law is the basis of all State laws,
our country or century is not necessarily the modified as each sees fit.*
It has been repeatedly held that the common law of
common law of another, because customs
England, up to the time of the Declaration of Inde-
change. It is a sort of law created by the pendence, isas much a part of our system of juris-
people themselves. When the judges de- prudence asit is of that of Great Britain. The decis-
clare it, they merely discover and declare ions of the common-law courts of the counti-y show
what they find existing in the life of the what that common law is. We have modified the law
people as a rule of their relations. When by enactments and practice.*
The common law being the substratum of the juris-
the custom ceases, the law ceases. It is this prudence ofthe Thirteen States by which the Constitu-
law that people emigrating take with them — tion was adopted, and the framers being educated
by tacit adoption, as far as is consistent with under it, the terms of the -instrument are to be con-
their new circumstances, i" strued by the common law.*
Nor have the Federal courts jurisdiction of com-
mon-law offenses. The laws of the Federal govern-
1 fWharton's Law Diet.
> [1 Shars. Bl. Com. 12T. 37 id. 19. See also Jacob v. State. 3 Humph. 514-15
= Ohio, &c. E. Co. ■«. McClure, 10 Wall. 515 (1870); (1842); Morgan v. King, 30 Barb. 13-15 (1858).
Pacific E. Co. V. Maguire, 20 id. 36 (1873); Lehigh Val- ' Guardians of the Poor v. Greene, 6 Binn. *558 (1813),
ley E. Co. V. McParlan, 31 N. J. E. 723 (1879); Fiskti. Tilghman, C. J.
Jefferson Police Jury, 116 U. S. 135 (1886). 2 Van Ness v. Pacard, 2 Pet. *144 (1829), Story, J. See
' 1 Bl. Com. 67; 2 id. 95. also 1 Story, Const. § 157; State v. Eollins, 8 N. H. 561
' [1 Bl. Com. 472. (1837); Clawson v. Primrose, 4 Del. Ch. 652-53 (1873);
« [1 Bl. Com. n. Chisholm v. Georgia, 2 Ball. 435 (1793).
' Diokerson v. Colgrove, 100 U. S. 581 (1879), Swayue, J. ' Wheaton v. Peters, 8 Pet. »658-59 (1834), M'Lean, J.
■ » P.erce v. Proprietors of Swan Point Cemetery, 10 * The Lottawanna, 21 Wall. 672 (1874); Clark v. Clark
E. I. 240 (1872). 17 Nev. 128 (1882).
1 Hurtado v. California, 110 U. S, 5.31 (1884). " Brown v. Philadelphia, &c. E. Co., 9 F. E'. 185 (1881).
'" Efanger v. Lewis, 32 Pa. 369 (1859), Lowrie, C. J. ; " 1 Shars. Bl. Com. 66-67.
 LA.W 603
LAW

oient, as stated, are embodied in the Constitution, acts several States each for itself, applied as its local law,
of Congress, and treaties made by its authority.' and subject to such alteration as may be provided by
The Federal courts do not enforce the common law its own statute. A determination in a given case of
in municipal matters in the States because it is Fed- what that law is may be different in a court of the
eral law, but because it is the law of the State.' United States from that which prevails in the judicial
The common law is necessarily referred to by the tribunals of a particular State. This arises from the
Federal authorities for definitions.* It is- a general circumstance that the courts of the United States, in
repository of rules, principles, and forms.* cases within their jurisdiction, where they are called
Because the Federal criminal jm-isprudence has no upon to administer the law of the state in which they
substantum of common-law crimes upon which to sit or by which the transaction is governed, exercise
draw for elements of an offense, the com-ts must fol- an independent though concurrent jurisdiction, and
low the statutes exclusively; using the common law, are required to ascertain and declare the law accord-
if necessary, only for definitions of terms.' ing to their own judgment. . . There is, however,
When acts of Congress use words which are famil- one clear exception to the statement that there is no
iar in the law of England, they are supposed to be national common law. The interpretation of the Con-
used with reference to their meaning in that law.' stitution isnecessarily infiuenced by the fact that its
By " common law " and " law," the tramers of the provisions are framed in the language of the English
Constitution meant not merely suits which the com- common law, and are to be read in the light of its
mon law recognized; but suits in which legal rights history. The code of constitutional and statutory
were to be ascertained and determined, in contradis- construction which, therefore, is gradually formed by
tinction to those where equitable rights and remedies the judgments of the Supreme Court, in the applica-
were regarded; or, where, as in admiralty, a mixture tion of the Constitution and the laws and treaties
of public law and of maritime law and equity were made in pursuance thereof, has for its basis so much
often found in the same suit.' See Judicial, Power. of the common law as may be implied in the subject,
While we have no general system of judicial na- and constitutes a common law resting upon national
tional common law, in matters not subject to judicial authority.'
jurisdiction, we have a complete system of "execu- One of the merits of the common is that, instead
tive national common law," which frequently differs of being a series of detailed practical rules, estab-
from the common law administered in the courts. lished by positive provisions, and adapted to the pre-
In the administration of the various executive depart- cise circumstances of particular cases, which would
ments, usages have prevailed and are growing up; become obsolete when the course of business ceased
national and international comraon-law principles or changed, it consists of a few comprehensive princi-
have been, and are being, announced and settled; con- ples, founded on reason, natural justice, and enlight-
sti'uction has been, and is being, given to all the writ- ened public policy, modified and adapted to the cir-
ten laws, — an entire system of executive national cumstances ofall the cases which fall within it. These
common law is in full operation. This grows put of general principles are rendered precise, specific^ and
executive administration, and the perfect independ- adapted to practical use, by usage, which is the proof
ence of co-ordinate departments.^ of their general convenience, but still more by judicial
There is no common law of the United States, in exposition; so that, when in a course of proceeding by
the sense of a "national customary law," distinct tribunals of the highest authority, the general rule has
from the common law of England, as adopted by the been modified, limited and applied, according to par-
L .^ —
ticular cases, such exposition, when settled and acqui-
' Pennsylvania v. Wheeling Bridge Co., 13 How. 5G3
esced in, becomes itself a precedent, and forms a rule
<18B1), M'Lean, J. of law for future cases under like circumstances. The
2 Transportation Co. v. Parkersburg, 107 U. S. 700 effect of this expansive character of the common law
<1862), Bradley, J. See Livingston v. Jefferson, 4
is, th^t while it has its foundations in the principles of
Hughes, 606 (1811); 1 Kent, 378.
' United States v. Durkee, 1 McAllister, 801 (1856). equity, natural justice, and that general convenience
* Commonwealth v. Webster, 5 Cush. 303, 3i3 (1650). which is public policy,— although these general con-
siderations would be too uncertain for practical pur-
» United States v. De Groat, 30 F. E. 766 (1887), Ham-
mond, J. poses, in the business of an active commimity, — yet
the rules of that law, so far as cases have arisen and
• United States v. San Jacinto Tin Co., 125 U. S. 280
practices actually grown up, are rendered precise and.
<1888). The Judiciary Act of 1789, § 3, which created
certain by usage and judicial precedent. Another con-
the office of attorney-general, without accurate defini- sequence is,that when new practices spring up, new
tion of his powers, in saying that " there shall be ap- combinations of facts arise, and cases are presented
pointed ameet person, learned in the law," etc., must for which there is no precedent in decision, they must
have had reference to the similar ofBee, with the same
be governed by the general principle, applicable to
designation, existing under the English law. And see, cases most nearly analogous, but modified and adapted
as to a treaty between Mexico and the United States, to new circumstances, by considerations of fitness and
Benson v. McMahon, 127 U. S. 466 (1888).
propriety, of reason and justice, which grow out of
' Parsons v. Bedford, 3 Pet. *447 (1830), Story, J. See those circumstances. Hence, when a new practice or
Fenn v. Holme, 21 How. 486 (1858), cases; Ellis v. course of business arises, the rights and duties of
Davis, 109 U. S. 497 (1883), cases.
8 3 Lawrence, Compt. Dec. xxii-iv; United States ' Smith V. Alabama, 124 U. S. 478 >, cases. Mat-
V. Macdaniel, 7 Pet. *15 (1833). thews, J.
 LAW
LAW 604

parties are not without a law to govern them; the only in particular courts, and under the con-
general considerations of reason, justice, and policy, trol of the common and statute la^s; naniely,
which underlie the rules of the common law, will stUl
the Roman civil, and canon laws. (3) The
apply, modified and adapted, by the same considera-
tions, to the new circumstances. If these are such as written or statute law; being acts of legis-
give rise to litigation, they, like previous cases, soon lative bodies, to supply what is defective, or
come to be settled by jtidicial exposition, and the to amend what is amiss, in the unwritten
principles thus settled come to have the efEect of pre- laws.i See Statute.
cise and practical rules, i
Law of the land. (1) The general public
La'w of the States. The general system law of a State, binding upon all the members
of law regulating the relative rights and
duties of persons within the jurisdiction of of the community under all circumstances,
and not partial or private laws, affecting the
a State, operating upon tham even when
engaged in inter-State commerce, and sub- rights of private individuals or classes of in-
ject to be modified by State legislation, dividuals.^ Also, due process of law. See
whether consisting in that customary law Process, 1, Due, etc.
which prevails as the common law of the (3) " This Constitution, and the Laws of the
laud in each State, or as a code of positive United States which shall be made in pursu-
provisions expressly enacted, is nevertheless ance thereof ; and all Treaties made, or which
the law of the State in which it is adminis- shall be made, under the Authority of the
tered, and derives its force and efEect from United States, shall be the supreme Law of
the actual or presumed exercise of its legis- theThisLand."
means 3that the Federal Constitution, laws and
tative power. treaties, are to be of jjaramount obligation when State
< This law does not emanate from the authority of the
and Federal laws conflict — the principle on which the
National government, nor flow from the exercise of
authority of the Constitution is based.* See Govern-
any legislative powers conferred upon Congress, nor ment.
can it be implied as existing by force of any other leg- The term "law " accompanies many common words
islative authority than that of the several States in
which it is enforced. It has never been doubted that as ^ prefix or adjective, in senses largely self-explan-
atory: as, la.w-adviser, law-blanks, law-c/erfc, la.w-fii~m,
this entire body and system of law, regulating in gen- layr-publications, la.vf^writer, l&w-language, law-
eral the relative rights and duties of persons witliin
terms, \&vi-Latin, l&yf-judge, law-ma.Tims, law-mafcer,
the territorial jurisdiction of the State, without regard
law-o.^cer, layf -practice, \&w-reports, law-stde, law-
to their pursuits, is subject to change at the will of the student.
legislature of each State, except as that will may be Maxims: The contract makes the law. The law
restramed by the Constitution of the United States. It
aids the vigilant; forces no one to do a vain, useless,
is to this law that persons within the scope of its oper- or impossible thing; injures no one ;— never works an
ation look for the definition of their rights and for the
redress of wrongs. It is the source of all those relative injury; does nothing in vain; regards not trifles; re-
gards equity; always gives a remedy; speaks to all
obligations and duties enforceable by law, the observ- with one mouth — is no respecter of persons. What is
ance of which the State undertakes 'to enforce as its
just and right is the law of laws.
public policy. And it was in contemplation of the con-
tinued existence of this separate system of law in each Law day. The day appointed in a mort-
State that the Constitution was framed and ordained gage for the payment of the money; orig-
with such legislative powers as are therein granted inally, the time after which all legal rights
expressly or by reasonable implication. 2 were to be forfeited.*
Written law; Tinwritten law. The mu- Compare Lex. See By-law ; Canon ; Chtieoh ; Code ;
nicipal laws of England are : (1) The unwrit- Commebcial; Constitotion; Lykoh; Maritime; Mar-
ten or common law, which includes customs, tial; Merchant; Military; Pamphlet; Political.
See also Act, 3; Bill, II; Conflict; Court; DbciS'
general and particular, and particular laws.
General customs, or the common law prop- ' [1 Bl. Com. 63-91, xxiv.
erly so called, are founded on immemorial " Millett V. People, 117 111. 301 (1886), cases, Sohol-
universal usage, whereof judicial decisions field, J. See also 61 111. 118; 5 Mich. 264; SO Miss. 479;
are the evidence. Particular laws are such 48 N. H. 61; 20 Barb. 199; 67 Pa. 479; 6 E. L 146; 5
Heisk. 189; 30 Wis. 146.
as, by special custom, are adopted and used ^ Constitution, Art. VI, par. 2.
' Norway Plains Co. v. Boston, &c. E. Co., 1 Gray, \£a5). Siebold, 100 U. S. 399, 392 (1879), Bradley, J.;
337-^8 (1P54), Shaw, 0. J. See also, in general, 22 Am. Exp. Wall, 107 id. 289 (1882); 21 Cent. Law J. 147-48
Law Rev. 1-29, 30-S6, 57-65 (1888); 21 id. 270-84 (1887). (1885), cases; Cooley, Const. Lim. 353.
= Smith V. Alabama, 124 U. S. 475 (1888), Matthews, » Kortright v. Cady, 21 N. Y. 345, 366, 367 (1860); 11 id.
Justice. 365; 10 Conn. 280; 24 Ala. 149; 70 id. 265-66; 17 F. E. 778.
 LAWFUL LEAD
605

ion; Forum; Judge; Judgment; Jury; Lawful; LAWYER.' A popular term for a per-
Lawyer; Learned; Outlaw; Flace, 1; Prescrip- son whose business it is to know and to prac-
tion, 1; Protection; Provided; Kelioion; Repeal;
Retrospective; Right; Road, 1; Sanction; Techni- tice law : give advice, prepare papers, con-
cal; Uniform. duct proceedings, etc.
LAWFUL. In accordance with the law The term does not discriminate between the func-
tions of an advocate, attorney, barrister, counsellor,
of the land ; according to the law ; permitted,
conveyance, proctor, and solicitor.
sanctioned, or justified hy law. Any person who, for fee or reward, prosecutes or
Unlawful. Implies that an act is done or defends causes in coiuis of record, or other judicial
tribunals of the United States, or of any of the States,
not done as the law allows or requii-es.i or whose business is to give legal advice in relation to
"Lawful," "unlawful," and "illegal," refer to
tiiat which in its substance is sanctioned or prohibited any cause or matter whatever." See Attorney.
by the law. " Legal " occasionally refers to matter LAY. 1, adj. (1) Pertaining to the laity;
of form alone. Thus, an oral agreement to convey not of the legal profession.
land, thougfi void by law, is not "unlawful:" it is Layman. A person not admitted to prac-
" illegal," because not in lawful form."
"Lawful" properly implies a thing conformable tice law ; one not learned in the law.'
to or enjoined by law; " legal," a thing in the form or (3) Not ecclesiastical ; organized for secular
after the manner of law or binding by law.' See fur- purposes : as, a lay corporation, q. v.
ther Legal. 3, V. To state, name, allege, charge: as, to
A "lawful" writ, warrant, or other process does
not imply a process legally sufficient, but is the same lay an offense, damages, venue.* Compare
Lie, 1 (3).
as "legal" process or process "of law." A writ or
warrant issuing from any court, under color of law, is Lay days. Days allowed for loading and
a "legal" process, however defective.* unloading the cargo of a vessel.5 See Work-
The insertion of "unlawfully" in an indictment ing-days.
may not dispense with the necessity of speoiflcally
Lay out. In highway laws, embraces,
alleging the elements of the offense.'
But the charge of an offense in the precise words of ordinarily, all the acts necessary to the com-
the statute will dispense with the addition of " unlaw- plete establishment of a highway."
May include every order of municipal authorities by
ful y." "
"It shall be lawful" may, or may not, impose an which private property is taken for public use.'
imperative duty.' To locate and establish a new highway.'
Other expressions are: lawful age;= lawful and May mean to take and maintain a road."
vmlawful assembly, g. v.; lawful and unlawful con- " Lay out and complete a street: " to determine the
dition or covenant, qq. v.; lawful deed, g. v.; lawful time at which it shall be graded, finished, and fitted
discharge;' lawful goods;'" lawful issue;" lawful for travel; to make a de facto street.'"
juror; >" lawful money,'' q. v.; lawful trade; '* law- " Lay out " and " lay off " a road: to lay down the
ful authorities.'^ whole ground covered, specifying the width."
Ciompare Juridical; Legitimate; Illicit; Valid; LEAD, V. To conduct in the way of duty.
Voro.
More frequently, "mislead." See INSTRUCT, 3.
LAWSUIT. A popular term for a suit Lead a use. To declare or specify what
at law to which there are two parties.
May include an arbitration." See Lis, Pendens; Lead a witness. To suggest, by inter-
Maintenance, 1.
rogation, the nature of the answer or answers
I State V. Massey, 97 N. C. 468 (1887). ude.^^
' [Bouvier's Law Diet.] » -yer is a suffix, as in sawyer.
8 [Crabbe, Syn. 579, ed. 1879. "Revenue Act 13 July, 1866, § 79: 14 St. L. 121.
» Nason v. Staples, 48 Me. 128 (1857). » Gk. laoa, the people.
'Commonwealth v. Byrnes, 126 Mass. 849 (1879), * A. S. lecgan, to cause to lay: licgan, to lie.
cases. » 8 Kent, 202.
•United States v. Thompson, 6 McLean, 56 (1863). • [Cone V. Hartford, 38 Conn. 376 (1859), Storrs, C. J.;
' See 17 N. J. L. 169; 1 Edw. 84; 11 Ad. & E. 823 19 id. 597.
MMd. Ch. 238. 'Fuller V. Springfield, 128 Mass. 291 (1877), Gray, C. J.
» 1 Wheat. 447; 13 id. 377. 'Foster v. Park Commissioners, 133 Mass. 329 (1882),
10 1 Johns. Cas. 1 ; 2 id. 77, 180. Field, J.
" 3 Edw. 1 ; 10 B. Mon. 188; 31 Tex. 804. » Charlestown, &c. R. Co. v. County Commissioners,
■no y erg. 524. 7 Mete. 84 (1843).
'3 16 Ark. 83; 3 Ind. 358; 2 How, 844; 3 id. 717. 1" Bowman v. Boston, 5 Cush. 8 (1849); Fernald c.
" 15 Wend. 18; 3 T. R. 782. 12 id. 678-79 (1863).
Boston,
" Small V. Eason, 11 Ired. L. 97 (1850).
'•8 Pet. 449; 9 id. 711.
>• Packard v. Hill, 7 Cow. 434, 441 (1827). 1" See 2 Bl. Com. 863.
 606
LEAD-WORKS

it is desired that the witness shall make. See or other annual recompense,) made for life,
Leading Question. for years, or at will, but always for a E'
LEAS less
Ijead in a cause or trial. To have the time than the, lessor has in the premises.^
chief management of one side of a matter in A conveyance of the whole interest constitutes an
litigation. See Leading Ccnmsel. assignment.
Also, to 2convey the use of realty by a lease.
Leading ease. A decision which is re- See Let, 3.
garded, more or less generally, as settling
the law upon the question involved. A contract for the possession and profits of
The idea may have been originally that such case land and tenements on the one side, and a
stands first, in time, in a series of cases — takes the recompense of rent or other income on the
lead, is followed by others, enunciates the rule. other; in other words, a conveyance to a
Decisions, with and without annotations, and illus-
trative-of different branches of the law, have been person for life, or years, or at will, in consid-
eration of a return of rent or other recom-
collected and styled " Leading Cases."
Leading counsel. That attorney, of two
The creation of an estate for years, commonly
or more employed upon the same side of a
called a penseterm.
.' While this is both the ordinary and
cause, who has the principal management of the strictly legal signification, the word may be used
his client's case. in a different sense.*
Leading question. A question which A lease for years is a contract for the pos-
plainly suggests the answer wanted from a session and profits of lands for a determinate
witness. See further Question, 1. period, with the recompense of rent.'
LEAD-WORKS. See Nuisance. A conveyance by the owner of an estate to
LEAF. See Folio. another of a portion of his interest therein,
LEAGrUE. The jurisdiction of the United for a term less than his own, in considera-
States extends into the sea a marine league or tion of a certain annual or stated rent, or
three geographical miles, l q. v. other recompeuse.6
LEAKAGE. An allowance for loss by Lessor. A person who grants a lease.
leaking. Lessee. He to whom a lease is made.
When bottles which have been filled and corked are The usual words are "demise, grant, and to farm
found partly empty, while still whole, and the corks let,'" It is not necessary that " lease " be used. What-
in their places, the deficiency, whether called ' ' ullage ' ' ever is equivalent will be equally available, if the
or " wantage " or by any other name, can only have words assume the form of a license, covenant, or
arisen from leakage. = agreement, and the other requisites of a lease as a
LEAKTINGr. The courts are said to lean contract are present.^
or to have a leaning againsi a, particular A lessee entering into possession under a lease is
construction or result, when some rule of estopped, while retaining possession, to deny his land-
lord's title. This arises from the nature of the con-
policy or expediency directs them to presume tract of lease, which is for the possession and use, for
in favor of another view or result.' a, prescribed period, of the lessor's property, under
LEAP. See Yeae. considerations to him by way of rent or otherwise. It
implies an obligation to surrender the premises to the
LEARNED. Judges who have been reg- lessor on the termination of the lease, that is, at the
ularly educated in the law by study find expiration of the time during which the owner has
practice are said to be " learned in the law," stipulated that the lessee may have the use and pos-
in distinction from judges, not possessing session ofhis property. The lessee cannot be allowed
such qualifications! and said to be "not 1 3 Bl. Com. 317.
learned" or "unlearned" in the law, who = 3 Bl. Com. 317; 105 Pa. 473; 13 B. L 358.
formerly, as advisers or associates, sat with = Branch v. Doane, 17 Conn. *411 (1845), Storrs. J.,
such law-judges. quoting 4 Cruise, Dig. 67. See also 24 Me. 645; 21 N. J.
L. 388; 43 N. J. E. 383; 7 Cow. 326; 1 Pars. Contr. SOS.
LEASE.^ A conveyance of. any lands or
< Jamaica Pond Aqueduct Corporation v. Chandler,
tenements (usually in consideration! of rent 9 Allen, 167-69 (1864), Bigelow, C. J.
" United States v. Gratiot, 14 Pet. S38 (1840), Thomp-
■ Acts 5 June, 1T94, 20 April, 1818; 1 Story, L^W3,353; son, J.; Thomas v. West Jersey E. Co., 101 XJ. S. 78
3 id. 1694. (1879).
» Cory V. Boylston Ins. Co., 107 Mass. 144 (1871). "Gray v. La Fayette County, 6B Wis. 570
= See First Nat. Bank of Kansas City v. Hartford Fire Lyon, J.
Ins. Co., 95 U. S. 678 (1877), Harlan, J. j 111 id. 341-43. ' 2 Bl. Com. 317.
* F. laisser, to let go: L. faxare, to slacken, let go. « Moore v. Miller, 8 Pa. 383 (1848), Coulter, J.
 607 LEGACY
LEASE

to controvert the title ot the lessor without disparag- Whence sub-lessee, under-lessee : a sub-ten-
ing his own, and he cannot set up the title of another ant, an under-tenant. 1
without violating that contract by which he obtained
See Condition; Cbop; Demise; En.ioyment; Flooh;
and holds possession, and breaking that faith which he
Grant, 2, 3; Landlord; Mineral; Month; Nuisance;
has pledged, and the obligation of which is still con-
Parties; Release; Rent; Surrender, 3; Waiver;
tinuing and in full operation. ^ Years; Yielding.
A lease may be at will, for years, for life, of perpet- LEAST. See At Least.
ual duration, — for any period which will not exceed
the interest of the lessor, and subject to a condition, LEAVE. 1. To die seized of or owning.-
which is a qualification annexed to the estate by the 3. To dispose of by will : as, for a decedent
grantor, or lessor, whereby the estate or term granted
may, among other things, be defeated or terminated.'
to "leave" property to a certain person.'
3. To die with kindred surviving.
A lease not to exceed three years from the making
need not be in writing. But in Maine, Massachusetts, " Leave " no issue, referring to realty, means an in-
definite failure of issue; referring to personalty, a.
New Hajnpshire, Ohio, Vermont, and perhaps in other
definite failure of issue.*
States, a parol lease creates merely a tenancy at will.'
A posthumous child may be said to be a child whom
Iioase and release. A conveyance for
an intestate "leaves" at his death.^ See Die, With-
transferring a fee-simple. out children.
Invented after the Statute of tTses was enacted. A
Leave of court. Permission given by a
lease (a bargain and sale) for years was made by the
tenant of the freehold. This, unrecorded, made the court to do something; as, to withdraw an
bargainor stand seized to the use of the bargainee, and appearance, or a paper filed.
vested in the latter the use of the term; whereupon Compare Desertion; License; Start.
the statute immediately vested the possession. The LECTURES. Ctompare Drama.
bargainee, being in possession, could receive a release Where persons are admitted, as pupils or otherwise,
of the freehold and reversion, which was made the to hear public lectures, it is upon the implied confi-
next day — and this supplied the place of livery of dence and contract that they will not use any means
seizin, and amounted to a feofEment.* to injure or take away the exclusive right of the lect-
Leasehold. An estate in land for a fixed urer in his lectures, whether that be to publication in
term of years. print or to oral delivery.*
A professor in a university, orally delivering lectures
The disposition has been to assimilate leaseholds, at
of his own composition, does not so communicate them
least for long terms, to real estate. The courts have
to the public as to entitle a hearer, without permission,
sometimes construed the words '* realty " and " lands "
to include them. Some of the States have by statute to republish them.^
LEDGE. See Vein.
made them real estate.^
At common law, a leasehold interest in land is per- LEDGER. See Book, Of accounts.
sonal property, and subject to levy and sale as such," LEGACY.5 A bequest, or gift, of goods
Perpetual lease. A lease unlimited in and chattels by testament.'
respect to length of term ; a fee-farm. See A bequest of personalty ; but will be con-
Farm.
strued to apply to realty, if the context re-
Short lease ; long lease. In common quires it.i" Compare Devise.
speech, refer, somewhat indefinitely, to the Legatee. The person to whom the gift is
period of time a lease is to run. made.
Sublease; underlease. A lease of prem-
ises already leased, made by the first lessee. 1 See University Publishing Co. ■». Piflfet, 34 La. An.
602 (1882); 24 Cent. Law J. 314 (1887), cases.
2 [McNitt V. T'omer, 16 Wall. 363 (1872).
' Robertson v. Pickrell, 109 U. S. 614-15 (1883), Field, ' Thorley v. Thorley, 10 East, 458 (1809).
Justice. Quotes Marshall, C. J., in Blight's Lessee v. * Hall V. Chaffee, 14 N. H. 231 a843), cases.
Eochester, 7 Wheat. 547 (1882). See also Rector v. Gib- » Pearson v. Carlton, 18 S. C. 57 (1882). See 1 Roper,
bon, 111 U.' S. 284 (1884); Tilyou v. Reynolds, 108 N. T. Leg. 1563.
563 (1888), cases. •Tompkins v. HaJleok, 133 Mass. 45 (1882), cases.
"Wain^r v. Tanner, 38 Ohio St. 120 (1888), cases,- ' Caird v. Sime, H. L., 12 Ap. Cas. 386 (1887): 36 Alb.
Okey, C. J. Law J. 891; 36 Am. Law Reg. 754; ib. 762-690887), cases.
5 1 Washb. E. P. 614. Commented on, 36 Alb. Law J. 258-60 (1887): London
< 2 Bl. Com. 339; 4 Kent, 482. Law Times.
5 Dawson v. Daniel, 2 Flip. 317, 313 (1878), Hammond, « Mid. Eng. legacie: L. legatum, a bequest: legare,
Judge. to appoint as deputy.
" Freeman v. Dawson, 110 U. S. 270 (1884), cases. Ef- »2B1. Com. 512.
fect of destruction of the estate, 94 Am. Dec. 662-65, loBm-well v. Mandeville, 2 How. 678 (1844), cases;
oases. Implied warranties, 84 Cent. Law J. 149 (1887), Pratt V. McGhee, 17 S. C. 432-34 (1882), cases; Bacon v.
Bacon, 65 Vt. 248 (1883), oases.
 LEGACY 608 LEGACY

Demonstrative legacy. A bequest of a To make a legacy " speciflc " it must appear by ex-
press words, or by inference resting upon a strong,
sum of money payable out of a particular
solid, rational interpretation of the will, that the testa-
fund or thing. A pecuniary legacy, given tor intended that the legatee should take the particular
generally, but with demonstration of a par- thing and nothing else.^
ticular fund as the source of its paypient.^ If the thing specifically bequeathed does not remain
A " demonstrative " legacy differs {roin a " specific " at the death of the testator, there is no legacy."
legacy in this respect, that if the fund out of which it Vested legacy. When the interest of the
is payable fails for any cause it is nevertheless entitled legatee is so fixed as to be transmissible to
to come off the estate as a general legacy : and it dif-
his personal representatives, although he dies
fers from a " general " legacy in this, that it does not
abate in that class, but in the class of speciflc lega- before the period arrives for payment of the
cies." money. Contingent legacy. When,
All cases proceed upon the principle that whether a from the terms of the bequest, or from the
legacy Is demonstrative or specific must be decided by
uncertainty of the event, upon which the
the intent of the testator as it appears from the will;
-and that, where a legacy is held to be demonstrative, legacy is made payable, no immediate inter-
a general intent is shown to have it paid without refer- est passes to the legatee, but his title to the
ence to the fund on which it is primarily charged. ^ legacy depends upon his being in a condition
The rule that demonsti'ative legacies, or such as are to receive it when due. ^
payable out of a specific fund, are preferred, as to Where a legacy is given to a person to be paid or
that fund, in a case of deficiency of assets to pay all payable at or when he shall arrive at the age of
legacies, is a rule of intention merely.* twenty-one, or at a future definite period, the interest
General legacy. A legacy so given as in the legacy vests immediately on the testator's death,
not to amount to a bequest of a particular the time being annexed to the payment and not to the
thing or money, distinguished from all others gift of the legacy. This rule is positive except when
clearly overborne by the expressed or necessarily im-
of the same kind. I^pecific legacy. A be- plied intention of the testator.*
quest of a part of the testator's personal es- When there is a substantive bequest of money to
tate which is so distinguished.^ be paid at a future time, the legacy is "vested." When
A legacy is " general " where its amount or value is there is no antecedent bequest, independent of, the
a charge upon the general assets, and where, if these period fixed for payment, the legacy is ■' contingent." ^
are sufificient to meet all the provisions of the will, it In England, when a legacy is given to a person " as,"
must be satisfied. A legacy is " specific " when it is "if," "when," or "provided" he arrives at a certain
limited to a particular thing, subject, or chose in ac- age, or " at " that time, and there is no other control-
tion, so identified as to render the bequest inapplicable ling evidence of intention, the legacy is contingent.
to any other; as, the bequest of a horse, a picture, a The rule' is a correct one where the words "if" or
jewel, or a debt due from a person named, and, in spe- " provided " are used, and in cases where the other
cial cases, even of a sum of money." words are used in giving a legacy to a minor if there
A " specific " legacy is one that can be separated is a provision for intermediate support or other evi-
from the body of the estate and pointed out so as to dence of an intention to give contingently. "See When.
individualize it, and enable it to be delivered to the The words " in case " imply a condition as ex-
legatee as a thing sui generis.'^ plicitly as "if," "upon," and the like, and express a
A " general " legacy may or may not be a part of contingency.'
the testator's property; but a " specific " legacy must A direction to pay when the legatee attains a cer-
be a part, severed or distinguished.* tain age, the interest of the fund being given him in
the meantime, shows that a present gift is intended,
• Glass V. Dunn, 17 Ohio St. 434 (1867). and the legacy vests in interest at the death of the
2 Armstrong's Appeal, 63 Pa. 316 (1869); 1 Eoper, Leg. testator. But a direction to pay at a future period
191, 198. See also 47 Ala. 654; 66 Md. 122; 23 N. H. 164; vests in interest immediately, if the payment bepost-
16 N. Y. 365; 19 (Jratt. 438; 1 Ld. Cas. Bq., W. & T., *274.
s Stevens v. Fisher, 144 Mass. 127(1887), cases, Devens, Ld. Cas. Eq,, W. & T., »267, 274, 320, cases; 2 Williams,
Judge. Ex. [1158], cases.
* Eambo v. Rumer, 4 Del. Ch. 9 (1866); 1 Hop. 192. > Wyckofl V. Perrine, 37 N. J. E. 120-21 (1883); 1 Eop.
i Tift V. Porter, 8 N. T. 518 (1853); Schofieldj). Adams, 234.
12 Hun, 369 (1877): 1 Eop. 191. = Hoke V. Herman, 21 Pa. 305 (1863), cases.
« Langdon u. Astor's Executors, 3 Duer, 643 (1864), ^ 1 Eoper, Leg. 550.
Duer, J. « Bayard v. Atkins, 10 Pa. 17-18 (1848), cases; Pen-
' Harper v. Bibb, 47 Ala. 653 (1872), Peters, J. nook V. Eagles, 102 id. 294 (1883).
8 [Bothamley v. Sherson, L. E., 20 Eq. 308-9 (1875), 5 Bowman's Appeal, 34 Pa. 23 (1^9), cases; Seed's
Jessel, M. E. See also Bradford v. Haynes, 20 Me. 107 Appeal, 118 Pa. 820 (1888).
(1841); Loring v. Woodward, 41 N. H. 394 (1860); Be Es- » Colt V. Hubbard, 33 Conn. 286-86 (1866). See also
tate of Woodworth, 31 Cal. 601 (1867); Smith v. MoKitt House V. Ewen, 37 N. J. E. 374 (1883).
erick, 51 Iowa, 551-52 (1879); Ashbumer u. Maguire, 2 'Eoberts' Appeal, 69 Pa. 72 (1868).
 LEGACY 609 LEGACY

poned for the convenience of the estate or to let in creating an express trust, an executory bequest of
some other interest.' personal propei-ty to take effect on a contingency that
Ordinarily, an unqualified gift of the use, income must happen, if at all, on the death of the first taker,
and improvement of personal estate vests an absolute may be a valid bequest'.
interest.* In cases of deficiency of assets, general legacies
A rule of construction is, that when a bequest is " abate " proportionably ; but a specific legacy not at
made to individuals by name, although they in fact all, unless there is not sufficient without it. Demon-
constitute a class, the intention to give to them in- strative legacies abate as between themselves, and
dividual y isindicated, and thus the share of one dying pari passu with specific legacies, but are preferred to
before the testator will become intestate property. general legacies." See Abatemknt, 3.
But this rule, founded on the supposed wish of the Specific legacies are invariably liable to " ademp-
testator, may be controlled by those portions of the tion;" as a rule, general and demonstrative legacies
will, if such exist, which indicate an intent that such are not.* See Ademption.
shall not be the result. If it appears from the whole A legacy equal to or greater than a debt is a " satis-
will that the testator intended that his beneficiaries faction "of the debt; less than the debt, it is not a
should take as a class, the share of one who dies satisfaction pro tanto. But slight circumstances will
before the testator will go to the survivors.^ rebut this presumption. Where there are two legacies
When a legacy is given to a class as " the children " of equal amounts, the legatee takes one only; other-
of a person, and no period is fixed for the distribution wise, ifthe amounts are unequal.'
of the legacy, it is considered as due at the testator's A bare direction that a devisee shall pay money to
death, and none but children born or begotten pre- a legatee creates a personal obligation. To constitute
viously are entitled to share in it. Where there is a " charge upon the land " devised, there must be ex-
postponement of the division of a legacy given to a press words to that effect or a necessary implication
class until a period subsequent to the testator's death, that such was the intention.*
any one who answers .the description so as to come Realty will not be charged with the payment of
within the class at the time for division will be entitled debts and legacies when there is personalty more than
to a share, though not in esse at the death of the tes- sufficient to pay them, unless the intention to charge
tator, unless the will shows an intention in the testator the realty and exonerate the personalty is clear. ^
to limit his boimty to such of the class as would an- When the testator has not created an express trust
swer the description when the will took effect by his fund wherewith to pay legacies, but has made a gen-
death. Where the bequest is in terms immediate, and eral residuary disposition of his whole estate, blending
so intended to be. and the description of persons to realty and personalty in one fund, the realty is con-
take is general, there none that do not fall within the structively charged with the legacies.'
description at the time of the testator's death can take. * If a legacy is made a personal charge on a devisee,
See Each. acceptance of the devise imposes a personal liability
Other descriptive terras applied to legacies on him, and he takes as a purchaser in fee; but if the
are: absolute, vesting at once, uncondition- legacy is charged on the estate, he takes as a benefi-
cial devisee.'
ally; accumulative, cumulative, or addi- A devise or bequest to a person for the benefit of
tional, superadded to another legacy ; alter- himself and others, though accompanied with power
native, of one of two things; conditional, to sell, lease, use, or expend, does not confer an abso-
dependent upon some event, contingent; lute property in the first taker, nor make the object
liable for his debts.'
lapsed, where the legatee dies before the A legacy is the transfer o£ an inchoate interest, and
testator, or before a specified event ; residu- not perfected until the executor consents to pay it.
ary, of the residuum (q. v.) of the estate. His duty is first to see that the debts of the estate are
The want of permanency in the condition of differ-
ent kinds of personal property has occasioned much ' Hooper v. Bradbury, 133 Mass. 306, 308 (1883), cases.
difBculty in construing bequests of future interests in Field, J.
chattels personal. Without considering such bequests, 22 Bl. Com. 513; 4 Ves. 160; 11 Pa. 72; 1 Story, Eq.
and having in view only general bequests of personal
property or money, the rule is that, by means of an « 2 Story, Eq. § 1111.
express trust, personal property may be subjected to « See 2 Story, Eq. § 1110; 3 Duer, 541 ; 9 Barb. 57.
any hmitations not inconsistent with the rule against §555.
» Walter's Appeal, 95 Pa. 307 (1880), cases; Cable's
perpetuities, and it is established that, by or without
Appeal, 91 id. 339 (1879).
•Cropley v. Cooper, 19 Wall. 174 (1873), cases, » Eaverson's Appeal, 84 Pa. 178 (1877): 1 Bop. 699.
Swayne, J.; 2 Bl. Com. 513. 'Lewis V. Darling, 16 How. 10-11 (1853), cases; Al-
' Chase v. Chase, 132 Mass. 474 (1883), cases; 86 Cent.
legheny Nat. Bank v. Hays, 13 F. R. 664(1882); New-
Law J. 573-76 (1888), cases. som V. Thornton. 82 Ala. 402 (1886), cases.
'Towne v. Weston, 133 Mass. 516(1883), cases. » Funk V. Eggleston, 92 111. 534 (1879), Baker, J.
' Chasmar v. Bucken, 37 N. J. E. 418 (1883), oases, •Wetherell v. Wilson, 1 Keen, 15 Eng. Ch. E., 81
Eimyon, Ch. On legacies given in a particular char- (1831), cases; 1 Jarm. Wills (Bigelow's ed.), *398, cases;
acter, see 8 Va. Law J. 198, 366, 335, 396 (1884), cases: Burt V. Herron, 66 Pa. 403 (1870); Biddle's jVppeal, 80 id.
18 Cent. Law J. 87, 104, 126, 146 (1884),— Joum. Jurisp. 364 (1876); Pennock's Estate, 20 id. 368 (1853).
(39)
 LEGAL 610 LEGAL

paid. Interest is payable after a year from the deatli sistent with sound policy and good morals as
of the testator.^ v
to the consideration or the thing to be done.'
LEGAL.2 1. Pertaining to the under- Illegality is of two sorts : it exists at com-
standing, the exposition, the administration, mon law, or is created by some statute. A
the science and the practice of law : as, the contract illegal at common law is so because
legal profession, legal advice ; legal blanks,
it violates morality, is opposed to public pol-
newspaper, qq. v.
icy, or is tainted with fraud. ^
3. Allowed or authorized by law ; as, legal — Some authorities hold that, though an illegal con-
discretion, holiday, interest, tender, trade, tract will not be executed, yet, when it has been
executed by the parties themselves, and its illegal ob-
qq. V. ject has been accomplished, the money or thing which
3. Implied or imputed in law ; opposed to
was the price of it may be a legal consideration be-
actual: as, legal malice, q. v. tween the parties for a promise, express or implied,
4. Sufficient to meet the requirements of and a court will not unravel the transaction to discover
law : as, legal — charity, condition, consider- its origin.'
ation, contract, covenant, cruelty, notice, A party to a contract, the making of which, al-
though prohibited by law, is not malum in se, may,
obligation,* qq. v. while it remains executory, rescind it and recover
5. Appointed or designated by law : as, a money advanced to the other party who had per-
legal representative, q. v. formed no part of the contract '
There is a distinction between a contract made in
6. Cognizable in a court of law ; as opposed
excess of power and a contract prohibited by statute
to equitable, cognizable in chancery: a3,
or public policy; as there is between suing for the
legal — assets, defense, estate, interest, breach of an executoiy contract and suing to recover
owner, proceedings, remedy, right, wrong, the value of property received and retained under a
waste, qq. v. contract executed.on the part of the plaintiff.'
If in any case it appears from the evidence that the
" Legal " looks more to the letter, and "lawful " to
claim of the complaining or moving party is against
the spirit, of the law. " Legal " is more appropriate
for conformity to positive rules of law ; " lawful " for public
recover policy
a finalorjudgment,
the law, sowhatever
that in nobe^event could he
the nature or
accord with ethical principle. "Legal" imports
rather that the forms of law are observed, that the extent of the testimony upon the point at issue, the
proceeding is correct in method, that rules prescribed tribunal should not hesitate to dismiss the proceed-
have been obeyed; " lawful " that the act is rightful
Within the condemned category are: agreements
•In substance, that mo"al quality is secured. " Legal "
is, moreover, the antithesis of "equitable," and the to pay — for supporting a candidate for a public office,
ing.'
orfor not being a candidate: for procuring an office;
equivalent of " constructive." * Compare Valid.
Illegal. Contrary to law. for procuring a government contract; for lobby serv-
ices on a claim against the government; for not bid-
1. Without authority or support of law, ding on a contract to carry the mail ; for procuring
«€ither common or statute. signatures for a pardon; for suppressing evidence; for
3. In violation of law; in contravention a conveyance of what may come from an ancestor;
<of the direction, requirement, or prohibition for promoting a marriage; for influence in making a
'Of a law considered with reference to its will; 4 for part of the fee one may get as special
counsel for the government, designated by the plaint-
letter or policy. Compare Error, 3 (3), Er- iff; 'for a percentage on arms sold to a foreign gov-
roneous; Void.
"Illegal " and " unlawful " are synonyms." ' Trist V. Child, 21 Wall. 448-49 (1874), cases; Yates v.
Legality. The quality of conforming to Robertson, 80 Va. 484 (1885).
law. Illegality. The quality of being in ' Smith, Contracts, 178,
' Planters' Bank v. Union ■ Bank, 16 Wall. 500 (1873),
•conflict with law ; also, an act or thing con- cases, Strong, J. See also Armstrong v. Toler, 11
itrary to some law.6 Wheat. 258, 268 (1826); McBlair v. Gibbes, 17 How. 236
A contract may be "illfgal" because con- (1854), cases; Brooks v. Martin, 8 Wall. 81 (1863), cases;
trary to a constitution or a statute, or incon- Thomas v. City of Richmond, 12 id. 365 (1870), cases;
Clarke v. Lincoln Lumber Co., 59 Wis. 662-65 (1884),
' 2 Bl. Oom. 512-14. cases; 31 id. 254; 10 Biss. 63; 102 U. S. 420.
* L. legalis; lex, law. * Congress & Empire Spring Co. v. Knowlton, 103
3 See Mattoon v. Monroe, 21 Hun, 83 (1880). U. S, 49, 58-60 (1880), cases. Woods, J.
■< [3 Abbott's Law Diet, 24.] ' Slater Woolen Co. v. Lamb, 143 Mass. 421-22 (1887),
cases.
'State V. Haynorth, 3 Sneed, 65 (1855). See also
Chadboume v. Newcastle, 48 N. H. 100 (1888). » Lee V. Johnson, 116 U. S. 52 (1885), Field, J. See
« See Hurd, Hab. Corp. 327; 1 Abb. Pr. 433; 31 Cal. also Farley v. St. Paul, &c. R. Co., 14 F. R. 114 (1883).
625; 67 Mo. 642-43. ' Meguire v. Corwine, 101 U. S. Ill (1879), cases.
 LEGATE 611 LEGITIMACY

emraent through the influence of a consul of that Legislator. A law-maker ; a member of

government.^ a law-making body. See Arrest, 2 (3, 3) ;
See Delictum, In pari, etc. ; Estoppel; Fraud; Man- Communication, Privileged, 1; Liberty, 1,
datory; Prohibition,!; Ratification; Usus, Utile.
Xiegalize. To give the authority of law Of speech.
to that wliich lacks such authority: as, to Legislatorial. Pertaining to a legislature.
legalize a nuisance ; length of time will not Legislature. The law-making power in
a State.
legalize a nyisance ; slavery was a legalized
The intent of the law-maker is the law.
' social relation.
To conflrra or make valid what has been One legislature cannot bind another.'
The journal of a legislative body is evidence for all
already done.^
LEGATE. See Minister, 3. It is
legal no part of the duty of the judiciary to go be-
purposes.'^
LEGATEE. See Legacy. hind alaw duly certified to inquire into the observance
LEGES. See Lex. of form in its passage.'
The action of a legislature should not be held in-
LEGISLATE.^ To make a law or laws ; valid unless it is so beyond reasonable doubt; and
to exercise sovereignty, q. v. it is then so held, not because of judicial supremacy
Legislation. The enactment of a law or over a co-ordinate branch of the government, but
laws. because the law must be declared and the fundamental

General legislation. Legislation for all law maintained.*

■Well-settled rules of construction forbid courts as-
the people of a State or union of States. suming to declare an act void because in their opinion
Local or special legislation. Legislation for it is opposed to a spirit supposed to pervade the con-
individuals or a section of country. stitution, but not expressed in words.'
A private bill is apt to attract little attention. It The legislature is to judge of the wisdom and pol-
involves no great public interest, and usually fails to icy of enactments, and ho court has the right to over-
excite much discussion. Not unfrequently the facts rule that judgment, even to the extent of its own
are whispered to those whose duty it is to investigate, powers, unless the legislature has clearly exceeded its
vouched for by them, and the passage of the measure functions.*
is thus secured. If the agent is truthful and conceals See further Act, 3; Bill, n; Congress; CoNsirru-
nothing, all is well; if he uses nefarious means with tional: Contempt, 8; Corporation, Municipal; Dis-
success, the spring-head and stream of legislation are cretion, 4;Document; Government; Journal; Log-
rolling; Police, 8; Policy. 1; Ratification; Snake;
polluted.' See Lobby.
Statute; Uniform; Veto; Yeas and Nays.
Local and special legislation, as preventing uni-
formity, and tor other reasons, is much restricted by LEGITIMACY." Lawfulness; ii par-
modem constitutions.^ ticular, the civil condition of a child born in
Judicial legislation. The making of law lawful wedlock. Opposed, illegitimacy.
by the decisions of the courts ; often, an ex- Legitima te. l,v. To confer a legal status
pression ofcontempt for such judicial inter- upon : as, to legitimate a bastard.
pretation ofa statute as passes by the intent 2, adj. (1) Born in lawful wedlock, or
of the law-maker and virtually makes a new within a competent time afterwards.8 Op-
law.6 See Jus, Dare; Law, Common.
posed, illegitimate.
Legislative. 1. For the enacting of laws : (2) Authorized, constitutional, or lawful:
as, a legislative body. as, the legitimate government.
3. Pertaining to the law-making body : as, Legitimation. Changing the civil status
legislative — cotistruction, discretion, intent, of a bastard to the status of a lawful child.
power.
" Legislative power " is the power to enact laws or 1 Newton v. Commissioners, 100 U. S. 559 (1879).
to declare what the law shall be.' ' Southwark v. Commonwealth, 26 Pa. 450 (1851).
3. Done by enactment: as, a legislative ' Kilgore v. Magee, 85 Pa. 412 (1877).
act. ' Sullivan v. Berry, 83 Ky. 206 (1885).
"State ex rel. Herron v. Smith, 44 Ohio St. 374 (1886).
1 Oscanyan v. Winchester Arms Co., 103 U. S. 278-77 » Adler v. Whitbeok, 44 Ohio St. 503 (1886). As to
(1880),, cases; 116 id. 52. constitutional regulations of proceeding, see 24 Am.
2 [Barker v. Chesterfield, 102 Mass. 128 (1869). Law Reg. 153-70 (1885), cases.
' L. lex, legis, law ; latio, a proposing. ' L. legitimus. lawful: lex, law.
< Trist V. Child, 21 Wall. 451 (1874), Swayne, J. 8 1 Bl. Com. 446; 70 Iowa, 412; 3 Kan. 52; 91 N.Y.
6 Hoyt V. Sprague, 103 U. S. 683 (1880). 315, 320; 18 Hun, 509; 1 Grant (Pa.), 381; 2 Kent, 308.
» See Bishop,Contr. § 1123. As to proof of legitimacy, see 18 Cent. Law J. 262-67
' Wolfe V. M'CauU, 76 Va. 883 (1881).
(1884), cases. '
 LEND LETTER
612

Iiegitimatize ; legitimize. To make A letter is presumed to reach its destination at the

regular time, and to be received by the addressee, if
lawful ; to legitimate, q. v.
living at the place and usually receiving letters there;
In most of the States, subsequent marriage of the
as, in cases wh^re notice of the protest of paper is to
parents, and recognition by the father, legitimizes an
be sent to an indorser.' See Protest, 2.
illegitimate child,' See Bastard.
Congress has forbidden interference with the rapid
LEND. See Hire.
transportation of the mails; detaining or opening let-
LESS. See Moee or Less. ters, secreting the contents, or otherwise tampering
LESSEE ; LESSOR. See Lease. with the mails; competition by private persons; send-
LET. ], V. To give leave to; to permit. ing obscene, scurrilous, disloyal letters or publica-
tions; and letters and circulars regarding illegal lot-
(1) To grant the use of realty for a com- teries.* See Delivery, 2; Embezzlement, 1; Lottery;,
pensation. Correlative, to hire. Obscene.
Re-let. To let again or anew. Negotiations merge into a contract the moment a
Sub-let. To let to a third party as a sec- stamped letter assenting to the proposed terms is
mailed.* See further Offer, 1.
ond lessee. See further Lease. Compare
That a witness may refresh his memory by refer-
Farm, Let.
ring to a letter, see Refresh.
(3) To award : as, to let a contract after If a letter offered in evidence purports to be a repli/
proposals have been considered. 2 Whence to a letter referred to, the latter must be called for,
letting, sub-letting. in order to be put in evidence with it.* See Verbum,
Verba illata.
The act of May 17, 1878, regulates the advertise-
The author of letters, whether they are literary
ment of " raail-lettings " by the postmaster-general. ^ compositions, familiar letters, or letters of business,
2, n. In old English, interruption, obstruc-
possesses the exclusive copyright in .them. No per-
tion, impediment: as "without let or hin- son, other than he or his representative, not even the
derance." addressee, has a right to publish them upon any ac-
LETTER. 1. One of the characters count, except upon such occasions as require or justify
which constitute the alphabet. their public use; as, in a lawsuit, a letter necessary to
Many letters of the alphabet, standing alone, denote establish one's rights, or a letter sent to a paper to
abbreviations Cg. v.) of words; and all the lettOTS, in vindicate the writer's reputation. For the stronger
reason the addressee may not publish them for profit.
their order, may be used to mark exhibits, g. v.
In short, the addressee has but a limited right or spe-
2. Verbal expression, as opposed to the cial property in letters, as a trustee or bailee, for par-
spirit and reason, of language: as, " the let- ticular purposes, either of information or protection,
or of support of his own rights and character. The
ter " of a document, of a law. See Litera ;
Casus, Omissus; Spirit. general property belongs to the writer, whatever the
character of the letters. An exception is made in favor
3. A written communication, sealed or of the government, as to official letters by public
unsealed.^
A letter is certainly a "writing." K addressed by officers.'
The receiver of private letters cannot make them
one person to another, while we may call it a letter, it the subject of sale without the writer's consent.
is also a writing, whether the characters are made Therefore, a contract to sell letters written to another
with the pen, by type, or in any other manner. ^ person who advertised remedies for diseases, the pur-
The word "letter" will include the envelope in chaser intending to send an advertisement to the
which it is sent; as, in a notice to produce a letter.* writers, is contrary to good morals, and void." See
That a sealed tetter is not a publication, see Publi- Manuscript.
cation, 2.
The postmark on a letter is prima facie evidence
that the letter was in the post-ofSqe at the time and Eosenthall v. Walker, 111 U. S. 193 (1884), cases; Mon-
telius V. Atherton, 6 Col. 227 (1882); Breed v. First Nat.
place specified.' Bank, ib. 238 (1882).
■ 1 Greenl. Ev. § 40, and cases, ante. .
1 See Succession of Caballero v. The Executor, 24 = See B. S. §§ 3890-94; United States v. McCready, 11
La. An. 580 (1872). F. R. 225 (1882).
2 See Eppes v. Mississippi, &c. E. Co., 35 Ala. 55 ^ Darlington Iron Co. v. Foote, 16 F. E. 646 (1883) ;
(1869). Blake v. Hamburg-Bremen Fire Ins. Co!, 67 Tex. 163
»20 St. L. 61, 141, 356. (1886).
« United States v. Bromley, 12 How. 97 (185.1). ' Harvey v. Pennypacker, 4 Del. Ch. 454 (1872); 41 Ga.
'United States v. Gaylor, 17 F. R. 441 (1883); United 186; 33 Iowa, 508; 14 Alien, 285; 104 Mass. 319; 7 Mich.
States V. Britton, ib. 732 (18S3). 331 ; 19 Minn. 396.
« United States v. DufC, 19 Blatch. 10 (1881). 'Folsom V. Marsh, 2 Story, 110-13 (1841),' cases,
'1 Greenl. Ev. § 40, oases; Bussard v. Levering, 6 Story, J. See also Woolsey v. Judd, 4 Duer, 379 (1855).
Wheat. 102 (1821); Lindenberger v. Beall, ib. 104 (1821); "Rice V. Williams, 32 F. R. 438, 440-48 (1887), cases,
Eiggs V. Hatch, 17 F. E. 838 (ISSS); ib. -842-50, cases: Bug. and Am.
 LETTER 613 . LETTER

The courts will enjoin an Improper use ot a letter Letter of recommendation. If the person who
by the addressee.' gives a commercial letter of recommendation honestly
Letter-book. A book containing copies states his opinion, believing at the time that he states
of letters, the copies being made by mechan- the truth, he is "not liable in an action of deceit, al-
ical process. though the representation turns out to be untrue.'
See Communication, Privileged, 3.
A "letter in such a book is prima facie evidence lietter-press. See Letter-book.
after notice to produce the original.^ See Copy. See also Circular, 2; Communication; Decov;
Letter-carrier. An employee of the post- Mail, 2; Post, 8; Prejudice, 2; Refer, 2; Threat.
office who delivers letters directly to ad- 4. An instrument attesting the grant of a
dressees at their street and number. '
right or of authority. In this sense " let-
Letter-head. See Sign. ters "is used where only one instrument is
Letter of advice. A communication referred to. Compare Presents (1).
from a factor to his pi-incipal, respecting Letters missive. (1) In England, a com-
their common business; also, a letter from munica,tion from the lord chancellor to a
the drawer of a bill of exchange informing peer, made a defendant in equity, requesting
the drawee of some fact respecting the bUl. him to appear and answer the bill.2
See Advice. (3) In civil law, the papers sent, on appeal,
Letter of credit. A letter written by to the court of review; letters dimissory:
one merchant or correspondent to another, apostles, q. v.
requesting him to credit the bearer with a Letter of attorney. An instrument con-
sum of money.* ferring power of attorney upon an agent.
A letter of request whereby one person re- See Attorney, Power of.
quests some other person to advance money Letter of license. See License.
or give credit to a third person, and prom- Letter of recall. Informs a government
ises that he will repay or guarantee the same that a minister sent to it has been called
to the person making the advancement.* home.
Special letter of credit. A letter addressed Letters of administration. The instru-
to a particular individual by name, and gives ment by which a person is empowered to
no other person a right to act upon it. take charge of the property of an intestate
General letter of credit. A letter addressed (generally), to collect the credits and pay the
to any and every person, and gives any one debts of the estate. Compare Letters Testa-
authority to advance money upon it.^ mentary. See further Administer, 4.
The language should receive a reasonable inter- Letters of marque and reprisal. See
pretation, according to the intent as disclosed by the
instrument and the surrounding circumstances. Any Marque.
ambiguity should be taken most strongly against the Letters patent. Open letters: an un-
party who induces the other to give credit to the sup- sealed document addressed by a government
posed intent,' to all persons whom it may concern. Op-
To construe the words with wise and technical care
posed, letters close: a document directed
would not only defeat the Intentions of the parties,
but render such instruments too unsafe a basis to rely to a particular person, for some special pur-
upon for extensive credits,* See further Exchange, 8, pose, and therefore closed up -and sealed.
Bill of; Guaranty (2), Letters patent evidence grants from the govern-
■ United States v. Tanner, 6 McLean, 128 (1854); Bart- ment, as, of land, or a franchise.' See further Pat-
ent, 2; Grant, 3.
lett V. Crittenden, 5 id. Si (I849j; 2 Story, Eq. §§ 944-49.
'1 Greenl. Ev. § 110; 1 Whart. Bv. §§ 72, 133; 119 U. S, Letters requisitory.
tory. See Letters Roga-
494.
1 See E. S. §§ 3865, 3874, 3980, 3996; 1 Sup. R. S. pp. 95, Letters rogatory. A request by one
414,415. court of another court in an independent
. 'Mechanics' Bank v. New York, &o. B. Co., 4 Duer,
586 (1855): McCulloch, Com. Diet. Kaufman, 93 id. 279, 282, 285, 291 (1883), cases; Pollock
» 2 Daniel, Neg. Inst. p. 666: Laf argue v. Harrison, 70 V. Helm, 54 Miss. 5-6 (1878) cases; Douglass v. Rey-
Cal. 384 (1886), cases. nolds, 7Pet. •122-28 (1833), cases; State Nat. Bank v.
•Union Bank v. Coster, 3 N. Y. 214 (1850). Young, 14 F. R. 890 (1883), cases; Byles, Bills, 99;
' Laf argue v. Harrison, 70 Cal. 385-89 (1886), cases. Story, Bills, § 640.
8 Lawrence V. McCalmont, 2 How. 449 (1844), Story, J. 1 Lord V. Goddard, 13 How. 198 (1851).
2 3 Bl, Com. 445; 1 Daniel, Ch. Pr. 366.
See generally Mechanics' Bank v. New York, &c.
K. Co,, 13 N. Y. 630 (1866); EvansvUle Nat. Bank v. » [8 Bl. Com. 346.
 LEVANT LEWD
614

jurisdiction, that a witness be examined 2. (1) To do the acts by which a sheriff sets
under interrogatories sent with the request. apart and appropriates, for the purpose of
Coming from the court of a foreign countrj', the satisfying the command of a writ of execu-
ivitness maybe compelled to appearand depose in the
circuit court to which the letters are sent.' Compare tion, a part or the whole of a defendant's
Dedimus.
Letters testamentary. The instrument property.!
(3) The taking possession of property by an
under which a person named as executor oflScer. 2
Generally, all that is required is that Qie property
in a will formally takes charge of the estate,
should be present before the officer, subject to his con-
and proceeds to carry out the directions in trol, and that he openly state that he levies upon it by
the will.3 Compare Letters of Administra- virtue of an execution. He must perform some act
tion. See further Executor. which not only indicates an intention to seize the
LEVAlfT ET COUCHANT.3 Rising property, but he must reduce the property to posses-
sion, or at least bring it within his immediate control.
up and lying down.
A "pen-and-ink" levy is not sudcient. He must do
Where lands are not sufficiently fenced to keep out some act which, if not protected by the writ, would
qattle, the landlord, at common law, cannot distrain
make him a trespasser.^ See Custody, Of law; Dis-
tliem until they have been long enough on the land to tress.
liave lain down and rose up to feed — one night at
least. After that period the law presumes that the Equitable levy. Filing a creditor's bill
owner may have notice that his cattle have strayed, and serving process creates a lien in equity
and it is negligence not to have taken them away.< upon the effects of the judgment debtor,
LEV. FA.; LEVARI FACIAS. See aptly tei'med an " equitable levy." i
Execution, 3, Writs of. 3. (1) To exact by authority of govern-
LEVEE. An emb'ankment intended to ment : as, to levy a tax, or troops. (2) That
prevent inundation. which is called for or obtained by the requi-
A State, in the exercise of police powers, ha5 the sition :as, a levy of men, a tax levy.
exclusive right to determine the propriety, location, " Levy " is synonymous with " collect " or *' raise "
and mode of building levees within her borders. After
by execution. To " assess " a tax is to declare it pay-
she has so decided, and contracted for the enterprise, able.5 See Tax, 2.
a person, on whose land the levee is to be built, can- Levy court. The body charged with the
not require that it be constructed differently; and, in
administration of the ministerial and iinan-
case of non-compliance with his demand, he cannot
hold the State liable for compensation for the prop- cial duties of Washington county. District
erty taken or for any injury sustained.^ See Compen- of Columbia, as to roads, bridges, the poor,
sation, 3. taxes, etc.
LEVITICAL. See Deqeee, 1. Its functions are those which in the States are per-
LEVY.6 1. To raise, lift up; to create, formed by county commissioners, overseers of the
poor, ooimty supervisors, and similar bodies with
erect, construct; to institute: as, to levy a
fine. See Fine, 1. other designations.^
Levy war. To constitute levying war LEWD.'' Given to unlawful indulgence
of lust ; dissolute ; lustful ; proceeding from
against the United States, there must be an
assemblage of persons with force and arms unlawful lust. 8
to overthrow the government or resist the
> [Lloyd V. Wyckoff, 11 N. J. L. 227 (1830); 22 id. 383.
laws.'' See Wae ; Treason. 2 Pracht V. Pister, 30 Kan. 673 (1883).
s Chittenden v. Rogers, 42 111, 105 (1866), cases; Cris-
■ See B. S. §§ 875, 4071-7,4, 4761-68; 1 Sup. E. S. p. 266; fleld 1). Neal, 36 Kan. 882 (1887), cases ; Long u Hall, 97
Weeks, Dep. §§ 13&-30; 1 Greenl. Ev. § 820. N. C. 293 (1887).
2 See Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. See also 9 Ala. 619 ; 23 How. 469 ; 10 B. Mon. 120-; 27 La.
243 (1876). An. 266, {,.59; 28 Miss. 283; 21 N. J. L. 1.50; 14 N. Y. 270;
^F.: L. levantes et cubantes. Eng. pronunciation, 29 id. 471; Slid. 102; 8 Wend. 446; 14 id. 123; 19 id. 496;
le'-vant; couch'-ant. 23 id. 462, 490; 16 Johns. 287; 34 Barb. 553; 10 Ohio St. >
' [3 Bl. Com. 9; 1 B. & A. 711 ; 5 T. E. 48. 488; 9 Pa. 349; 37 id. 600; 46 id. 394; 68 id. 70; 77 id. 103.
"Bassv. State, .34 La. An. 494 (1882), BSrmud'ez, C. J. ' Miller v. Sherry, 3 Wall. 249 (1801); 7 Dana, 110.
Contra, HoUingsworth v. Parish of Tensas, 17 F. E. 109 s Vallfi V. Fargo, 1 Mo. Ap. 345, 361-53 (1876).
(1883). ° Levy Cburt v. Coroner, 8 Wall. 507 (1864).
* F. lever: L. levare, to raise. ' Old Eng. lewd, ignorant, vile: A. S. Imwed, en-
' United States v. Greathouse, 4 Saw. 465-66, 475-79 feebled, ignorant, lay; base, licentious.
(1863); Exp. BoUman, 4 Cranch, 75 (1807); Burr's Case, 'State V. Lawrence, 19 Neb. 318 (1886): Webster's-
ib. 471. 478, 133 (1807), Mai-shall, C. J.; 2 Dall. 316, 348. Diet.; Snow v. Witcher, 9 Ired. L. 348 (1849).-
 LEX 615 LEX

Before a person can be convicted of "lewd and De minimis non curat lex. The law
lascivious cohabitation," it must appear on the face does not concern itself with trifles.
of the indictment that both parties lewdly and lasciv- To this maxim there are numerous exceptions and
iously associated " together " or *' with each other." ' reservations. Every legal right, regardless of its ex-
A " lewd house " is a house in which fornication or tent or value, may be enforced; and every wrong,
adultery is practiced; ahouse given to the unlawful in- however slight, has its remedy.'
dulgence oflust.'* Every felonious taking of property is criminal.
But the sexual cohabitation of persons who have in
Any rude, violent, or insolent touching of another's
good faith but illegally married is not " lewd and las- person is a battery ; and any apprehension whatever
civ ous." ^ is an arrest. Any stepping upon another's land is a
Lewdness. An offense against morality trespass.^ In burglary, thrusting any part of the
body within the building is an entering. And in arson,
by frequenting houses of ill-fame, or by some
the extent of the burning is not regarded, only that
grossly scandalous aiid public indecency.* some integral part be destroyed. In petty misde-
Inchides illicit sexual intercourse, and the
meanors, shades of guilt are not distinguished. ^
irregular indulgence of lust, whether public One' cent may do for earnest-money, or as a consid-
or private ; as, in the nuisance of keeping a eration. * Any indulgence whatever to the debtor will
house for lewdness." discharge the surety, g. v. A trust accepted for a
moment is thoroughly accepted.^ If land abide in the
No particular definition of what constitutes " open
and gross lewdness "is given in statutes prohibiting husband as his own 'a single moment, the wife has
it. The indelicacy of the subject forbids it, and does
But for a trifling deficiency in the quantity of land
not require of the court to state what particular con- dower.*
duct wiU constitute the offense. The common sense a purchaser may not rescind.' Trifling waste is not
of the community, as well as the sense of decency, considered.^ Ground made by alluvion, little by little,
propriety, and morality which most people entertain, belongs to the adjoining land."
Where the new evidence is slight, a new trial will
is sufHcient to apply- the statutes to each case, and
be refused. In practice, trifling defects and deviations
point out what particular conduct is rendered criminal
are not noticed Equity will not relieve where the in-
it."
by The jury is trifling.'" See Scintilla.
word " open " qualifies the intention of the per-
petrator of the the act; it does not fairly imply that Ita lex soripta est. The law is so writ-
the act must be public, in the sense of being in a pub- ten. The law, as enacted, must be applied.
lic place. Or in the presence of many people. The Where an act allowed an appeal from the granting
offense does not depend upon the number present; it of a preliminary injunction, but none for a refusal of
is enough if it be an intentional act of lewd exposure, it, the court observed " Whether the reason be sufS-
offensive to one or more persons present. " Open " In cient for the distinction or not, it is not enough for us
Bjch cases is opposed to " secret." ' to say, Ita lex soripta esi— the legislatm-e has plainly
Compare Bawd; Obscene; Open, 2 (2). so declared. ' ' See Hardship.
LEX. L. That which is laid, or fixed : Lex domicilii. The law of the place of
the law, q. v: domic il. Lex fori. The law of the forum :
In Eoman law, often synonymous with jus, q. v. ; the place where a remedy is sought. Lex
also, a written law, a statute, an enactment; the law loci. The law of the place. ,
of the Twelve Tables. In old English law, a collection "Lex loci:" lex loci contractus, the law of the
of laws; as, the Eoman or civil law.
place where the contract is entered into or is to be
Lex denoted law in its concrete sense; jus, in the
performed. It may mean lex loci domicilii, the law
general or abstract sense ; like loi and droit in French,
and gesetz and recht in German. ' 5 Hill, 170; 20 Barb. 651.
A verbis legis non est reeedendum. 2 3 Bl. Com. 209.
From the words of the law let there be no 3 4 Bl. Com. 36.
departing. < 3 Pars. Contr, 52.
» Armstrong v. Morrill, 14 Wall. 139 (1871).
If the language of a statute expresses a single « 2 Bl. Com. IBS.
meaning, effect must be given to it.» Compare Ita lax, ' D'Wolf V. Pratt, 42 111. 198 (1866).
etc.; see Statute.
f 3 Bl. Com. 238.
» 2 Bl. Com. 16, 262.
1 State i;. Foster, 21 W. Va. 775 i» See generally 4 Barb. 614; 6 Duer, 590; 6 Exch. 369;
2 Clifton V. State, 53 Ga. 244 (1874). 4 Burnt. & E. 763; 69 Cal. 2U7; 70 id. 521; 68 N. H. 39;
3 Commonwealth v. Munson, 127 Mass. 470 (1879). 37 Hun, 14; 22 Pa. 303; 57 id. 62, 432; 73 id. 129; 97
' 4 [4 Bl. Com. 64. Mass. 83; 1J8 id. 176; 76 Va. 906; 57 Wis. 110; 61 id. 264,
' Commonwealth v. Lambert, 12 Allen, 179 (1860). 615; C6 id. 288; 67 id. 347; 31 Alb. I^aw J. 186, cases;
« State V. Millard, 18 Vt. 577 (1846), Williams, C. J. Broom, Max. 142.
'Commonwealth «. WardeU, 188 Mass. 64 (1880), 1 ' Hilbish V. Catherman, 60 Pa. 444 (1£69). See also 39
Colt, J. id. 136; 54 id. E03; 66 Ga. 317; 30 Kan. 762; 3 McCraiy,
"Broom, Max. 622; 66-Pa. 136. 275; 111 Mass. 408; 1 Bl. Com. 33.
 LEXICOGRAPHERS 616 LIABLE

of the domicil; ,or lex loci rei sites, the law of the place Liability. 1. The state of being bound
where the subject-matter is situated; or lex fori, the
or obliged in law or justice.'
law of the place of remedy. See Place, 1, Of con-
tract. That condition of affairs which gives rise
Lex mercatori. The law-merchant. See to an obligation to do a particular thing to
Merchant. be enforced by action. ^
' May include every form of punishment to which a
Lex uemiuem cogit ad vana seu inu- man subjects himself by violating the common laws
tilia peragenda. The law forces no one to of the coimtry.3
do vain or useless things.' 2. Obligation to pay money ; indebtedness ;
Lex non cogit ad impossibilia. The a debt.< See Inc0e.
law does not require impossible things. ^ See A man's liability for a demand is measured by the
Possible. amount of property that may be taken from him to
Lex non scripta. The unwritten law ; satisfy the demand."
the law of custom ; the common law. , Lex Conditional or contingent liability. A
scripta. The written law ; statute law.s liability which is not "absolute," but depends
Lex rei sitae. The law of the place where upon an uncertain event ; as, the liability
the thing in dispute is situated. See Lex that an indorser will be required to pay the
note.
Loci.
Before demand and notice, the claim of the holder
Lex solutionis. The law of the place of
of a note agaiLSt the indorser is a contingent liability.*
performance.
Lex talionis. The law of retaliation, q. v. See Indorsement", 3.
As soon as a surety's obligation becomes absolute
Lex terrse. The law of the land. he may require the principal to exonerate him, al-
Lex vigilantitaus favet. The law sus- though the creditor may not have demanded pay-
ment.? See Surety. ^
tains the watchful. See Vigieans.
Individual liability. (1) That of a mem-
Salus popnli, suprema lex. The wel-
ber of an association for the obligations of
fare of the people is the highest law.
Individual interests yield to the public welfare; as.
the whole body. See Stock, 3 (3).
iu destroying private property to stay a conflagration, (3) That of one of two or more wrong-doers
or to aid the common defense in time of war. The for the acts of all. See Contribution.
powers of taxation, of eminent domain, and of general
Joint liability. When two or more pei'-
or internal police, all rest upon this principle.* See sons are bound . as one person to do a thing ;
Police, 2.
Silent leges inter arma. Or, inter as, to pay money. Joint and several liability.
arma silent leges. Laws are silent amidst When two or more persons together, or any
arms. one of them singly, may be required to do the
thing.
The law of military necessity supersedes all civil
Jaw. In time of war administration of the municipal Limited liability. A liability restricted in
law may be suspended.^ See Martial, Law. any way; in particular the liability of a part-
LEXICOaEAPHEES. See Dictionary. ner for the debts of a limited partnership,
LIABLE.e 1. Bound, bound for, obli- q. V. ; also, of a ship-owner for. loss or dam-
gated responsible,
; answerable, accountable, ages to goods,8 as see Collision, 1.
chargeable with : as, liable for money.
3. Subject to ; exposed to.
That a vessel shall be "liable" to forfeiture for ' Joslin V. New Jersey Car Spring Co., 36 N. J. L. 145
using a certificate of registry to which it is not en- (1873). See also McElfresh v. Kirkendall, 36 Iowa, 326
titled, implies that the government may not discover (1873); Choate v. Quinichett, 13 Heisk. 433 (1873).
or enforce the forfeiture.' ' Haywood v. Shreve, 44 N. J. L. 104 (1883)., See also
Wood V. Currey, 57 Cal., 209 (1881).
'Broom, Max. 243-51; 110 U. S. 460; 14 Gray, 78; ' United States v. Ulrici, 3 Dill, 584 (1875); E. S. § 13.
3 Johns. 593 ; 103 N. Y: 347 ; 44 Ohio St. 1 71 ; 7 Pa. 806, S14. « See Stanton v. Wilkeson, 8 Bened. 357, 3Bo (1876);
2 Broom, Max. 243; 8Cranch,346; 17N.H.411; 55 id. McGafBn v. City of Cohoes, 74 N, Y. 38P (1878).-
211; 55Vt. 153. » The City of Norwich, 118 U. S. 603(1886), Bradley, J.
3 1 Bl. Com. 63. » Be Loder, 4 Bened. 308, 8J9 (1870); French v. Morse,
« 0 How. 545; 94 U. S. 6)5; 97 id. 33; 30 P. R. B5; 105 2 Gray, 111 (1854).
III. 346; 97 N. C. 479; 17 Wend. 285; S3 N. J. L. 690. ' Ardesco Oil Co. v. North America Mining & Oil Co.,
= 4 Inst. 70; 30 P. R. 179; 79 Va. 641. 66 Pa. 381 (1870).
^ P. and L. li-, to bind. ' Providence, &c. Steamship Co. v. Hill Manufactur-
' The Mary Celeste, 3 Low. 354 (1874). ing Co., 109 U. S. 578 (1883).
 LIBEL 617 LIBEL

Vioarious liability. An obligation incurred Malicious defamation of a person made

as agent or representative. public either by printing, writing, signs or
LIBEIi.^ 1. In the civil law, the declara- pictures, in order to provoke him to wrath
tion in an action. or expose him to public hatred, contempt,
3. In ecclesiastical law, the formal com- and ridicule. 1 See Depamatoht.
plain t.^ That species of defatuation which is ef-
Simple, when the cause of action is briefly set forth; fected by writing or printing or by pictures
articulate, when stated in distinct averments.
3. A petition for a decree of divorce from and signs. 2
A publication without justification or law-
the marriage relation ; a statement in writ- ful excuse, which is calculated to injure the
ing of charges of such misconduct in a hus- reputation of another, by exposing him to
band or wife as will justify a dissolution of
the contract of marriage, presented to a court hatred or contempt.''
Any publication the tendency of which is
empowered to grant divorces. to degrade and injure another person, or to
Filed by the husband in his own person, or for the
wife by her next friend (g. v.X at the place of domioil;
bring him into contempt, ridicule, or hatred,
alleges, under oath, a legal marriage contracted and or which accuses him of a crime punishable
existing, the cause of complaint or the grounds for a by law, or of an act odious and disgraceful
divorce, non-collusion in the prooeedmg, and residence
for the required period ; and prays that the respondent in society.*
be subpoenaed to appear and answer, and that, after Every publication, either by writing, print-
the evidence has been heard, a decree of absolute ing, or pictures, which charges upon or im-
divorce be granted.^ See Divorce. putes to any person that which renders him
4. The first proceeding taken in a suit in liable to punishment, or which is calculated
admiralty; also, to proceed against some to make him infamous, or odious, or ridic-
res or subject-matter: as, to libel a vessel for ulous, is prima fade a libel, and imputes
materials furnished, for wages due, for dam- malice in the author or publisher toward the
ages suffered. person concerning whom such publication is
Thus, (or example, a libel for a collision avers juris-
diction in the court; describes the vessel, her condi- made.'
Every publication in writing or in print
tion, ownership, whereabouts, etc.; states the time
and place of the collision, and how, by negligence, it which charges upon or imputes to a mer-
happened, and the extent of the damage done; and chant or business man insolvency or bank-
prays that process issue against the offending ship, ruptcy, or conduct which would prejudice
that all persons interested in her be cited to appear him in his business or trade, or be injurious
and answer, and that the court decree relief in the to his standing and credit as a merchant or
premises.' See AnMiBALTif.
Libel, in the foregoing senses, corresponds to the business man.'
" declaration " at common law. to the " complamt "
A false and malicious publication concern-
or "petition" of modern codes, and to the "bill" ing the person, which exposes him to public
fllable in equity practice. ridicule, hatred, or contempt, or hinders virt-
Libelant.5 The person who institutes uous men from associating with him. 7
proceedings in an ecclesiastical court, in a A censorious or ridiculous writing, picture,
court of divorce, or in admiralty.
or sign, made with a mischievous and mali-
Libelee. The person who is called upon cious intent to ward government, magistrates,
to answer the charge exhibited in a libel. or "■4B1.
individuals."
Com. 150.
5. Slander by written or printed words,
= White V. Nichols, 3 How. 285 (1845), Daniel, J.
pictures, signs, or the like.^
s Whitney v. Janesville Gazette, 5 Biss. 331 (1873),
■ Mid. Bng. libel, a brief writing: L. Ubellus, a little
Davis, J.
book, a pamphlet. Libellus faniosus, a defamatory
* Dexter v. Spear, 4 Mas. 116 (1833), Story, J.
pamphlet,-* Bl. Com. 160; 3 id. 100; 5 Coke, *125; 8 •White V. NichoUs, 3 How. 291 (1846), Daniel, J.;
Bin. 'SIT.
= See 3 Bl. Com. 100; 3 Steph. Com. 3'.4. Steele a. Southwiok, 1 Am. L. 0. *10(i-17, cases.
• Erber v. Dun, 12 F. R. 531 (1882), Caldwell. D. J.
3 See Hancock's Appeal, 84 Pa. 470 (1870); Eealf v.
Realf, 77 id. 31 (1874). ' Donaghue v. GafCy, 54 Conn. 208 (1880), Pardee, J.
«See Dun). Adm. Pr. 113; 7 Cranch, 389, 394; 9 « People V. Croswell, 3 Johns. Cas. *354 (180J), Alex-
Wheat. 380, 401; 3 Mas. 503; 2 Gall. 485. ander Hamilton. " That definition is drawn with the
' Li'-bel-ant. Also spelled libel/ant. utmost precision,"— Steele v. Southwiok, 9 Johns. »215
» 8 Bl. Com. 125. (1612), Kent, J. See also 6 Conn. 407; 7 td. 868; 87
 LIBEL 618 LIBEL

Words of comparison may be as libelous as those in Remedies: indictment for the public offense; an
importing a direct charge; they tend to bring the per- action on the case for damages for the private injury. ^
son into ridicule and. contempt. ^ Author, printei', and publisher are alike liable.
Words relating merely to the quality of articles As to signs or pictures, it is necessary to show, by
made, produced, furnished, or sold by a person, innuendoes and averments of the defendant's mean-
though false and malicious, are not actionable without ing, the import and application of the scandal, and
special damage,-^ unless they attack the individual. '■' that special damage has followed.^
LibelGr.3 One chargeable with a libel. In a civil action, the libel must appear to be false as
Libelous, Of the nature of, pertaining well as scandalous; for, if the charges ai-e true, the
to, a libel or libels. plaintiff has received no legal injury. Therefore' it is
that the defendant may "justify," that is, prove the
Blasphemous libel. See Blasphemy.
Criminal libel. Such defamatory publi- The 3 truth of the matter, as a defense, must be spe-^
truth.
cation as tends to cause a breach of the pub- cially set up, for use by way of justification or in mit-
igation of damages. It makes no difference that the
lic peace. matter is not libelous per se, so long as it shows on its
Seditious libel. Such publication as
face personal animosity equivalent to actual malice.*
tends to disturb the tranquillity of society by Innocence is not presumed; nor is proof of malice
exciting the people against the government.^ required : proof of the pubhcation alone is sufficient.
See Sedition. Justification, excuse, or extenuation proceed from the
The communication of a libel to one person is a defendant. *
If the cbarge is false, malice need not be proved: it
publication,^ q. v. is implied. The only perfect answer and bar is the
Where the publication is m terms so clear that no
circumstances are required to make it clearer, the truth of all of the publication. The words are to be
taken in their ordinary sense ; and they are actionable
question of libel or uo libel is one of law for the court. ^ per se if directly calculated to degrade, or to injure
Every libel tends to a breach of the peace, by pro-
voldug the person libeled to break it. In criminal one in his business." A witness may not give his opin-
prosecutions this tendency is all that the law consid- ion as to the
Malice may meaning
consist of the words.''
either in a direct intention to
ers; it pays no regard to the falsity, except, perhaps,
£.s a matter in aggravation of guilt, enhancing the injure another or in a reckless disregard of his rights
and of the consequences that may result to him.^
punishment.' The essence is malice: the mind must be at fault.
Upon this principle is explained Lord Mansfield's If the language is actionable, the publication is pre-
observation that " the greater the truth, the greater the sumed to have been malicious, unless the occasion
libel; " that Is, in criminal law, the greater the appear-
ance of truth in malicious invective, the more it tends rendered it prima facie privileged — which circum- ^
stance will rebut the legal inference of malice, and
to produce a disturbance of the peace by stirring up
the object of it to revenge, perhaps to bloodshed. place the btn-den of proving malice in fact upon the
The maxim used to be "the greater the truth, the
The rules applicable are about the same as in slan-
greater the libel:" the injurious publication of the plaintiff. » because effected with greater coolness and
der. But,
truth about a person would be more likely to sting
deliberation, and more permanent and extensive in its
him to a breach of the peace than would the publica-
operation, libel is treated with sterner rigor.^
'tion of a falsehood which he could refute. But now,
under the sixth section of Lord Campbell's Act, .6 and The later constitutions declare, as a right, that'
7 Vict- (1843) c. 96, the defendant, in an action for "No conviction shall be had in any prosecution for
criminal libel, may prove not only that his assertion the publication of papers relating to the official con-
duct of officers or men in public capacity, or in any
was true, but also that it was for the public benefit
that the statement should be published. The statute other matter proper for x)ublic investigation or infor-
does not apply in cases of blasphemous, obscene, or
Sland. & Lib. •21-22; Queen v. O'BrJen, 4 Cr. Law M. ,
seditious libels.* 424
*125 (1883);
(1606). Saffyn's Case— De Libelis Famosis, 5 Coke,
id. 61; 3 Del. 407; 3 Harring. 407; 5 Ind. 3G4; 70 Iowa,
214; 68 Me. 295; 60 Md; 175; 4 Mass. 168; 3 Pick. 113; 88 1 3 Bl. Com. 125.
Mich. 375; 30 Minn. 43; 11 Neb. 281; 3 Johns. 354; 9 id. = 3B1. Com. 126.
215; 24 Wend. 440; 25 id. 198; 87 Pa. 390; 13 R. L 327; 4 3 3B1. Com. 126; 4 id. 151.
McCord, 33 1 ; 4 Wis. isS ; 6 M. & W. 108 ; 15 id. 344, 435 ; * Donaghue v. Gaffy, 53 Conn. 51-52 (1885).
2 Kent, 13; Towns. Sland. 75, § 20, cases; Stark. SI. 4. 6 White V. Nicholls, 3 How. 291 (1845); 1 Greenl. Ev.
1 Solverson v. Peterson, 64 Wis, 201 (1885), cases.
i^Dooling V. Budget Publishing Co., 144 Mass. 259 fl Whitney v. Janesville Gazette, 5 Biss. 331- (1873);
(1887), cases. Dexter tj. Spear, 2 Mas. 115 (18;i5); Commonwealths.
a Spelled also libeUer. Morgan, 107 Mass. 199 (1871).
§35.
^Gribble v. Pioneer Press Co., Sup. Ct. Minn. (1887):
■" See Queen v. O'Brien, 4 Grim. Law Mag. 424 (1883).
fi 4 Bl. Com. 150. 26 Am. Law Reg. 797-802 (1887), cases.
0 Donaghue v. Gaffy, 54 Conn. 266 (1886), cases. ^ Gott V. Pulsifer, 122 Mass. 239 (1877), cases, Gray,
'3B]. Com. 125; 4 id. 150. Chief Justice.
e Stewart v. Hall, 83 Ky. 380, 382 (1885).
p Odgers, Libel & Sland. *388-90; Folkard's Starkie,
 LIBER 619 LIBERTY

mation, where the fact that such publication was not ulties in all lawful ways, to live and work
maliciously or negligently made shall be established
to the satisfaction of the jury; and in all indictments
where he will, to earn his livelihood in any
for libels the jury shall have the right to determine lawful calling, and to pursue any lawful
the law and the facts, under the direccion of the court, trade or avocation, i
as in other cases." * Watural liberty. Consists in the power
In discussions, in good faith, of the public conduct
and qualiScations of public men, the defendant is not
of acting as one thinks fit, without any re-
bound to prove the exact truth of his statements and straint or control, unless by the laws of
the soundness of his inferences, provided that he is not nature.2 Political or civil liberty. The
actuated by express malice, and that there is reason- power of doing whatever the laws permit ; '
able gi'ound for such utterances.^ that liberty of a member of society, which is
Voters have the constitutional right publicly to dis- no other than natural liberty so far restrained
cuss and canvass the qualifications of candidates for
public oifice, and information honestly communicated by human laws as is necessary for the gen-
at a public meeting, to the effect that a candidate had eral advantage of the public.^
been charged by a reputable citizen with grave miscon- " Moral liberty " or "natural liberty "is the right
duct, isa privileged communication, and the person is which nature gives to all mauMnd of disposing of their
not liable in an action of libel, although the falsity of persons and property after the manner they judge
the charge could have been discovered by inquiry. In most consonant to their happiness, on condition of
such a case, in the absence of proof of actual malice, their acting within the limits of the law of nature, and
the court may nonsuit the plaintiff." that they do not in any way abuse it to the prejudice
Charges of crime, which are false, mad© in a news- of any other man.*
paper, against a candidate, though made without mal- " Civil liberty " is the power of doing whatsoever
ice, and in honest belief of their truth, are not privi- we will, except when restrained by just and equal
leged communications ; but, if published in good faith, laws. ''Political liberty " is that condition in whicha
after proper investigation, this fact may go in mitiga- man's civil liberty is fully secured.*
tion.* In constitutional law " liberty " means, not merely
The constitutional provision referred to does not freedom to move about unrestrained, but such liberty
apply to a civil action for damages.* of conduct, choice, and action as the law giv^s and
See Communication, Privileged, 2; Damages; Innu- protects. Liberty is classiHed as natural, civil, and
endo; Liberty, Of the press. Of speech; Mainer; political liberty. " Natural liberty " is commonly em-
Malice; Newspaper; Review, 3; Rumor; Shyster; ployed in a somewhat vague and indeterminate sense.
Slander. One man will understand by it a liberty to enjoy all
LIBER. See Homo. those rights which .are usually regarded as funda-
mental, and which all governments should concede to
LIBEIIAL. See Construction, 2.
all their subjects ; but as it would be necessary to agree
LIBERAEI. See Execution, 3, Writs of.
what these are, and the agreement could only be ex-
LIBERTY.* 1. The condition of a free- pressed in the form of law, the natural liberty, so far
man ;freedom from restraint ; freedom. as the law could take notice of it, would be found at
In its broad sense, the right not only of last to resolve itself into such liberty as the govern-
ment of every civilized people would be expected by
freedom from servitude, imprisonment or
law to define and protect. Another by natui-al liberty
restraint, but the right of one to use his fac- may understand that freedom from restraint which
exists before any government has imposed its limita-
' Penn. Const. Art. I, sec. 7. Compare Const, Ala. I, tions. But as without government only a savage state
5, 13; Ark. II, 6; Cal. I, 9; Col. II, 10; Conn. I, 5-7; Del. could exist, and any liberty would be only that of the
I, 5; Fla. D, R. 10; Ga. I, 9; Dl. n, 4; Ind. I, 9-10; Iowa, wild beast, in which every man would have an equal
I, 7; Kan. B. E. 11; Ky. Xin, 9-10; La. 4; Me. I, 4; right to take or hold whatever his agility, courage,
Mass. 1, 16; Mich. IV, 43, VI, 25; Minn. I, 3; Miss. I, 4; strength, or cunning could secure, but no available
Mo. II, 14; Neb. I, 5; Nev. L 9; N. H. I, 22; N. J. I, 5;
right to more, it is obvious that a natural libei'ty of the
N. Y. I, 8; N. C. I, 20; Ohio, 1, 11; Oreg.I, 8; R. L I, 20; sort would be inconsistent with any valuable right
S. C. I, T-8; Tenn. I, 19; Tex. I, 8; Vt. 1, 13; Va. I, 14; whatever. A right in any valuable sense can only be
W. Va. I, 7-8; Wis. I, 8. that which the law secures to its possessor, by requir-
« Crane v. Waters, 10 F. R. 620-21 (1882X cases, Low- ing others to respect it, and to abstain from its viola-
ell, C. J.; Express Printing Co. v. Copeland, 64 Tex. tion. Rights, then, are the offspring of law; they are
354 (1885). cases: 24 Am. Law Reg. 644^8 (1886), cases.
born of legal restraints. " Civil liberty " is the condi-
' Briggs V. Garrett, 111 Pa. 404 (1886), cases; 18 Cent.
Law J. 112-14 (1884), cases. ' Re Jacobs, 98 N, Y, 106 (1885), Earl, J. See also
< Bronson v. Bruce, 59 Mich. 467 (1886), cases. See People V. McCoy, Cr, Ct. Cook Co., 111., 20 Chic. Leg.
also Cranei). Waters, 10 F. H. 619 (1883); 31 Cent. Law N. 151 (1888) — on right of a physician to advertise.
J. 86-90 (1885), oases. 2 1 Bl. Com. 125; 20 Barb. 331.
s Barr v. Moore, 87 Pa. 392 (1878). See generally Coo- > [1 Bl. Com. 6.
ley, Const. Lim. 414-26, 431^3, cases. < Snyder v. Warford, 11 Mo. 515 (1848): Burlamaqui.
^ L. libertas; liber, free. ' 1 Shars. Bl. Com. 6.
 LIBERTY LIBERTY
630

tion in which rights are established and protected, by other Place." ^ But a printed and published speech
means of such limitations and restraints upon the ac- might not bear this privileged character.
tion of individual members of the political society, as Counsel, in presenting his client's view of a case,
are needed to prevent what would be injurious to may use language derogatory to adverse persons; but
other individuals, or prejudicial to the general welfare. if he goes out of the way of fair criticism, pertinent to
This condition may exist in any country, but its extent the matters in dispute, and maliciously defames a.
and securities must depend largely upon the degree of party or witness, he becomes liable to damages in an
political liberty which accompanies it. " Political action for the slander.* See further Attorney.
liberty " may be defined as consisting in an effectual Liberty of the press. Consists in lay-
participation of the people in the making of the laws.^ ing no previous restraints upon publication ;
The Constitution provides that " No person shall not, in freedom from censure for criminal
be . . deprived of liberty . . without due
process of law." Liberty here means freedom from matter when published. 3
all restraints but such as are justly imposed by law; 2 Every freeman has an undoubted right to lay what
more, then, than freedom from physical restraint or sentiments he pleases before the public: to forbid this
the bounds of a prison: freedom to go whei'e one may is to destroy the freedom of the press; but if he pub-
choose, and to act in such manner, not inconsistent lishes what is improper, mischievous, or illegal, he
with the equal rights of others, as his judgment may must take the consequences of his own temerity. To
dictate for the promotion of his happiness; that is, to subject the press to the restrictive power of a licenser,
pursue such callings and avocations as may be most as was formerly done [down to 1694J, is to subject all
suitable to develop his capacities, and give them their freedom of sentiment to the prejudices of one man.
highest employment.^ But to punish dangerous or offensive writings, which,
" Civil liberty " exists only where every individual when pubhshed, shall on a fair and impartial trial be
has the power to pursue his own happiness according adjudged of a pernicious tendency, is necessary for the
to his own views, unrestricted, except by equal, just, preservation of peace and good order, of government
and impartial laws,* and religion, the only solid foundations of .civil liberty.
Every member of a political community must nec- Thus the will of the individual is left free; the abuse
essarily part with some of the rights which, as an indi- only of that free will is the object of legal punish-
vidual, not affected by his relation to others, he might
have retained. Such concessions make up the consid- " The liberty of the press consists in the
ment.*
eration he gives for the obligation of the body politic
right to publish, with impunity, truth, with
to protect him in life, liberty, and property.'
good motives, and for justifiable ends,
Personal liberty. Consists in the
whether it respects government, magistracy
power of locomotion, of changing situation,
or moving one's person to whatever place or individuals." '
Tte right, in the conductor of a newspaper,
one's own inclination may direct, without to print whatever he chooses without any
imprisonment or restraint, unless by due
course of law.6 previous license.*'
Next in importance to personal security, q. v. Vio- " Congress shall make no law . . abridging the
lated by false imprisonment, q. v. The right forbids freedom of speech, or of the press." '
Provisions of like import are embodied in the con-
that a man be excluded from his country unless by stitutions of the States. Thus, the constitution of
sentence of law.'
See Arrest, S (2, 3); Habeas Corpus; Imprison- New York provides that " Every citizen may freely
speak, write and publish his sentiments on all subjects,
ment; Life; Magna Charta; Police, 3; Right, 2 (2), being responsible for the abuse of that right; and no
Absolute.
law shall be passed to restrain or abridge the liberty
Liberty of conscience. See Conscience ;
Religion. of speech or of the press." ^
That a legislature may not pass any such law, ap-
Liberty of speech. The right to state
facts and express an opinion. ^ See Constitution, Art. I, sec. 6, cl. 1.
2 See 3 Chitty, Pr. 887; Maulsby v. Eeif snider, Md.
Members of legislatures, "for any Speech or Debate Sup. Ct. (1888), cases.
in either House, . . shall not be questioned in any = 4 Bl. Com. 151.
» [Cooley, Princ. Const. Law, 225-23, Torts, 8-10. < 4 Bl. Com. 152.
2 Constitution, Amd. Art. V; Slaughter-House Cases, = People V. Crosswell, 3 Johns. Cas. '394 (1804), Kent,
16 Wall. 127 (18T2), Swayne, J., dissenting. Judge.
3 Munn V. Illinois, 94 U. S. 142 (1876), Field, J., dis- « Sweeney v. Baker, 13 W. Va. 183 (1878), Green, P. J.
senting. See also People v. Marx, 99 N. Y. 386 (1885). See, at length, Commonwealth v. Kneeland, 30 Pick.
< Bufchers' Union Co. v. Crescent City Co., Ill U. S. 219 (1838), Shaw, C. J. \^ Negley v. Farrow, 60 Md. 176-77
758 (1834), Field, J., dissenting; ib. 762. (1883).
' Canada Sorfthem E. Co. v. Gebhard, 109 U. S. 536 ' Constitution, Amd. Art. I.
(1883), Waite, C. J. ' N. Y. Const. Art. I, sec. 8. See references Libel, 6 ;
» 1 Bl. Com. 134. also. State v. Judge of District Court, 34 La. An. 743
(1882).
' 3 Bl. Com. 127; 1 id. 124, 137.
 LIBRARY LICENSE
631

plies to all citizens, whether in private or official sta- Licensor. He who has given a license.
tion.^ Licensee. He who has received a license.
Dining a political canvass, every person has a right
Letter of license. An agreement
to speak, write and publish " his sentiments " and
opinions, and to discuss the character, fitness, qualifl- whereby the creditors of an insolvent debtor
cations, habits, opinions, defects, merits or lack of consent to a temporary suspension of their
them, of any candidate for office, in such form and rights, and bind themselves not to sue or
manner as to hira shall seem proper, subject, in law,
molest the debtor for a specified lime, during
only to responsibility for the abuse of that right. For
such discussions the law sets up no standard of moral-
which he is allowed to carry on liis business
ity, taste, humanity or decency, but leaves those mat- at his own discretion.' See Composition, 3.
ters wholly to the censorship of the moral sense of More specific significations of license are :
the people, except that when such writings or pubU- 1. Authority given to do some one act, or
cations are libelous in their character, and are not
privileged, the publisher mtist be able, on a criminal a series of acts, on the land of another, with-
prosecution, to show to a jury not only that they are out passing any estate in the land: as, a
true, but that they were published with good motives license to hunt on another's land, or to cut
and for justifiable ends. But these provisions will be
searched in vain to find any right to publish as genuine down trees. 2
"A mere license passes no interest . . only
any false or forged letter or instrument purporting to makes an action lawful, which, without it, would
be the act of another, although he be a candidate for
have been unlawful." If the instrument passes an
office. In such a case, neither the forger nor the
interest, it is a grani.^
publisher of the forgery is writing or publishing his
sentiments or opinions within the protection of the Imports leave, permission, sufferance, authoriza-
tion: as, a license to enter upon land to erect a party-
constitution, or discussing any question within the
range of his lawful rights and privileges. ' ' In this sense, license is contrasted with easemejii,
The general liberty of the press must be construed wall.*
in subordination to the right of any person calumni- which implies an interest in another's land, distinct
from the ownership of the soil, and enjoyable at all
ated thereby to hold it responsible for an abuse of
times ; and with lease, which transfers the right to take
that liberty.'
Liberty of circulating is as essential to the liberty the profits pf the land.=
Any such license may be oral, or implied from acts,
of the press as liberty of publishing. Hence, printed and executed or executory. An executory license,
matter excluded from the mails may be transported not founded on a consideration nor coupled with an
otherwise, as merchandise.* interest, may be revoked.
Liberty of worship. See Religion. A mere hcense to a party, without words showing
2. The expressi on "imprope r liberties," it was meant to be assignable, is the gi'ant of a per-
taken with a woman, is ambiguous. It may sonal power to the licensee, and not transferable."
mean no more than undue familiarities, but A hcense to do a particular act need not be in writ-
ing: it amounts to nothing more than an excuse for
it may also refer to unlawful sexual com- an act which would otherwise be a trespass. But a per-
merce.* See Battery. manent right to hold another's land for a particular
3. A franchise; also, the place or district purpose, and to enter upon it at all times without his
consent, is an important interest, which ought not to
where any such special privilege is enjoyed :
as, the northern liberties of Philadelphia, the pass without writing.'
A licensee (of a mine) is not a lessee.'
northern and eastern liberties of Pittsburgh.
See Franchise, 1. 1 [4 South. Law Eev. 639 (1878), cases.
Jail liberties. See Jail. 2 Cook «. Stearns, 11 Mass. *537 (1814), Parker, C. J.;
LIBRARY. The room or place where Cheever v. Pearson, 16 Pick. 273 (1834), Shaw, C. J.;
Morgan «. United States, 14 Ct. CI. 327 (1878); 19 Ark.
books are kept, or the books in the aggregate.* 32-33; 41 N. J. L. 75; 31 Pa. 477.
LICENSE.^ Permission or authority : as, a 'Washburn v. Gould, 3 Story, 163 (1844), Story, J. : ,
license to do a particular thing.8 See Permit. Thomas v. Sorrell, 1 Vaugh. 351 (1706), Vaughan, C. J.;
Wood D. Leadbitter, 13 M. & W. •844 (1845).
. ' Louthan v. Commonwealth, 79 Va. 196 (1884). * Sun Printing, &c. Association v. Tribune Associa-
'People V. Morey, N. Y. (1881), Davis, J. tion, 44 N. Y. Super. Ct. 140 (1878), Sanford, J. ; 7 How.
s Barr v. Moore, 87 Pa. 393 (1878). Pr. 84.
« Exp. Jackson, 96 IT. S. 733, 735 (1877). « See 1 Washb. E. P. 398; 19 Ark. 33; 74 111. 185; 40
5 State V. Carr, 60 Iowa, 455 (1883), Day, C. J. Iowa, 456.
• Carter v. Andrews, 16 Pick. 9 (1834), Shaw, C. J. « Troy Iron, &c. Factory u. Coming, 14 How. 216
' F. licence: L. licentia, freedom to act: licere, to be (1853); Oliver v. Rumford Chemical Works, 109 V. S.
left free, to be allowable. 82 (1883), cases.
' Gibbons v. OgSen, 9 Wheat. 313 (1824), Marshall, ' Cook V. Steams, 11 Mass. *637 (1814), Parker, C. J;
C. J.; 33 How. 240. ' Wheeler v. West, 71 Cal. 129 (1886), cases.
 LICENSE 633 LICENSE

A license creates no interest in the land. It is a Vocations which need special sdrveillance, and
mere power or authority, founded on personal con- others which are fit subjects for the exaction of a rev-
fidence, not assignable, and revocable at pleasure, enue, are restricted to persons who procure a formal
unless cubsidlary to a valid grant, to the beneficial en- permit. This system enables the authorities to regis-
joyment of which its exercise is necessary, or_ unless ter all such licensees, and to hold them to answer for •
executed under such circumstances as to warrant the any disobedience of law. These licenses are always
interposition of equity. This is the result of the best in writing, in an ofQcial form, and run for a limited
considered cases. The doctrine of early cases, which
converted an executed license irto an easement, is A "I license " to be produced as a defense in a crimi-
term.
now generally discarded as being " in the teeth of nal prosecution is the right to do the thing in any
the statute of frauds.'" See Negligence: Ticket, mode permitted or not prohibited by law.^
Theater. Comprehends cases in which statutes declare that
2. Any conveyance of a patent short of persons of certain occupations may do the thing, as,
the entire monopoly, for the whole country druggists, officers of the law. and other persons al-
lowed to sell or distribute liquors. =
or a particular district. 2 In this sense, contrasted with contract. Thus, lot-
Liicensee. One who has transferred to tery charters are not contracts, but mere licenses,
him, in writing or orally, a less or different and, as such, subject to future legislation.* See Lot-
tery.
interest than the interest In the whole pat-
The privilege of running street cars may be in pur-
ent or an undivided part of such whole in- suance of a license, not of a contract, from the city
terest, or an exclusive sectional interest.'
authorities.^
Compare Assignee ; Chantee. Also contrasted with tax. A "license" is a right
A license to make and use a patented invention, as, granted by some competent authority to do an act
a machine, need not be in writing, nor recorded. It which, without such license, would be illegal. A
conveys neither an interest in a patent itself, nor a " tax " is a rate or sum of money assessed on the same
power authorizing a third person to construct the in- person, property, etc., of the , citizen. A license is
vention.'* issued under the police power. If the fee required for
A similar use of the WOTds license and licensee ob- a license is Intended for revenue, its exaction is an ex
tains in the law of copyright. See Draua. ercise ofthe power of taxation."
3. In popular understanding, a permission A "tax" upon a business is no more the granting
to do something which without the license of permission to engage in it than is the levying of a
tax upon the property employed in the business. The
would not be allowed. This is also the
distinction between a "tax" upon a business, and
legal meaning.5 what might be termed a "license," is, that the former
Permission granted by some competent is exacted by reason of the fact that the business is
authority to do an act which, without such carried on, the latter, as a condition precedent to the
right to carry it on. In the one case the individual
commission, wc^ld be illegal. ^ may rightfully engage-in the business without paying
Evidence of permission to exercise a trade the tax. A license may exist without the imposition
or calling in consequence of the payment of of a tax, and a tax may be imposed without the grant-
a tax or duty.' ing: of a license.'
A license issued under the act of Congress of June
Essentially the granting of a special privi-
lege to one or more persons, not enjoyed by 30^ 1864, " to provide internal revenue," conveys no au-
thority to carry on the business within a State. The
citizens generally, or, at least, not enjoyed by requirement of paying for such a license is only a
a class of citizens to which the licensee be- mode of imposing taxes on the business.^
longs. 8 ' [Abbott's Law Diet.]
' Johnson v. Skillman, 89 Minn. 97-99 (1683), Vander- 2 Commonwealth ti. Carpenter, 100 Mass. 206 (1868),
burg, J. See Jackson v. ^Philadelphia, &c. R. Co., 4
Del. Ch. 181 (1871), oases; 14 Ct. CI. 827, eases. 2 Commonwealth v. Kennedy, 108 Mass. 894 (1871),
2 [Curtis, Patents, § 212. cases.
"Potter V. Holland, 4 Blatch. 211 (1858): Act 4 July, * Stone V. Mississippi, 101 U. S. 814 (1879).
1836, §§ 13, 14; Kelly v. Porter, 17 F. R 519 (1883); ib.
528s Union
(1879). Passenger Ry. Co. v. Philadelphia, 101 U. S.
6.S8; 15 Barb. 310; 5 Fish. Pat. Cas. 411; 1 id. 3S7; 1
Holmes, 149; 21 Wall. 205; 12 Blatch. 202. ° Home Ins. Co. v. Augusta, 60 (3a. 637 (1874), Trippe,
< Baldwin v. Sibley, 1 Cliff. 155 (1858); Brooks v. J. See also Chilvers u. People, 11 Mich. 49 (1862); Burch
Byam, 2 Story, 641 (1843). V. Savannah, 42 Ga. 598 (1871); Fuller v. State, 48 Ala.
= Youngblood v. Sexton, 33 Mich. 419 (1875), Cooley, J. 293-94 (1872); Wiggins Ferry Co. v. East St. Louis, 102
• State V. Hipp, 38 Ohio St. 226 (1882), oases, Okey, 111. 560, 566-68 (1882), cases.
C. J. ; 60 &a. 530; 11 Neb. 547. ' Adler 11. Whitbeck, 44 Ohio St. 558-59 (1886), Min-
' [United States v. Cutting, 3 Wall. 443 (1805), Grier, J. shall, J ; Anderson v. Brewster, ib. 588 (1886); Home
s State V. Frame, 39 Ohio St. 413 (1383), Mollvaine, J.; Ins. Co. V. Augusta, 50 Ga. 537 (1874).
Anderson v. Brewster, 44 id. 587 (1886). B License Tax Cases, 5 Wall. 462 (1862), Chase, C. J.
 LICENTIA LIEN
633

It is the generally received doctrine that, in the case 2, 11. A willful untruth ; a falsehood. See
of useful employments, prohibition cannot be exer- Deceit; Decoy ; Estoppel; Falsehood;
cised under authority to license.^
The power to license is a police power, although it Fraud ; Represen'tation, 1 ; Slander.
may also be exercised for the purpose of raising rev- LIEGE. See Allegiance ; Feud ; Lord, 1.
enue.* LIEN.i A tie that binds property to a
A license authorizing a person to retail spirituous debt or claim for its satisfaction.^
liquors does not create a contract between him and
the government. The effect is merely to permit him Originally, a tie or bond. In the meta-
to carry on the trade under certain regulations and to phorical sense in which it is used in law, such
exempt him from the penalties provided for unlawful hold or claim upon a thing, for the satisfac-
sales.' tion of a debt, duty or demand, that it can-
A licensee to keep a pool-table tor hire takes his
license subject to such conditions as the legislature
not be taken away until the same be satisfied
may see fit to impose at any time.*
See Drummer; Lottery; Police, 2; Prohibition, 2. andA paid. 3 claim which one person has upon
hold or
LICEWTIA. See Imparlance. the property of another, as a security for
LICENTIOUSNESS. 1. Doing as one some debt or charge.* •
pleases, without regard to the rights of A right to possess and retain property,
others. See Liberty, NaturaL until some charge attaching to it is paid or
2. Lewdness, q. v.
discharged. 5
LICITATION.5 Where the co-heirs or In its widest sense, includes every case in
co-proprietors of a thing by undivided inter- which personal or real property is charged
est put it up at auction among themselves, with the payment of a debt.''
that it may become the property of the one Lienor. He who is invested with a right
who will offer the most for it. of lien ; he who may enforce a lien.'
The thing remains charged with unpaid shares.' Liens exist at common law, arising from usage, ex-
Where there is disagreement between the owners of press contractor contract implied from dealings; they
a vessel, there may be " licitation " and partition for a are recognized in equity and in admiralty; and are
moiety by order of' a court. The petition prays for a created also by statutory enactment. Common-law
sale, and distribution of the proceeds. The proceeding liens are displaced by surrender of possession. Liens
is justified by the necessity, in. the interests of com- by contract depend upon the terms of the contract,
merce, and the relief of the parties, when they have and statutory liens upon the construction of the stat-
reached a present actual inability to use the vessel.'
LIDFORD LAW. See Lynch Law. A court of equity will relieve as against a lien at
law, if, from difficulties, the parties are unable to ob-
utes.'
LIE. 1, «. (1) To exist; subsist: as, to " lie
in grant:" said of an incorporeal right; a tain justice at law.'
corporeal right is said to " lie jn deed." See
Grant, 1. 1 Le'-en. F. h'en, band, bond, tie; L. ligare,to bind.
(2) To be maintainable, sustainable : as, an ' Stephani v. Bishop of Chicago, 2 Bradw. 253 (1878),
" action lies." Compare Lay, 2. Pleasants, J.
' Stansbury v. Patent Cloth Manufacturing Co., 5
(3) To be concealed, or in ambush : as, to N. J. L. 441 (18)9), Kirkpatrick, C. J.
lie in wait. See Lying. * Hardy v. Norfolk Manufacturing Co., 80 Va. 418
(1885), Lacy, J.
■City of Burlington v. Bumgardner, 42 Iowa, 673 ' 1 Story, Eq. § 506.
(1876). • SuUivan v. Portland, &c. E. Co., 4 Cliff. 225 (1874),
* Wiggins Ferry Co. v. East St. Louis, 107 U. S. 373 Clifford, J.
(1832); State v. Hipp, 38 Ohio St. 225 (1882). See also 19 Am, LawHev. 7a3-89 (1885), cases; 1 Mas.
s Calder v. Kurby, 5 Gray, 693 (1850), Bigelow, J. See 221; 2 Story, 131; 13 Ala. 434; 12Fla. 85; 46 Ga. 5C8; 33
also Yan Hook v. City of Selma, 70 Ala. 363 (1881), 111. 594; 69 Me. 427; 1 Mich. 472; U Miss. 618; 85 N. C.
cases; Prohibitory Amendment Cases, 24 Kan. 724 432; 49 N. H. 362; 50 id. 75; 46 N. Y. 17; 4 Johns. 112; 12
(1881), cases; La Croix v. County Commissioners, 60 Wend. 262; 26 id. 472; 49 Barb. 244; 11 Ohio St. 68; 7
Conn! 329 (1882), cases; Chilvers v. People, 11 Mich. 40 Oreg. 434; 30 Pa. 277; 32 id. 360; 81 id. 132; 7 Heisk.
(1862) ;, State i). Holmes, 38 N. H. 227 (1859). 290; 2 Utah, 91 ; 21 Vt. 602; 48 Wis. 253; 2 East, 235; 15
* Commonwealth v. Kinsley, 133 Mass. 579 (1882), id. 554; 2 Camp. 582.
cases. ' See 10 Bencd. 557.
»L. licUatio: liceor, to offer a price. ' 1 Story, Eq. § 506; Wilkie v. Day, 141 Mass. 73 (1886),
* Hache v Ayraud, 14 La. An. 179 (1859): Pothier. cases; 4 Cliff. 225; 2 Flip. 413. Effect of taking secu-
'The Annie Smith, 10 Bened. 110-17, 135, 1.38 (1878), rity, 20 Cent. Law J. 405-7 (1886), cases.
» 2 Story, Eq. § 1216, a; 1 Ves. Jr. 416.
 LIEN 624 LIEN

I. The civil law, under the head of mort- A statutory lien implies a security upon the thing
gage and privilege, embraces the peculiar before 'a warrant to seize it is levied. It ties itself to the
property from the time it attaches to it, and levy and
securities which in the common and mari- sale are the means of enforcement. That is, proceed-
time law, and in equity, are termed liens. ings are not necessary to fix the status of the property.
See Maritime Lien. Thus, for example, in the absence of this statutory
II. At common law, the essence of a lien lien, it is necessary for a landlord to take proceedings
is the right of possession or retainer, until to acquire a lien on the property of his tenant.^
Although a lien on land constitutes no property or
the charge is satisfied. Meanwhile, the chat- right in the land itself, still it confers a right to levy
tel is regarded as in the custody of the law. oh the same to the exclusion of other adverse inter-
The doctrine is based upon principles of ests-acquired subsequently to the judgment, and when
natural equity and of commercial necessity ; the levy is actually made, the title of the creditor gen-
erally relates back to the time of the judgment, so as
it also prevents circuity of action.' See Par- to cut out intermediate incumbrances. Different reg-
ticular Lien. ulations, however, prevail in different jurisdictions,
Common-law liens are acquired by bailees: trades- and in some States neither judgments nor decrees for
men, carriers, innkeepers, farriers; by non-bailees: the paymient of money, except in cases of attachment
vendors, salvors, impounders of estrays, finders — for on mesne process, create a preference in favor of the
a reward earned, but not for trouble atid expense ; and creditor until the execution issuing on the same has
by usage of trade.
been duly levied on the land.'
III. In equity liens are most largely recog- Eq.uitable lien. Such lien as exists in
nized and liberally treated. They may exist equity, and of which a court of equity alone
without possession ; and they are enforced by can have cognizance. In most instances, this
decree of foreclosure and sale. Such are lien arises from some constructive trust. *
vendors' liens, liens by deposit of deeds, An equitable lien exists in favor of the assignee of
partnership liens, liens pendente lite, liens of a debt, on the money in the hands of the debtor.* See
Assignment, Equitable.
agreement. See Lien by Agreement, Vendor's
Lien. If a mortgagor is bound to insure the premises for
the benefit of the mortgagee, the latter, to the extent
A lien in equity is not, in strictness, a jus in re or a of his interest in the property destroyed, has an
jus ad rem; that is, neither a property in the thing it- equitable lien upon the iSioney due on a policy taken
self, nor a right of action for the thing. It is a charge
out by the mortgagor. This is the law though the
upon the thing; a right to possess and retain the prop-
erty, until some charge attaching to it is paid or dis- mortgagee may insure at the mortgagor's expense.^
charged.* See Fejidor's lAen.
General lien. See Particular Lien.
IV. In maritime law, liens do not require
Judgment lien. At common law, a judg-
possession. They obtain for supplies fur- ment is not a lien upon the land of the
nished, for seanaan's wages, for damages debtor; but now, in most of the States, by
from collision. See Maritime Lien.
V. Liens created by statute cover cases statute, alien attaches immediately upon the
where possession is, not had with consent of judgment being regularly docketed. See
the owner, or where exclusive possession is Judgment.
impossible. Such are the liens of mechanics, Iiien by agreement. A party by agree-
ment may create a charge in the nature of a
builders of houses, ship-builders, log-drivers,
lien on realty or personalty whereof he is the
material-men, some claims of judgment and
owner or in possession, which a court of
mortgage creditors, the claims of municipal
corporations, and of mutual insurance com- equity will enforce against him and volun-
teers or claimants under him with notice of
panies.' See Judgment Lien, Mechanic's
Lien, Municipal Lien. the agreement.^
Statutory liens have, without possesdon, the same I Morgan v. Campbell, 22 Wall. 390-92 (1874), cases,
operation and efflcienoy that existed as to common- Davis, J.
law liens with possession. Thus, a personal chattel on = Ward V. Chamberlain, 2 Black, 437 (1868), Oifford,
the premises, sold in the ordinary course of trade, Judge.
without knowledge of the lien, is not subject to its = 2Story, Eq. §1217.
operation.* * Trist V. Child, 21 Wall. 447 (1874), cases; Ketchum
1 3 Pars. Contr. 834. 1. St. Louis, 101 U. S. 316-17 (1879).
'Exp. Foster, 3 Story, 144-45 (1842), cases, Story, J.; 5 Wheeler v. Factors & Traders' Ins. Co., 101 U. S.
1 Story, Eq. § 506; 2 id. § 1215. 442 (1879), cases, Bradley, J.
3 3 Pars. Contr. 241. "Ketchum v. St. Louis, 101 U. S. 316-17 (1679), cases,
* Beall V. White, 94 U. S. 386 (1876), oases, Clifford, J. Harlan, J.
 LIEN 635 LIEN

Lien by deposit of deed. See Deposit, 3. the general maritime law, liens ex delicto are interior
Lien of a mortgage. See Mortgage. to lieins ex contractu. A prior lien for supplies is enti-
tled to a preference, as a mere question of rank, and in-
Lien pendente lite. See Lis, Pendens. dependent ofthe equitable marshaling of securities or
Maritime lien. This " privilege " or lien remedies, over a subsequent lien for damage upon the
is adopted from the civil law, and imports same voyage.^
a tacit hypothecation. The plaintiff may waive the lien in rem in admi-
It is the subiect-matter of the contract which must ralty and pursue his remedy by a suit in personam;
be maritime, not the mere object — the ship. Thus, or, he may institute an action at law, if the common
no lieu exists for compressing cotton upon land and law is competent to give a remedy."
before an affreightment contract, binding upon the Liens on vessels encumber commerce and are dis-
ship, is made.> couraged. While the owner is present, no lien is ac-
A jus in re, without right of possession; divested quired by a material-man; nor is any lien acquired
by a proceeding in rem peculiar to admiralty. This where the vessel is supplied or repaired in a home port.
A lien attaches to a foreign vessel only in a case of
lien is " secret," that is, it may operate to the prejudice
of general creditors, and of purchasers without no- necessity and in the absence of the owner. '
tice; wherefore, it is a stricti juris, and cannot be See Admiralty; Charter-party; Freight; Hy-
pothecation.
extended by construction, analogy, or inference."
Does not depend upon possession, being a right af- Meohanio's lien. A lien allowed to a
fecting the right itself, which gives a proprietary inter- person who furnishes materials or labor
est in the thing and a right to proceed against it to toward the construction or improvement of
recover that interest. The lieu adheres to the proceeds
in case of sale, follows the same, and may be attached property, as, a building, or a vessel.
Not intended to secure the contractor, but those
in admiralty.'
Confers upon its holder such a right in the thing that who lose by confiding in him. The owner of the prop-
he may subject it to condemnation and sale to satisfy erty is compelled to take care of the material-man and
his claim or damages. When the lien arises from a the laborer. The lien prevents one portion of cred-
tort committed at sea, it travels with the thing, wher- itors from being paid at the expense of the labor and
ever itgoes and into whosesoever hands it may pass. property of other creditors.*
The object of the proceeding in rem is to make the When such liens were unknown, the builder could
right available, to carry it into effect.* collect the contract price of the work from the owner,
A collision Impresses upon a wrong-doing vessel a and refuse to pay his subordinates, who could not sue
maritime lien. This the vessel carries with it. The the owner nor reclaim what they had contributed.
lien is inchoate at the moment of the wrong, but be- Now, the claims having been regularly filed, the prop-
comes perfected by subsequent proceedings. . It is in erty may be sold to pay them.* See Incidental; La-
borer.
the nature of the hypothecation of the civil law. It
may be lost by laches.' Municipal lien. A claim filed by the
Advances made upon the credit of a ship for neces- proper officer of a city or borough against
sary repairs or supplies in a foreign port create a mari-
time lien. The lien is a jus in re, an incumbrance on property specially benefited by a public im-
the property of the ship, which is not divested by the provementas,
; for the opening, grading, pav-
death or insolvency of the owner. The process in ing, or curbing of a street, the laying of
rem obtains the thing itself or a satisfaction out of it. water-pipes, the construction of a sewer, and
The interest is insurable.* other like municipal claims.
A carrier by water has a lien for freight. The lien Such liens are of purely statutory origin. The de-
is not an hypothecation, which remains a charge after tails of the work of improvement are provided for by
possession is given, but analogous to the common-law ordinance of councils. The requirements of the law
lien of a carrier by water, who is not bound to deliver
must be substantially complied with.*
the goods until the charges are paid, and, if he deliv-
ers them, the lien is lost.' " The Young America, 30 F. E. 792-800 (1887), cases.
Liens equalling or exceeding the whole value of the
» Norton v. Switzer, 93 U. S. 356 (1876); Leon v. Gal-
vessel should be enforced with diligence; otherwise ceran, 11 Wall. 190 (1870). See The Woodland, 104 U. S.
they will be postponed for laches in favor of subse- 180 (1881).
quent liens of navigation acquired without notice. By
• People's Ferry Co. v. Beers, 20 How. 401 (1857); The
» The Paola E, 32 F. K. 174 (1887), cases. Edith, 94 TJ. S. 518 (1876); 2 Law Q. Eev. 363 (1886).
= VandewAter v. Mills, 19 How. 89 (1856), cases, Grier, * Winder v. Caldwell, 14 How. 446 (1853), Grier, J.;
J.; 18 F. E. 743; 10 id. 489-96, cases. Bullock V. Horn, 44 Ohio St. 425 (1886).
5 The Lottawanna, 31 Wall. 698 (1874), Clifford, J. "For whom mechanics' liens are created, see 21
* The Eoek Island Bridge, 6 Wall. 215 (1867), Field, J. Cent. Law J. 306-9 (1885), cases. On the property of
"The China, 7 Wall. 68 (1868), cases, Swayne, J.; The married women, 23 id. 293 (1886), cases. As to the
Belfast, ib. 642 (1868), cases. waiver of, 19 id. 26a-65 (1884), cases.
' Merchants' Mut. Ins. Co. 17. Baring, 20 Wall. 163 •See 38 Pa. 3-39; 18 id. 26, 195; 25 id. 128; 61 id. 253,
<18ra), cases, Clifford, J. 399; 65 id. 146; 69 id. 352; 72 id. 82; 79 id. 346; 80 id. 505;
' Bags of Linseed, 1 Black, 113 (1861), Taney, C. J. 83 id. 369; 85 id. 366.
(40)
 LIFE
LIEN

Particular lien. The right to retain a of the vendee, or his negotiable promissoty note, or
his check, if unpaid, or any other instrument involving
particular piece of property until a claim merely his liability. Intent not to rely exclusively
against it alone is paid. General lien. A upon such security may always be shown. The lien
right to retain property generally, on account may be enforced against the vendor or vendee, as the
of charges attaching to any or all article or case may be, and all holding under him, except boiia
« articles. fide purchasers without notice.'
The earliest form of lien was specific in nature. The vendee is treated as the equitable owner of the
land, and the vendor as the owner of the money. The
"Wliere net arising from a contract of sale, this form purchaser may devise the land, even before a convey-
was confined to transactions in which the justice or
ance is made, and it will pass to his heir. The vendor
necessity of the case peremptorily demanded its al- stands seized for the benefit of the purchaser. In fine,
lowance. The right to a general lien existed at first
only by express contract, but it was in time allowed equity treats contracts respecting lands as if they had
to be claimed, by implication, from the general usage been speciflcally executed.^
See Idem, Sonans; Marshal, 2; Others; Besistby;
of trade, or the mode of dealing between the parties.'
See Bai^ajsce. Tax, a.
Partnership lien. See Pabtnership. IiIF£. 1. For purposes of inheriting or
Secret lien. By this lien the vendor of receiving a beneficial interest, begins with
personalty, who has delivered possession to conception.'
the purchaser, is treated as the owner until 2. Under the common law as to abortion,
the purchase money has been paid. began with quickening,* q. v.
Such arrangement, when it has served to give false 3. For the purpose of transferring civil
credit to the vendee, will be held to be a constructive rights, begins with birth.
fraud upon the creditor. The property will be viewed Civil life. Ends with extinction of civil
as the vendee's. The transaction is not changed by rights. Natural life. Ends with natural
assuming the form of a lease. The courts look at the
death.
purpose rather than at the form of the contract.
For these reasons chattel-mortgages are required to be As we have no civil death, nor, practically, any
recorded." See Mantime Lien; Sale, Conditional. forfeiture of land, there is now no occasion~to use the'
expressioQS.' Compare Death, Civil, Natural.
Vendor's lien; vendee's lien. A vend-
Joint lives. A gift or grant to two or
or's hen on land holds for any part of the
more persons, to be enjoyed while any two
- purchase - money which remains unpaid,
against all persons except a purchaser for a of them are aUve, is spoken of, most fre-
valuable consideration without notice. quently in English books, as for the joint
lives of the beneficiaries.
A vendee's lien arises in cases where he
*' No person shall , . be depraved of life, liberty,
pays the purchase-money prematurely, and
or property, without due process of law." '
the vendor, from inability or other cause, " Life " here means something more than mere ani-
does not complete the title. Both are equi- mal existence. The inhibition extends toallthoselimbs
table liens.' and faculties by which life is enjoyed — life and what-
An equitable lien also exists in favor of the vendor ever God has given with it, for its growth and enjoy-
of goods, provided no innocent third party has ac-
quired an interest in them, where the vendee by fraud " Life, liberty, and property " comprehend every
ment.'
conceals his insolvency and his intention not to pay, right known to the law.8
To secure rights of life and liberty, governments
and induces the owner to sell on credit.*
The seller of realty has a lien for the unpaid pur- are instituted. The foregoing constitutional provision]
chase-money; the buyer has an equitable title only.' secures the individual from the arbitrary powers of
This is true, though the seller made an absolute
conveyance by deed, and though the consideration is " Cordova jj. Hood, 17 Wall. 5-6 (1872), cases. Strong, J.
expressed to have been paid; unless there was an ex- ^1 Story, Eq. § 790, cases; Gunton u. Carroll, 101
press or implied waiver of the lien. Such lien is not TJ. S. 426 (1879); 2 Black, 460; 2 MoCrary, 103, 106; 3 id,
affected by the vendor's takmg the bonder bill single 493-94, cases; 17 F. B. 304; 68 Ga. 152; 34 La. An. 166.
As to priority of liens, see 37 Alb. Law J. 308-10 (1888),
' 3 Pars. Contr. 235. cases; as to assigning liens, 25 Am. Law Reg. 393-97
2 See Hervey v. Rhode Island Locomotive Works, 93 (1886), cases.
U. S. 673 (1876); 37 111. 370; 46 id. 488; 15 Conn. 384; 47 » 1 Bl. Com. 130.
Barb. 648; 5 Craiich, 461; 4 Wash. 591; Story, Sales, * 1 Bl. Com. 129.
» See 2 Bl. Com. 121.
§313.
= 3 Pars. Contr. 277-78; 4 Kent, 151. ' Constitution, Amd. Art. V.
' < Donaldson v. Farwell, 93 U. S. 633 (1876), cases; 19 ' Munn V. Illinois, 94 XT. S. 142 (1876), Field, J.
Cent. Law J. 2-7, 24-29 (1884), cases. 'Cummings v. Missouri, 4 Wall. 320 (1866); Baxte-
'Lewis V. Hawkins, 23 Wall. 125 (1874), cases. meyer v. Iowa, 18 id. 136 (1878).
 637 LIMIT
LIFT

government, unrestrained by the established principles

LIGHTNIH-a. A policy of insurance
of private rights and distributive justice.' which provides that the insurer shall be lia-
See Damages; Death; Homicide; Liberty, Per-
sonal; Punishment; Process, 1, Due, etc.; Security, 1, ble for fire by lightning, does not cover dam-
Personal; Survive, 2. Compare Natus; Vie; VrvERi:. age where there is no ignition. i
Life annuity. A yearly income during A tornado, due to electrical disturbance, and caus-
life. See Annuity. ing results like those produced by lightning, may be
"lightning; " and expert testimony is receivable that
Life assurance or insurance. Insur- lightning accompanying a tornado was the proximate
ance upon a life or lives. cause of a loss.''
Life policy. A policy of insurance upon a Where a horse is described in a policy against fire,
to which is attached a clause of indemnity against
life. lAfe risks. The obligations of a com-
lightning, " as contained in " a specified building, the
pany insuring lives — a life company. See animal need not be kept in the building all the time: it
Insurance. may be pastured in an adjoining field, and, if killed
Life estate. A right in realty (usually), there by lightning, the insurance is recoverable.^
limited by one or more lives. LIKS. Not, necessarily, identical with.*
Conventional life estate. Is created by the Likeness. Resemblance ; similitude. See

act of the paa-ties. Legal life estate. Is cre- Copy; Equal; Manner; Noscitur; Photo-
ated by construction and operation of law.^ graph. Compare Instar; Quasi; Stmtt.ts.
Legal life estates comprise: tenancy in tail after Likewise. In a will, may mean "also,"
possibility of issue is extinct; tenancy in curtesy;
rather than " in like manner." 5
tenancy in dower. Conventional life estates comprise :
A devise commencing with "likewise" was held to
an estate for the term of the grantee's own life; an be subject to a contingency mentioned in connection
estate for the life of another or the lives of others.
with a preceding gift.^
That for another's life is the lowest species of free- LIMB. See Body, 1 ; Mayhem.
hold. A grant not fixing the term nor mentioning
heirs is construed a life-estate. So is an estate held on Limb of the law. A metaphorical ex-
the uncertain contingency that it may possibly last pression, ofuncertain origin, for a member
for life. , And so also is a conveyance to a woman as of the legal profession.
long as she remains a widow, or during coverture; or
LIMIT. 7 To mai-k out, define, indicate
as long as one shall live in a certain house or place;
the extent or duration of.
or, till a sum be paid out of the income of an estate. '
LIFT. A promissory note is said to be " To limit " an estate is to define the period
of its duration. The words employed are
lifted when any person liable upon it pays it
or substitutes another obligation for it. thence termed "words of limitation," and
LICrAK. Goods sunk in the sea, but tied the act itself "limiting" the estate. See
Limitation, 3.
to a buoy that they may be found again. 3 Marking out an estate in lands, as, for a life, in tail,
Compare Flotsam; Jettison.
LIGHT. The right to the free access of or in fee-simple, is *' limiting " it.*
Limitation. Boundary ; circumscription ;
the sun's rays to one's windows. restriction; curtailment; termination. See
A species of easement; spoken of as "the right to Provided.
light and air," also as "ancient lights:" because the 1. In constitutional law, the bound set to
possessor must have enjoyed them for at least twenty
years before dlaiming the right. legislative power: as, constitutional limita-
At common law, light belongs to the first occupant tion. See Constitution.
during the time he holds possession. In England, this
doctrine is still recognized, the right arising by pre- 115 Mass. 208-11 (1874), cases; Ray v. Sweeney, 14 Bush,
scription, or from an express or implied grant. In 8-10 (1878), cases; Hayden v. Dutcher, 31 N. J. E. 218-
this country, the doctrine has been repudiated; at 84 (1878), cases; Tunstall u. Christian, 80 Va. 4 (1885),
most, the right can be acquired only by express grant. • cases; 2 Bl. Com. 14; 3 Kent. 466; 2 Washb. R. P. 02.
See Bay-window; Occupancy. ' Babcock v. Montgomery Co. Mut. Ins. Co., 4 N. Y,
False light. See Wreck; Yacht. 331-37 (1850), cases.
' Spensley v. Lancashire Ins. Co., 54 Wis. 433, 440-41
■ United States v. Crulkshank, 92 U. S. 554-55 (1875); (1882); Same v. Same, 63 id. 448 (1885). See Kenniston
Bank of Columbia v. Okely, 4 Wheat. 324 (1819). V. Mut. Ins. Co., 14 N. H. 341 (1843).
»2 Bl. Com. 130. ' Haws u. Philadelphia Fire Assoc. 114 Pa. 481 (1886).
>\ B!. Com. 292. « United States v. Wallace, 116 U. S. 400 (1886).
' See Story v. Odin, 12 Mass. '160 (1815), cases; Swans- » State Bank v. Ewing, 17 Ind. 74 (1861).
borough V. Coventry, 9 Bing. (23 E. C. L.) 593-94 (1832),, ' Paylor v. Pegg, 24 Beav. 105 (1857).
cases; Haversick v. Sipe, 33 Pa. 370 (1859); MuUen v. 'F. limite: L. limitem; limes^ a boundary.
Strieker, 19 Ohio St. 143-44 (1869), cases ; Keats v. Hugo, 8 Williams, Real Prop. 140.
 LIMITATION 628 LIMITATION

3. In deeds and devises, marking out an tory.

Iiimitation over. See Devise, Execu-
interest in property ; the restricted duration
-of an estate. Special limitation. A qualification
Collateral limitation. Gives an inter- serving to mark out bounds of an estate, so
est for a prescribed period, but makes the as to determine it ipso facto in a given event
right of enjoyment depend upon some col- without action, entry, or claim, before it
lateral event. would or might otherwise expire by force of
As, an estate vested in one person till another shall or according to the general limitation.
go to Rome, or to one and his heirs till the construc-
May be created by the words " until," " so long as,",
tion of a CQit'tain cathedral shall be finished.^ "if," "while," "during." The estate determines as
Conditional limitation. Where an es- soon as the contingency happens, and the subsequent
tate is so expressly confined and limited by estate becomes immediately vested. ^
the words of its creation that it cannot endure Words of limitation. Language which
for a longer time than till the contingency marks out the nature of an estate ; opposed
happens upon which the estate is to fail.' ^ ■to "words of purchase.''
When it is said, with reference to a conveyance to
As, when land is granted to a man " while " he coi^l:
tinues immarried, or " until " out of the income he A and his heirs, that "heirs " is a word of limitation
■shall make a specified amount. In such case the es- and not of purchase, the meaning is, that "heirs"
tate determines as soon as the contingency happens, marks out the nature of the estate taken by A — a fee-
and the next subsequent estate becomes immediately simple; and that his heirs take nothing directly (i. e.,
vested without any act to be done by him who is next by purchase) under such limitation. 2
"Words of limitation " are such as limit or mark
In expectancy. 2
out the estate to be taken by a grantee. At the pres-
" An estate upon condition" enures beyond the time
when the contingency happens, unless the grantor, ent day, when the heir is perhaps the last person to
his heir or assign, talies advantage of the breach of get the estate, these words are regarded simply as for-
the condition. 3 mal means conferring powers and privileges on the
A condition followed by a limitation over grantee — as mere technicalities. In ancient times
such words meant what they said, and gave the estate
to a third person in case the condition be to the "heirs" or the "heirs of the body" of the
not fulfilled, or there be a bieach of it.* grantee, after his decease, according to the letter of
A " condition " determines an estate after breach, the gift.* See If; Pkovidkd; Remainder; Shelley's
upon entry or claim by the grantor or his heir, or Case; Then; When.
the heir of the devisor. A " limitation " marks the 3. In statutes regulating judicial proceed-
• period which determines the estate without any act ings, the time beyond which a plaintiJf can-
on the part of him who has the next expectant inter-
est. Upon th^ happening of the prescribed contin- not lay his cause of action.*
gency, the estate first limited* comes at once to an
A bar to the alleged right of the plaintiff
end, and the subsequent estate arises. A " conditional to recover in the action, created by or arising
limitation " is, therefore, of a mixed nature, partaking out of the lapse of a certain time after the
both of a condition'and of a limitation: of a condition, cause of action has accrued, as appointed by.
because it defeats the estate previously limited; of a
limitation, because upon the happening of the con-
tingency the estate passes to the person having the Refers to the time which is prescribed by
law. 5
expectant interest, without entry or claim.* See the authority of the law during which a title
Condition.
may be acquired to property by virtue of
If the event upon which the estate is limited may
by possibility not occur within the term of a life in
simple adverse possession and enjoyment, or
the time at the end of which no action at
being and twenty-one years afterward, it is too remote.
. . Regai'd is' had to possible not to actual events. law or in equity can be maintained.^
That a limitation might include objects too remote is In the Eoman law, called prcRscriptio.
fatal to its validity, irrespective of the event.' See But the word also applies to criminal proceedings,
Alienation.
8 id. 85. 97; 15 Eng, Ch., 3 K., 54; 8 Sim. 615; 10 id. 57;
1 See 4 Kent, 128; 1 Washb. E. P. 315-16. 1 Jarm. Wills, 233.
'8 Bl. Com. 155; The Fifty Associates v. Howland, ' Henderson v. Hunter, 59 Pa. 340 (1868): Smith, Ex.
11 Mete. 102 (1846). Int. 12; Fearne, Eem. 10-13; 3B1. Com. 155.
s [3 Bl. Com. 155. See also 4 Kent, 121. 2 [Mozley & W. Law Diet.
< Proprietors of Brattle Square Church v. Grant, 3 " Williams, Eeal Prop. 245; 3 Washb. E. P. 604.
Gray, 147 (1855), Bigelow, J. See also 4 Hughes, 694 ; 16 1 [3 Bl, Com. 307.
Me. 160; 5 Neb. 407; 73 N. C. 125; 5 E. I. 312; 76 Va. » Christmas v. Eussell, 5 Wall. 300 (1866), Clifford, J.
145; 18 Ves. 433; 3 Washb. E. P. 457-60. ' 8 Campbell v. Holt, 115 U. S. 632 (1885), Miller, J.,
« Donohue v. McNichol, 61 Pa. 78 (1869): 3 Gray, 163; quoting Angell, Lim. Actions.
 LIMITATION 639 LIMITATION

as to which the period is extended in some proportion The statutes are entitled to the same respect as
to the gravity of the offense. An indictment for mur- other statutes, and are not to be explained away.'
der may be found at any time during the life of the Affecting existing rights, they are not unconstitu-
alleged felon. The limitation for other offenses varies tional, ifa reasonable time is given for the commence-
from years to days, as from ten years to sixty days. ment of an action before the bar takes effect." See
At common law, there is no absolute limitation.' Impair; Remedy.
Under the laws of the United States, offenses not They apply, in terras, to legal remedies. Courts Of
capital, except as provided in Rev. St., § 1046, may not equity are bound only in cases of concurrent jurisdic-
tion. In other cases, these courts act by analogy, not
be prosecuted after three years."
The statute begins to run from the cessation of in obedience to the statutes.'
criminal conduct, as that of carrying concealed weap- But a court of equity will not apply the statute, by
analogy, when it would be against conscience to do
ons.3
The most important English statute relating to civil so — when wrong and injustice would be wrought.*
suits is the famous Statute of Limitations of 21 If the facts on which any right of action is based
James I (1634), o. 16; the general principles of which have been fraudulently concealed, or if the fraud is
underlie, or are embodied in, the American statutes. such as conceals itself, the statute runs from the dis-
At the same lime, each State has its distinctive legis- covery of the fraud, or of such information as, dili-
lation, relating to both civil and criminal suits. Pro- gently followed up, would discover it.'
visions of lite nature exists in acts of Congress. When the object is to obtain relief against a fraud,
Equity and admiralty courts apply the principle of the bar of the statute does not begin to run until the
these statutes as a matter of discretiop. The periods fraud is discovered or becomes known to the party in-
of time vary with the law of the place or courts.* jured by it. . . In suits in equity, where relief is
The piUTJOse of such -statutes is to preserve the sought on the ground of fraud, the authorities, with-
peace, and to prevent perjuries which might ensue if out conflict, hold that where the ignorance of the f laud
men were allowed to bring actions for injuries com- has been produced by aifirmative acts of the guilty
mitted at any distance of time.' party in concealing the facts from the other, the stat-
The statutes confer no right of action. They re- ute will not bar relief, provided that suit is brought
strict the period within which the right, otherwise un- within proper time after the discovery of the fraud.
limited, might be asserted. They are founded upon We also think that in suits in equity the decided weight
the general experience that claims which are valid are of authority is in favor of the proposition that where
not usually allowed to remain neglected. The lapse the party injured by the fraud remains in ignorance
of years, without any attempt to enforce a demand, of it, without any fault or want of diligence or care on
creates, therefore, a presumption against its original his part, the bar of the statute does, not begin to run
vaUdity, or that it has ceased to subsist. The presump- until the fraud is discovered, though there be no spe-
tion is made by these statutes a positive bar; and they cial circumstances or efforts on the part of the party
thus become statutes of repose, protecting parties committing the fraud to conceal it from the knowledge
from the prosecution of stale claims, when by loss of of the other party. On the question as it arises in ac-
the evidence by the death of some witnesses, and the tions at law, there is in this count^a very decided
imperfect recollection of others, or the destruction of conflict of authority. Many courts hold that the rule
documents, it might be impossible to establish the is sustained in courts of equity only on the ground that
truth. Their policy is to encourage promptitude in these courts are not bound by the mere force of the
the prosecution of remedies. For this purpose they statute as courts of common law are, but only as they
have adopted its principle as expressing their own
prescribe what is supposed to be a reasonable period." rule of applying the doctrine of laches in analogous
Statutes of limitation are necessary to the welfare
of society. The lapse of time carries with it the cases. They, therefore, make concealed fraud an ex-
means of proof. They do not impair the remedy: ' ception on purely equitable principles. On the other
they require its application within the reasonable hand, the English courts, and the courts of Conuecti-
cut, Massachusetts, Pennsylvania, and others of great
time specified.^
The common law fixed no time for bringing actions. respectabihty, hold that the doctrine is equally appli-
cable to cases at law. The weight of judicial au-
Limitations derive their authority from statutes.'
thority, as stated, is in favor of applying the rule to
1 See Whart Cr. PI. & Pr. §§ 316-89, cases; 1 Bish. Cr. suits at law as well as in equity. This is founded in a
Pr. §405; 3B1. Com. 307. sound and philosophical view of the principles of the
!R. S. § 10i4; 1 Sup. E. S. p. 204.
'United States v. Owen, 3i F. B. 537 (1887).
'See 3 Bl. Com. 307; Levy v. Stewart, 11 Wall. 249 1 United States v. Wilder, 13 Wall. 2X (1871); Spring
(1870). ■u. Gray, 5 Mas. 523 (1830).
»3B1. Com. 307. s Terry v. Anderson, 95 U. S. 633-33 (1877), cases.
' Eiddlesbarger v. Hartford Ins. Co., 7 Wall. 390 ' Hall V. Law, 103 U. S. 466 (1880). See also Chewett
(1368), Field, J. See also Spring v. Gray, 5 Mas. 6S3 V. Moran, IT F. B. 828-24 (1883), cases; Hutoheson v.
(1830), Story, J. Grubbs, 80 Va. 3.57 (1885), cases.
'Edwards v. Kearzey, 96 U. S. 603 (1877); Levy v. * Buckingham v. Ludlum, .37 N. J. E. 147(1883); 17
Stewart, 11 Wall. 849 (1870); United States v. Wiley, ib. F. B. 871.
Bl3(1870); 17F. R. 140. ' Yancy v. Cothran, 33 F. R. 689 (1887), cases. The
8 United States v. Thompson, 98 U. S. 489 (1878). courts have engrafted this rule on R. S. § 5057.
 LIMITATION LIMITATION
630

statutes of limitations. They are enacted to prevent that a claim is still due, will take a case out of the
frauds; to prevent parties from asserting rights after statute.
the lapse of time had destroyed or impaired the evi- A disability to prevent the statute from running
dence which woMd show that such rights never must exist at the time the action accrues; and, after
existed, or had been satisfied, transferred, or extin- the statute has once commenced to run, no subse-
guished, if they ever did exist. To hold that by quent disability will interrupt it.^
concealing a fraud, or by committing a fraud in a A defendant who desires to avail himself of the
manner that it concealed itself until such time as the statute as a defense must raise the question in plead-
party committing it could plead the statute of limita- ing, on the trial, or before judgment.^
tions to protect it, is to make the law which was de- See further Accrue, 3; Acknowledguent, 1; CoN-
signed- to prevent fraud the means by which it is made CEAi., 4; Coupon, Bond; PiYiaENT, Part; Fossessiok,
successful and secure. And we see no reason why this Adverse; Promise, New; Bepose; Sate; Stale; Stat-
principle should not be as applicable to suits tried on ute, English.
the common-law side of the court's calendar as to Iiimited. Confined; restricted in durar
those on the equity side. . . When there has been
no negligence or laches on the part of a plaintiff in
tion, extent, or scope: as, a limited — ad-
conjing to the knowledge of the fraud which is the ministration, divorce, fee, jurisdiction, lia-
foundation of the suit, and when the fraud has been bility, partnership, qq. v. Compare Absolute.
concealed, or is of such a character as to conceal it- LINE.3 1, Exterior limit; limit of posses-
self, the statute does not begin to run until the fraud sion or ownership ; boundary.
Is discovered by, or becomes known to, the party If a boundary line runs to or by the Hne of an ob-
suing, or those in privity with him. ^ ject, such as a house or a lot, ordinarily the exterior
The California statute applies to suits in equity as limit is intended. And the grantor in a deed may use
well as actions at law ; and the statute provides all ex- the word in this sense with respect to the line of a
ceptions to the running intended to be allowed. The
remedy at law being complete, there is no ground for street. ' But the general rule is that a grantee takes
only to the middle of a street as a boundary, unless
equitable relief.^ the deed or the character of the locality indicates a
The presumption of a statute of limitations extends different intention. It will not ordinarily be presumed
,only against individuals: their personal interest in- that the grantor intends to reserve a narrow strip of
duces vigilance in the enforcement of their claims. It land, of no special use to him, and of no value, should
does not extend against the state, which acts through
the way be discontinued.* See further Along; Bound-
numerous agents, having no such inceutive to prose- ary; Thread; Wall.
cute her claims. She, therefore; is not embraced in a
■-3. A connected series, as, of facilities,
statute, unless expressly designated or necessarily in-
cluded by the nature of the mischiefs to be remedied.'
means of conveyance, transportation, or
See Laches ; Tempus, Nullum, etc. transmission.
The statute runs against a cestui que tjtisf from the As, a continuous line, intersecting lines, competing
time he learns that the trustee repudiates the trust lines of railroad or telegraph communication. See
and claims to hold the estate as his own; * from the Carrier, Common; Connection, 1 ; Extend; Parallel;
time that the trust is openly disavowed by the trustee Telegraph.
Insisting upon an adverse interest which is clearly 3. The connection between persons de-
made known to the beneficiary. ^ scended from a common ancestor ; course of
The statute does not begin to run till the cause of
descent.
action is complete and the party capable to sue; but,
once begun, nothing stops the running. In civil mat- Direct line. Persons immediately de-
ters, part payment, or an explicit acknowledgment scended one from the other. Collateral line.
Persons descended from the same ancestor,
' Bailey v. Glover, 31 Wall. 347-50 (1874), cases, Miller, but not from each other.
J. See also United States v. Beebe, 127 U. S. 347 (1888); Paternal line. Descent as traced through
Smith «. Clay, Ambl. 645 (1767): 3 Brown, Ch. *639-43, the father. MaternallinB. Descent traced
Ld. Camden; Cholmondeley v. Clinton, 1 Jac. & W.
138-41 (1820), Pulmer, M. R. ; Gresley ?;. Monsley , 4 De G. thjpough the are
mother.
These lines in turn spoken of as ascending^ and
& J. *95-96 (18B9), cases; Jackson v. McNabb, 39 Ark.
116 (1882), Ealrin, J.; Angell, Lim, 25. descending: proceeding upward, and downward.
2 Chemical Nat. Bank v. Kissane, .32 F. E. 429 (1887), Lineal; lineage. Lineal implies immedi-
Sawyer, J.; Norris v. Haggin, 28 id. 282 (1686). ate descent, direct course of descent : 5 as,
3 Weber v. Harbor Commissioners, 18 Wall. TO (1873);
United States v. Thompson, 98 U. S. 489 (1878); United ■ McDonald v. Hovey, 110 U. S. 631 (1684), cases: B. S.
States V. Nashville, &c. B. Co., 118 id. 125 (1886), cases;
United States v. Beebe, 17 F. E. 36, 39-41 (1883), cases: = Eetzer v. Wood, 109 U. S. 187 (1883), cases.
§1008.
* L. linea, thread, string.
127 U. S. 344-47 (1888), cases.
4 United States v. Taylor, 104 U. S. 222 (1881), cases; ■> Hamlin v. Pau-jioint' Manuf. Co., 141 Mass. 56 (1886),
4 Hughes, 312, 317; 37 N. J. E. 144; 59 Tex. I,i0, cases. cases.
1 Speidel v. Henrici, 120 U. S. 386 (1887), cases. Gray, J. 'SeeSBl. Com. Ch. XIV.
 LINGUA 631 LIQUOR

lineal — consanguinity, descent, warranty, When, after duties have been liquidated, a reliqui-
dation takes place, the date of the latter is the final
gg. V. See also Ancestor; Pedigree.
liquidation for purposes of protest.'
LINGUA. See Medietas.
Liquidator. One who settles up the
LINK. A " link in the chain of evi- business affairs of an insolvent — individual,
dence,' a" link in the chaint>f title," a " link partnership, or company.
in the record," are common figurative ex- Under the English bankruptcy act of 1869, the cred-
pressions. itors of an embarrassed person may resolve that his
Such "links" may often be supplied by presump- affairs shall be liquidated by a trustee, with or with-
tion,' g.V. See also Chain. out a committee of inspection. The property of the
LIQUIDATE.2 To clear off, clear up, debtor thereupon vests in the trustee, who has the
clear away. powers of a trustee in bankruptcy. By resolution, at a
general meeting, the creditors may close the liquida-
1. To clear away, to lessen debts, to pay. 2 tion an4 discharge the trustee. See Wimd Up; Bake,
To liquidate a balance is, in common par- a (2), National.
lance, to pay it.s LIQUOR. "Liquors" commonly in-
2. To determine the amount to be paid : as, cludes all liquors that are spirituous, vinous,
to liquidate a debt, a demand, damages. inferior fermented, and malt.^
Liquidated. A debt or demand is liqui- Intoxicating liquor. Any kind of
dated when the amount due is agreed upon liquor that will intoxicate, whether distilled
by the parties, or is fixed by the operation of or fermented.'
law.* Unliquidated. Undetermined, un- In Massachusetts, any beverage that contains more
ascertained. than three per centum, of alcohol, by volume, at sixty

Idguidated account. Has its amount cer- degrees Fahrenheit.*

Spirituous liquor. Distilled liquor. All
tain and fixed, by act of the parties or opera-
spirituous liquor is intoxicating ; yet all in-
tion of law.5
Liquidated damages. When the amount toxicating liquor is not spirituous, as, fer-
thereof is ascertained. 5 See Damages, Liqui- mented liquor. 5
dated. " Spiritous " was held to mean " spirituous " liquor.'
Vinous liquor. Liquor made from the
Liquidated debt. Has certainty as to what
juice of the grape.'
is due." Liquor dealer. Selling an occasional
Liquidated demand. Has the amount as- drink out of a bottle was held not to consti-
certained, settled, by agreement or other- tute carrying on the business of a retail
wise.'
Liquidating. The member who settles liquor dealer.^
Liquor shop. A house where spirituous
the affairs of a partnership, by adjusting
liquors are kept and sold. 9
claims and paying debts, is called the " liqui- Ale. Held to be within the terms of a statute pro-
dating "partner. See Liquidator. hibiting the sale of " strong or spirituous liquors '*
Liqmdation. The act or matter of ad- without license.'" See Cider.
justing claims of indebtedness, or for dam- Board, &c. v. Louisville E. Co., 109 id. 331, 328 (1883);
N. O. Board, &e. v. Hart, 118 id. 140 (1886).
Board of Liquidation. In Louisiana, in 1874, an 1 Eobertson v. Downing, 137 U. S. 60S (1888).
agency of the State government to carry into effect a " People V. CriUey, 20 Barb. 348^9 (1855); State v.
plan of consolidating its outstanding debt and convert- Brittain, 89 N. C. 576 (1883).
ing it, with the consent of creditors, into a uniform 8 State V. Eeynolds, 47 Vt. 299 (1875); Conmiissioners
bond, with the same rate of interest, and providing V. Taylor, 21 N. Y. 173 (1860).
additional security for the payment of the new bonds.' • Mass. Act 33 April, 1880, 191, c. 339, § 5.
» Commonwealth v. Grey, 3 Gray, 503 (1854). See
1 See 2 Whart. Ev. §§ 1347, 1354. State V. Haymond, 20 W. Va. 31 (1883), cases; State v.
' L. L. liguidare, to make liguidus. clear. Oliver, 86 id. 436-26, 431-33 (1885), cases.
• [Fletcher u United States, 8 Wheat. 863 {18S:3), « Commonwealth v. Burke, 15 Gray, 408 (1860).
Etory, J.; Eichmond v. Irons, 121 U. S. 61 (1887). ' Adler v. State, 55 Ala. 34 (1876); 38 Iowa, 467.
8 United States v. Jackson, 1 Hughes, 531 (1875): E. S.
'* Hargroves v. Cooke, 15 Ga. 333 (1854); 48 Conn. 365.
'Nisbet V. Lawson, 1 Ga. 287 (1846).
•Eoberts v. Prior, 20 Ga. 563 (1856). §§ »3342, 3244. v. State, 6 Baxt. 634 (1873).
Wooster
' Mitchell V. Addison, 30 Ga. 53 (1856). '» Nevin v. Ladue, 3 Denio, 43, 437 (1846;; 20 Barb. 246;
B See Martin v. Kirk, 3 Humph. 531 (1841). 105 Mass. 480; 30 Conn. 56; 33 Ind. 206; 12 Mo. 389; 44
» Durkee v. Board of Liquidation, 103 U. S. 647 (1880); N. H. 511.
 LIQUOR 633
LIQUOR

Beer. The courts will take judicial notice that " CJhampaigne wine " was held to be a liquor.^
"lager beer" is a malt liquor.* " Port wine " is an intoxicating liquor. ^
In the absence of evidence to the contrary, beer Alcohol and gum-camphor mixed do not constitute
will be presumed to be an intoxicating liquor.^ a "spirituous liquor." ^
In section six of the Illinois Dram-shop act, "intox- Whatever is generally and popularly known as in-
icating liquor" means spirituous, malt, or vinous toxicating liquor, such as whiskey, brandy and gm,
liquors. Proof, therefore, of a sale of beer (to a is within the prohibitions of the Kansas act of 1881,
minor) without showing the kind of beer, and whether and may be so declared as matter of law by the
malt, vinous, or spirituous, is not sufficient to sustain courts, — that act prohibiting the sale of intoxicating
an indictment. There are kinds of beer which are liquors except for medical, scientific, and mechanical
neither a malt liquor nor intoxicating. ^ purposes, and providing that no one shall sell for the
When a witness testifies to the sale of beer under excepted purposes without a druggist's permit from
circumstances which make the sale of any intoxicat- a probate judge. Whatever is generally and popu-
ing liquors unlawful, the prima facie inference is that larly known as medicine, an article for the toilet, or
the beer was of that quality declared by statute to be for culinary purposes, recognized, and the formula for
an intoxicating liquor.* its preparation prescribed, in some standard authority,
"Whether a particular kind, as, "Schenck beer," is and not among the liquors ordinarily used as intoxicat-
Intoxicating, may be a question of fact for a jury; ing beverages, such as tincture of gentian, paregoric^
that it contains alcohol may not be conclusive upon hay rum, cologne, essence of lemon, are not within the
this point.6 So as to "hop beer." * statute, and maybe so declared as matter of law ^y
" Strong beer " is within the meaning of the term the courts, notwithstanding such articles contain al-
■*' strong or spirituous liquors," in a statute to suppress cohol and may produce intoxication. But as to arti-
intemperance.' cles intermediate between these two classes, articles
Cider. An averment of the sale of "intoxicating not known to the United States dispensatory or other
liquor " was held sustained by proof of the sale of un- standard authority, compounds of intoxicating liq-
fermented cider. ^ uors with other ingredients, whether provided for a
Whether ale and cider, after fermentation, are in- single case, or compounded upon a formula and sold
toxicating liquors, is a question for a jury.* Tinder a specific name, as, 'bitl:ers, cordials, tonics^
Neither cider nor crab-cider are included within the whether they are within or without the statute, is a
term " spirituous liquors, wine, ale, porter, beer, or question of fact for the jury alone. The test is tjiis:
any drink of like nature." i" If the compound be such that the distinctive character
Gin. • The court will take judicial notice that gin is and effect of intoxicating liquor are gone, that its use
an intoxicating liquor. »i as an intoxicating beverage is practically impossible,
Fop. Where the charge was selling "intoxicating by reason of the other ingredients, then it is not in-
liquors," and the proof was a malt liquor of an intoxi- cluded within the statute. But if the intoxicating liq-
cating quality called " pop," a conviction was sus- uor remains as a distinctive force and the compound
tained.'" is reasonably liable to be used as an intoxicating
Bum. This is a spirituous liquor, within a statute beverage, then it is within the statute.*
against selling such liquor without first paying a license Any State may prohibit the manufacture and sale
tax. 13 of intoxicating liquors for use as a beverage.*
Wine. Is a fermented, i^ot a spirituous, liquor, i* At common law, traffic in intoxicating liquors was
Whether " blackberry wine " is a spirituous liquor a lawful business. The original of the statutes licens-
was left to a jury to decide.** ing the traffic is found in 5 and 6 Edw. "VI (1552), c. 25."
Iq the exercise of the police power, a State may
1 Watson V. State, 55 Ala. 158 (1876). commit the sale of liquor to any class of persons the
a State v. Teissedre, 30 Kan. 484 (1883): 6 id. 371; 16
Mo. 389; 14 Ohio, 586; Brifiat v. State, 58 Wis. 39, 44 legislature deems peculiarly fit for the duty.''
Under a statute which imposes a fine for selling
(1883): 3 Park. Cr. R. 9; 21 N. T. 173; 63 id. 277; 11 E. I.
liquor to a minor, no conviction can be had if ttie ac-
592.
cused exercised reasonable caution, and honestly be-
8 Hansberg v. People, 120 HI. 21, 25 (1886), cases.
lieved that the purchaser was of age.^
* Myers v. State, 93 Ind. 253 (1883), cases: 5 Grim. Law An injunction will not be granted by a Federal court
Mag. 360-63 (1884), cases; Commonwealth w. Magee,
141 Mass. 113 (1886). iKizer v. Randleman, 5 Jones L. 428 (N. C, 1858).
« Commonwealth v. Bios, 116 Mass. 56 (1874). estate u Packer, 80 N. C. 439 (1879).
« State V. McCateerty, 63 Me. 223 (1874). 3 State V. Haymond, 20 W. Va. 18 (1882).
7 Excise Commissioners v. Taylor, 21 N. Y. 173 (1860). * Intoxicating-Liquor Cases, 25 Kan. 766-68 (1881),
8 Commonwealth v. Dean, 14 Gray, 99 (1859). Brewer, J., citing 38 Iowa, 426; 130 Mass. 68; 33 Vt.
■8 State V. Biddle, 54 N". H. 379 (1874); 69 Me. 133. 659. See generally 5 Crim. Law Mag. 360-65 (1884),
10 State V. Oliver, 26 W. Va. 422, 425, 427 (1885). cases.
1 1 Commonwealth v. Peckham, 2 Gray, 514 (1854). fi Prohibitory-Amendment Cases, 24 Ean. 722 (1881),
ii! Godfriedson v. People, 88 III. 284 (1878). cases.
'3 United States v. Ajigell, 11 F. R. 34 (1881). 8 State V. Hipp, 38 Ohio St. 219 (1882), Okey, C. J.
1* Caswell V. State, 2 Humph. 402 (1841); State v. ' Koester v. State, 33 Kan. 32 (1886).
Moore, 5 Blackf. *118 (1839); 19 Conn. 493. 8 Kreamer v. State, 106 Ind. 192 (1885), cases: 25 Am.
ift State V. Lowry, 74 N. C. 121 (1876.) Law Reg. 517 (1885) ; ib. 518-21, cases pro and con.
 LIS 633 LIS

to prevent a State court from enforcing Its decree re- suit in equity, will, if the suit is prosecuted with rea-
straining plaintiff from selling liquors, and abating his sonable diligence, be bound by the final decree, not-
saloon as a nuisance, under State law, after the case withstanding any intermediate alienation. The doc-
has been removed to the Federal court. The injury trine is founded on the policy that property which is
to the plaintiff may be fully compensated at law, in specifically sued for shall abide the result of the suit;
the event of the removed case being decided in his for, otherwise, by successive alienations, the litigation
favor.' might be indefinitely prolonged. It relates only to
A person who knowingly purchases liquor from one changes of ownership, but assumes that the property
unauthorized to sell it does not aid and abet the itself will remain either identically the same or be at
crime.' least traceable into some new form in which it can be
See further ^lcohol; Bar, 2; Bottle; Comuekce; reached. The doctrine will not be extended without
Condition; Distiller; Dram; Drummer; Drunkard; strict necessity. A bill in equity seeking to recover
Health; Indian Country; Intemperate; Intoxicate; the value of wood out upon realty, the title of which
Keep; Merchant; Morals; Option, Local; Police, 2; was held to be in the complainant, cannot be main-
Privilege, 3; Prohibition, 8; Repeal; Eetail; Sa- tained: itwould be in effect an action of trover and
loon; Tavern. conversion. '
Ills. A dispute, a controversy; a suit at The doctrine, as generally understood, is not based
law. upon presumptions of notice, but upon a public policy
imperatively demanded by a necessity which can be
Lis alibi pendens. An action pending overcome in no other manner.^
elsewhere: a. plea that a suit is pending in Lis pendens ia ssiid to be general notice to all the
another court for the same cause of action. world. The doctrine rests upon public policy, rather
Not good when the litigation is in a court of foreign than upon notice: the law does not allow parties to
jurisdiction. The rule is modified by courts of equity give to others, pending the litigation, rights to prop-
and admiralty, which will require a plaintiff who has erty in dispute so as to prejudice the opposite party.
a suit elsewhere for the same cause, and with an A lis, to affect a person's power of alienation, must be
equally advantageous remedy, to elect which he will a lis in which a decree could be entered against him
prosecute.3 as to the property. In the earlier cases it -was held
Lis mota. A controversy begun. that lis pendens was notice to all the world.^ '
Among the actions to which the dpctrine applies are
A declaration which is hearsay evidence is receiv-
able of a matter of general interest, provided it be suits : to foreclose unrecorded mortgages, and vendors'
liens, to set aside a decree of partition, to enforce the
made ante litem motam — before any controversy
arose upon the particular matter. People are not specific performance of a contract for the sale of
wholly indifferent in view of threatened litigation. realty, to enforce a charge against realty whatever
The rule was familiar to the Roman law; but in that the form of the action. Actions in the nature of cred-
law li8 mota refeired to the commencement of the itors' bills have been considered as giving notice to
action. With us, lis has its earlier and larger sense of subsequent purchasers of the particular property in
controversy, strife. Opposed to ante litem motam is controversy.*
The rule does not apply to negotiable securities
yost litem, motam.* purchased before maturity. And the considerations
Lis pendens. A suit in progress : a suit which exclude the operation of the rule apply whether
pending. Pendente lite. While a suit pends ; they were created during the suit or before its com-
during the continuance of litigation. mencement, and to controversies as to their origin or
Administration may be granted pendente lite, till
the validity of an alleged will be determined. An al- transfer.
He who 5 intermeddles with property in litigation
lowance to a wife, as complainant or respondent in does so at his peril, and is as conclusively bound by
proceedings for a divorce, is alimony pendente lite. the results of the litigation, whatever they be, as if he
And he who buys realty, in actual litigation in court, had been a party from the outset.'
is a purchaser pendente lite, or a holder with notice of A lis pendens, duly prosecuted, and not conclusive^
lis pendens, and affected in his title by the result. is notice to a purchaser so as to bind his interest by
A purchase made of property actually in litigation, the decree; and the lis pendens begins from the sei*v-
pendente lite, for a valuable consideration, and with- ice of the subpoena after the bill is filed. This is no
out express or implied notice in point of fact, affects more than the adoption of a rule in a. real action at
the purchaser as if he had such notice.' ' Gardner v. Peckham, 13 R. I. 103-104 (1880), Durfue,
The doctrine of lis pendens is that realty, or, to
some extent, personalty, when put in litigation by a C. J., citing Bellamy v. Sabine, 1 De G. & J. *666 (1857).
' Freeman, Judg. § 191, cases.
> Wagner v. Drake, 31 F. R. 851 (1887). 3 Dovey's Appeal; 97 Pa. 100 (1331), Paxson, J. ; 1 De G.
= State V. Teahan, BO Conn. 100 (1883): 28 Pick. 476; 84 & J. 580; 2 Rand. 93.
id. 3C6; contra, 2 Head, 135. ' Smith V. Kimball, 30 Kan. 485 (1887), cases.
3 Lynch v. Hartford Fire Ins. Co., 17 P. R. 628 (1883), 5 County of Warren u. Marcy, 97 U. S. 105-7 (1877),
Lowell, J., citing 28 Ch. Div. 397; 23 id. 825. cases, Bradley, J. ; County of Cass v. Gillett, 100 id. 593
« See 1 Greenl. Ev. § 131; 1 Whart. Ev. §§ 193, 218; 4
(1879).
« Tilton V. Cofield, 93 U. S. 168 (1876), cases, Swayne,
Campb. *417; 1 Pet. 337; 77 Va. 689.
5 1 Story,, Eq. §405. Justice.
 UST LITTORAL
634
common law, where, if the def eudant aliens after the an instrument cannot arrive at its meaniBtg.l
pendency of the writ, the judgment will overreach See CONSTEUCTION.
Buch alienation. The rule may ^ometimes operate LITEEAL. According to the words,
with hardship, especially where the notice is construct-
ive, as in many cases, but general convenience re- language, or exact terms: as, a literal con-
quires it.^ struction of a document, a literal perform.-
Litis contestatio. A statement in de- ance of a contract. See Liteea ; Obliteea-
nial ;a defense : as, a general answer of de- TION.
nial; in admiralty, a jbinder of general LITEBABY. Applied to property, re-
issue. 2 fers to the right an author has in his own
Litis dominus. See DoMmus.
composition, so that no other person, with-
Litis magist^r. He who controls a suit.' out his leave, may publish or make profit of
LIST. 1. A catalogue, roll, or statement, the copies: the production of an original
more or less orderly in arrangement, of work by the exertion of the rational powers.^
names, causes, issues, etc.* Compare ClL- SeeCoPYEiGHi; Occupancy.
ENDAE, 3. In statutes exempting property devoted to
Argument list. Consists of causes for
literary purposes from taxation, " literary "
argument on issues Of law. See Aegtjment. has no fixed legal signification, but is to be
Call list. See Call.
taken in its ordinary meaning. "Literary
Civil list. (1) A statement of civil causes. iiistitutions " are those in which the positive
Criminal list. A list of criminal cases.
sciences ai-e taught, or persons eminent for
(2) Tiie civil ofScers of a government ; also, learning associate for purposes connected
appropriations to support such officers; in with their professions. It is not then, prop-
England, the expenses of the sovei-eign's erly used, descriptive of a school for the in-
household.* struction of youth.'
Jury listi A calendar of the jurors Literary associations. See Associa-
summoned, or in attendance upon a court. tion.
Trial list. A calendar of causes ready LITHOGRAPH. See Copyeight ; Nos-
for trial by jury. CITUE.
See also Lloyd's List; Sdbsoeiptioh. LITIGATE.* To carry on or defend a
3. A schedule of the polls and ratable es- suit, at law or in equity.
tate of the inhabitants upon which taxes are
Litigant. A pEirty to a lawsuit, — usually
to be assessed. 6 an active party.
The same as "grand list." A list that represents
real estate may answer the requirement of a statute.^ Litigation. A contest in a court of jus-
Listed. Said of the persons or property tice ;a judicial proceeding. See Inteeest, 1,
so noted or enumerated. Eei publicsB, etc. ; Lis, Pendens.
Lister. The person whose business is to Litigious. 1. Subject to judicial recog-
nition. 3. Too ready to go to law ; over-fond
pi'epare such formal statements. of lawsuits.
Compare Enlistment; Inventout; Register.
LITEBA. L. Letter ; written character. Once, a thing which created litigation,
LITIS. See Lis.
IdtercB. Letters, writings, documents.
LITTER. See Paetus.
Qui hseret in litera, hseret in cortiee.
He who clings to the letter, sticks in the LITTORAL.5 Belonging to the shore;
bark. He who regards the mere words of
riparian.'
' 2 Bl. Com. 379; 118 U. S. 638; 3 How. 255; 69 Iowa,
■ Murray v. Ballou, 1 Johns. Ch. 676-80 (1815), cases, 133; SGa. 252; 22 Pick. 657; 38 N. Y.433; 74 id. 389; 72
Kent, Ch. See generally i Cent. Law J. 27-29 (1877), Pa. 241, 483; 74 id. 201; Sedgw. Const. Laws, 253.
cases; 26 id. 411-17 (18S8), cases; 14 Am. Deo. 774; 1 M3 Bl. Com. 405 ; Woolsey «. Judd, 4 Duer, 379 (1855) ;
Story, Eq. §§ 405-7; 3 Pars. Contr. 282. 2 Kent, 306-15; Keene v. Wheatley, 9 Am. Law Beg. 44
' See 3 Bl. Com. 298; Story, Eq. PI. § 877. (1860); 17 Cent. Law J. 268-71' (1883), cases.
s 37 N. J. E. 397. * Council of Indianapolis v. McLean, 8 Ind. 333 (1856);
4 See Homer v. Cilley, 14 N. H. 100 (1843); WUliamsti. Kendrick v. Farquhar, 8 Ohio, 107 (1837).
Hempstead County, 39 Ark. 179 (1883). * L. lis, dispute; agere, to carry on.
' See 1 Bl. Com, 333. ^ L. Utus. the sea-shore.
« Wilson V. Wheeler, 55 Vt. 453 (1882), Eoyce, J. « 17 How. 436; 7 Cush. 94; 3 Kent, 437.
 635 LOADED
LIVE

disclose the character of the horse to the driver at the

LIVE. 1, V. In a devise of " the farm on
time of letting him.'
•which F. now lives," held equivalent to sub- A person who hires a public hack and gives the
eist, obtain a livelihood, rather than to dwell driver directions as to the place to which he wishes to
or reside. 1 be conveyed, but exercises no other control over him.
A child en venire will take under a devise to the is not responsible for his negligence, nor prevented
testator's children " living " at his death,* from recovering from a railroad company for injuries
Occasional acts of intercourse will not constitute suffered from a collision of its train with the hack,
"living together." SeeAnDLTBRT; Cohabit; Douioil; caused by the negligence of both the managers of the
.Beside. train and the driver.^
See Bailment; Condition; Nuisance. ,
2, adj. Within a duty law, " live animals "
was held to include singing birds.' LIVELIHOOD. See Business; Employ-
But " live stock " was held not to include fowls.* See ment; Teade; Slander.
£tock. 1; Team. LIVXNa. See Life ; Live, 1.
LIVERY .5 Delivery; tradition. LLOYD'S. An association in London
The act or the form by which possession of
whose members underwrite each other's ma-
land was formerly given or received. rine policies.
Livery in chivalry. When the heir- Named from Lloyd's coffee-house, the resort of sea-
male at twenty-one, or an heir-female at six- faring men and those who did business with them, in
the times of William the Third and Anne — 1690-1700.
teen, sued out a delivery of his or her lands
from the guardian. 6 Lloyd's lists. Accounts of the arrivals,
departui-es, casualties, and losses to ships.
livery of seisin. Pure feudal investi-
ture, or delivery of corporal possession of Lloyd's bonds. Sealed acknowledgments
land or of a tenement.' of debt by a borrowing company, with cove-
Was absolutely necessarf to complete a donation ; nants for payment.'
the last act by which a feoffment was perfected. It LOAD. Compare Laden.
preserved the testimony of the grant in the community. Of a wagon, does not include the weight of any part
It was necessary to the grant of an estate of freehold of the vehicle, nor the weight of the driver.' See Car.
in a corporeal hereditament; impossible in the case of XiOading off shore prohibited. These words,
an incorporeal hereditament; and not essential to a in a policy of marine insurance, are capable of being
lease for years or other chattel interest. Hence, a, construed by the court without the aid of extrinsic
freehold could not be made to commence in futuro, evidence. In the absence of such evidence, they may
the actual manual tradition of the land being want- be held to prohibit loading while the vessel lies at
ing. Livery in deed. Livery actually made on the anchor away from the shore, and not to forbid loading
land, before witnesses. Livery in law. Livery made at a bridge pier."
In sight of the land. Both were succeeded by delivery LOADED. Charged, and ignitible.
inwriting.' Plugging the touch-hole may destroy a weapon's
Land granted by livery of seisin, without defining use as a "loaded" fire-arm. So, too, may the re-
the quantity of the estate, was treated as a life-estate." moval of the flint or the priming from a blunderbuss.*
Where there was a delivery of possession, without de- A box containing powder and detonators, aiTanged
fining the term, there arose only a tenancy at will.'
•See further Delivery, 1.
' Huntoon v. Trumbull, 12 F. E. 844 (1880).
LIVERY-STABLE. A place where
2 Little v. Hackett, 116 U. S. 366, 371 (1886), cases,
horses are groomed, fed, and hired, and Field, .1. ; criticising Thorogood v. Bryan, 8 C. B. 115
where vehicles are let.' (1847). The last case was expressly overruled in The
Bernina, 12 P. D. 58-99 (1887), cases. See casfes col-
Live'ry-statale keeper. One whose busi- lected, Noyes V. Towniof Boscawen, Sup. Ct. N. H., 27
ness is to Jieep horses for hire, or to let, keep,
Am. Law Reg. 118 (1888); ib. 129-32; 35 Alb. Law J.
feed, or board, horses for others. i" 326, 330 (1887), cases; St. Clair Street By. Co. v. Eadie,
A livery-man is bound to keep safe horses, or fully
43 Ohio St. 95-96 (1885), cases; 24 Am. Law Keg. 710-16
(1885), cases.
» Kendall v. Miller, 47 How. Pr. 449 (1874). " See 2 Steph. Com. 139, 108, n. ; Am. Mar. Ins., 4 ed.,
'Picot v. Armistead, 2Ired. Eq. 230 (1843). 13B; 1 Lindley, Partn. 284; L. R., 2 Ex. 226; 4 Oh. Ap.
s Eeiche v. Smythe, 7 Blatch. 235 (1870). 748; 11 M. iSrW. 116; 5 C. & P. 482; 2 Bing. 241; 33 Law
' The Matilda Lewis, 5 Blatch. 583 (1867). Times, 638, 551; 46 Fortn. Rev. 528.
^ F. livrie, a thing delivered, a delivery. ■• Howe V. Castleton, 85 Vt. 167 (1853).
» [2 Bl. Com. 68. • Johnson v. Northwestern Nat. Ins. Co., 39 Wis. 87,
90 (1875).
' [2 Bl. Com. 313-16; 2 Utah, 45.
8 Efanger v. Lewis, 32 Pa. 370 (1859). » Rex V. Harris, 24 E. C. L. 854 (1831); Reg. v. Lewis,
1 Williams v. Garignes, 30 La. An. 1005 (1878). 38 id. 207 (1840); Rex v. Carr, 1 Russ. & Ry. 377 (1819);
'« Eevenue Act, 13 July, 1866, § 9: 14 St. L. 116. Reg. V. Gamble, 10 Cox, C. C. 545 (1867).
 LOAN 636 LOCATE

to ignite on opening, is not a loaded weapon.' See ing before a legislative body, by persons who
further Weapon.
influence individual legislators in private.
LOAN.^ 1. Referring to a chattel, a bail- Lobbying is a felony, by the constitutions of Cali-
ment without reward ; also, the thing itself fornia and Georgia. By the constitutions of several
so bailed. States, any person may be compelled to testify in any
investigation or proceeding to establish lobbying, but
Iioan for consumption. Contemplates
his testimony cannot be used against him, except to
a return of the article in kind: strictly, a
prove perjury.'
barter or an exchange.' Compare MUTUtJM. A contract to take charge of a claim before Con-
See Legacy. gress and prosecute it- as agent and attorney for the
Loan for use. A bailment of goods to claimant, is void as against public policy. Such con-
tract isdistinct from one for purely professional serv-
be used by the bailee temporarily, or for a
ices as an attorney, within which are Included: draft-
certain time, without reward.* See Bail- ing a petition which sets forth the claim, attending to
ment; Hieing. the taking of testimony, collecting facts, preparing
2. (1) Referring to money, never implies a arguments, and submitting them to a committee or
other authority, with other services of like character
return of the identical coin or notes; yet the
idea of a reward for the use is not excluded. intended to reach only the understanding of the per-
sons sought to be influenced.^
The delivery by one party, the lender, to, LOCAL. See Locus.
and the receipt by, another party, the tor- Relating to a place : belonging to a partic-
rower, of a given sum of money, upon an ular district; confined to a limited region.
agreement, express or implied, to repay the Opposed to general, personal, transitory,
sum with or without interest.'
(2) The advance upon a note discounted, As, local or a local — act, action, allegiance,
without reference to its character as business commerce, court, custom, government, law,
qq. V.
or accommodation paper. * legislation, option, statute, venue, qq. v.
See Discount; Interest, 2 (3); TTsdbt. The local character of an improvement may depend
Loan association, or society. See upon the special benefit which will result to the prop-
Building, Association. erty adjoining or near the locality in which the im-
liOan certificate. During times of financial panic, provement ismade.'
in New Tox-k City, and perhaps elsewhere, what are
LOCALITY. See Place, 1.
known as " loan certificates " are issued by the clear- LOCATE. See Locus ; Permanent.
ing-house to the associated banks, to the amount of 1. To ascertain the place where a thing be-
seventy-five per centum of the value of the collaterals .
deposited by the borrowing banics with the loan com- longs :as, to locate a call in a survey.
mittee of the clearing-house. Locative. Referring to a physical object
LOBBY.7 1. The part of a hall of legis- by which the boundary of land may be iden-
lation not appropriated to official use. tified.* See Call, 3 (8).
2. The persons who occupy such space on 2. Said of a building : to erect, put up ; not»
business concerning proposed legislation. necessarily, to complete.'
Lobbying. Seeking to influence the vote 3. To select the line upon which a road or
of a member of the legislature by bribery, way is to be constructed. Whence relocate.
promise of reward, intimidation, or other The ordinary meaning of the words " to locate " a
dishonest means.' way is " to ascertain and determine the place of " the
way, and in this sense they might well be used in'con-
Lobby services. Services rendered in pro- nection with the technical words " to lay out." •
curing the passage or defeat of a bill pend- In statutes relating to ways, " location " sometimes

1 Eex V. Mountf ord, 32 E. C. L. 693 (1835). ' 1 Stimson, Am. Stat. Law, § 153.
' A. S. Icen, a lending. 'Trist V. Child, 21 Wall. 441, 449-50 (1874),
= Story, Bailm. § 439; 3 Mas. 478; 8 N. T. 433; 4 Ohio Swayne, J. ; Osoanyan v. Winchester Arms Co., IDS
St. SB. U. S. 275 (1880).
• Story, Bailm. §§ 6, 219; 2 Kent, 573; 20 Barb. 348; 16 ' State V. District Court of Ramsey County, 33 Minn.
Ga. 25; 7 Pet. 109. 307(1885); 32 id. 507.
» [Payne v. Gardiner, S9 N. T. 167 (1864), MuUin, J. « See Johnson v. Pannel, 2 Wheat. 211 (1817); McDow-
See also 17 N. J. L. 206; 13 Barb. 75. ell V. Peyton, 10 id. 463 (1835); 8 Bibb, 414.
« Nat. Bank of Gloversville v. Johnson, 104 U. S. 277 'Waldron v. Marcier, 83 111. 560 (1876); Moule o.
<1881), Matthews, J. Plank Road Co., 6 How. Pr. 39, 40 (1851).
^ L. L, lobia. portico, gallery: G. loube, arbor, bower. " Foster v. Park Commissioners, 133 Mass. 3.33 (1883),
8 Const. California, Art. IV, sec. 35.

Field, J. ■
 637
LOCATIO LODGER

means the land included within the limits of the way

Locus delicti. The ' place of wrong :
as laid out, and sometimes is synonymous with " lay- where an offense was committed. See De-
ing out" — establishing a new highway, * See Aban- lictum.
don, 1; Extend; Eaileoad; Take, S.
Locator. (1) He who places, that is, Locus in quo. The place in which:
where an alleged thing was done, as, a tres-
bails, a thing with another for a compensa-
tion. See LOCATIO. pass committed; or, where land in dispute
lies — the place in question.
(2) One who locates, or is entitled to locate,
land. See 4, infra. " The loctis in quo was not a legally established
street."' See Alibi; View,
The claim of a "locator," in Kentucky, is for a por-
tion of the land in compensation for his services.^ Locus poenitentisB. Place for repent-
4, To appropriate land as a mining claim. ance : an interval or opportunity in which to
See Mining, Claim. reconsider and withdraw, as, from a proposed
contract, or from unlawful action.
LOCATIO. L. A placing: letting out
for hire. See Locus. Thus, the law affords a person an opportimity to
withdraw from any illegal contract before it has been
Writers who follow the civil law have divided con-
executed; ' to recall a bid made at a sale of realty
tracts of hiring into: 1. Locatio rei, the hiring of a before his name has been written down; to decide not
thing, personalty or realty, 2, Locatio operisfaciendi, to complete a gift; for a return to a deserted wife or
hiring for work to be done or care to be bestowed. To
husband within a prescribed period; to go on and per-
which class belong: the undertakings of a mechanic, form a contract, after a declaration made not to be
artisan, tailor, of a warehouseman, wharfinger, quasi- bound by it; 3 to abandon any criminal intention. See
agister, postmaster. H. Locatio operis mercium ve- Delictum, In pari, etc.
hendarujn, a hiring of the labor of carrying goods.
To this class belong: a private carrier, with or without Locus regit actum. The place governs
pay; a common carrier of goods — express, freight, the act : the law of the locality regulates the
transfer, packet companies ; quasi -carriers — telegraph thing to be done,' See Lex, Loci.
companies, innkeepers. This class also embraces com- Locus rei sitae. The place of the situa-
mon carriers of passengers. ^ See Bailment. tion of a thing. See Lex, Loci.
LOCK. See Navigation,
Locus sigilli. Place of the seal, q. v.
LOCK-OUT. See Strike, 2.
Locus standi. Place for standing : right
LOCK-UP. A lock-up house : a place for
to be heard, 5
the temporary confinement of law-breakers. LODE. See Vein.
See .Prison,
LODGE. 1, V. (1) To make, prefer: as ,to
LOCO. See Locus.
lodge a complaint or information.
LOCOMOTIVE. See Bicycle; Rail-
(3) To deposit with; to file with, as, for
road.
transcribing.
LOCUM. See Locus'. A deed sent to a coimty clerk for record, unaccom-
LOCUS. L. Place: locality, territory, panied with the fee, and, therefore, pigeon-holed by
jurisdiction; stead, situation; space, room, him, is not ** lodged " with him so as to be notice to a
period ; opportunity. Compare Situs. subsequent creditor of the vendor." See File,
3, Ji, A fraternity or brotherhood. See
Loco parentis. In the situation of a par-
ent. Association; Clubs.
Predicated of a person who assumes the parental LODGER. One who occupies hired
character, or discharges the parental duties. See fur- apartments in another's house ; a tenant of
ther Parens.
part of another's house,' See Distress.
Locum tenens. Holding the place: a In the present state of the decisions, it is not possi-
representative. See Active. ble to frame a definition which will accurately distin-
Locus contractus. The place of con- guish between a boarder, a guest, and a lodger,' See
Boarder; Gdest; Innkeeper; Residence,
tract ;where a contract is made or is to be
1 4 Wall. 194; 2 id. 42; 109 U, S. 562.
performed. See further Lex, Loci. ' a Wall. 154; 4 id. 518; 18 id. 355; 117 U, S, 503; 72 Pa,
Locus criminia. The place of crime: 213.
> 8 Biss. 16,
where a crime was perpetrated.
4 18 Blatch. 154; 91 U. S. 406,
' Foster v. Park Commissioners, 133 Mass
iS3 U,lerson
S. 277.v. Bowers, 48 N. J. E. 296 (1886).
<1883); 117 id. 416; 6Bradw. 119.
' HoUingsworth v. Barbour, 4 Pet. 473 (1 !ict.
fman v. State, 1 Tex. Ap. 223 (1876); Burrill's Law
136.'3 Kent, 585; Jones, Bailm. 35; 8 Pars, CoritjrfFRil,' » See 16 Ala. 666; 9 Pick. 280; 36 Barb, 460; 1 Tex, Ap,
 LOG LORD

LOG. See Mile. LORD. 1. A feudal superior; one of

Log-book. Vessels making foreign voyages, or whom an estate was held.
of the burden of seventy-five tons or more, from an He was a lord paramount or a lord paravail.
Atlantic to a Pacific port, or vice versa, must liave an
lAege lord was contradistinguished from " liege man."
ofQcial log-book.^ Landlord was originally used in this sense. See Feud.
Tlie entries slaall be of matters occurring during tbe
3. In England, a title of nobility, belong-
voyage, sucli as offenses by tlie crew, punishments in-
flicted, any cage of illness, injury, death, birth, mar-
ing, strictly, to the degree of a baron, but
riage, discharges of seamen. For neglect of this duty applied to the' whole peerage.^
the master is punishable by fine." Lords spiritual. A constituent part of
LOGIC. See Evidence ; Pleading ; Pee- parliament, being two archbishops and
SUMPTION; EEASON.
twenty-four bishops.^
LOG-ROLLING. Embracing in one Lords temporal. All the peers of the
bill distinct matters, none of which, perhaps, realm, by whatever title distinguished, and
could singly obtain the assent of the legisla- forming another constituent part of parlia-
ture, and procuring its passage by a combi-
nation of the minorities in favor of the House of lorqis. The branch of parliament
ment.^
separate measures. ^ See Title, Of act. consisting of the lords spiritual and the lords
LOGS. The stems or trunks of trees cut temporal. See Parliament.
into convenient lengths for the purpose of 3. A title bestowed upon persons occupy-
being afterward manufactured into lumber ing certain high ofiSces.
of various kinds. Lord advocate. The principal proseout-_
So held in a statute creating a lien in favor of per- ing ofBcer employed on behalf of the crown.
sons who furnish supplies to men pngaged in taking
See Advocate.
logs out of the forest.* Lord chancellor. The presiding judge
A person using a public stream by floating logs is
not responsible at common law to a riparian proprie- in the court of chancery. See Chancel-
tor for damages occasioned by the stranding of logs LOE, 1.
upon his land, if the driver has used reasonable effort Lord commissioner. A person charged
to retain the logs within the stream."
with the execution of any high public office
LONDON". See Custom; Feme Sole; put into commission.
Fleet; Gazette; Rack.
In lieu of the lord treasurer and the lord high ad-
LONG. See Account, 2 ; Lease. miral of former times, there are now the lords com-
LONGEVITY. See Table, 4. mis ioners ofthe treasury, and the lords commissioners
LOOKOUT. A person, upon board a of the admiralty; there are also lords commission-'
vessel, stationed in a favorable position to ers of tbe great seal, etc.
see and near enough to the helmsman to Lord justices. 1. Persons appointed to
administer government temporarily during
communicate with him, and exclusively em-
an emergency. 2. Two judges appointed,
ployed in watching the movements of other
under an act of 1851, to assist the lord
vessels.*
LOOM. See Heirloom; Flxtuee. chancellor in hearing appeals.'
Lord lieutenant. 1. The principal offi-
LOOSE. See Animal; At Large; Es-
TEAY. cer of a county. 2. The representative of the
crown in Ireland.*
Lord mayor. The chief officer of the
230; 13 Mod. 265; L. E., 6 C. P. 327; 8 Q. B. D. 195; 9 id.
345; 13 id. 79; 61 L. T. E. 134; 30 Moak, 19; Wood,
corporation of London.
Landl. & T. 177. Lord mayor's court. The highest court of
» R. S. § 4290. record, of law and equity, within the city of
' "E. S. §§ 4391-93. See 1 Whart. Ev. § 648, cases; 1
Greenl. Ev. § 49S, cases. London.
Lord 5 treasurer. An officer who had
a [Walker v. GrifBth, 60 Ala. 369 (1877), Manning, J.;
86 Kan. 340. charge of the royal revenues.
'KoUock'u Parcher, 53 Wis. 398 (1881), Taylor, J.
See 40 Me. 145. ' [1 Bl. Com. 396.
' Carter v. Thurston, 58 N. H. 104, 107 (1877), cases; . , = [1 Bl. Com. 156-57.
• Genesee Chief v. Fitzhugh, 12 How. 462 (1861), Taney, = 2 Steph. Com. 477; 3 id. 331.
C. J. See also Eeed v. Steamboat New-Haven, 18 < 1 Bl. Com. 413; 4 id. 373
How. Pr. 485 (1869). 'See3Bl. Com. 81.
 LOST
LORD, YEAR OF 639

Hife functions are now vested in the lords commis- " Freight " may be lost in the sense that by reason
sioners of the treasury.' of the perils insured against the ship has been pre-
LORD, YEAB OP. See Yeae. vented from earning freight; and, also, in the sense
that it is lost to the owner, after it has been earned,
Lord's day. See Sunday. by some circumstance unconnected with the contract
LOSS. 1. Privation; injury; damage. between the assured and the underwriters on the
See Damage ; Damages.
A community of profits implies a community of freight.'
See Avkkage; Indemnity; Insurance; Ooctjb.
losses: losses are, in a sense, nothing more than a Proof of loss. A written and sworn state-
diminution of profits.^
ment, made to an insurance company by the
2. Dam^e to or the entire destruction of
beneficiary, of the fact of a loss.
an insured subject by a contemplated peril.
In fire insurance, analogous to the "protest" in
Actual loss. Where there is a real de- marine insurance. The time when the loss occurred,
struction of the subject. Constructive the cause of it, the value of the property, the name of
loss, or constructive total loss. When the owner, incumbrances, and like facts, are usually
required to be furnished.
the injury is so great that the insured may
abandon the remnant to the insurer. Waiver of "preliminary proof of loss" by an in-
surer may be proved indirectly by circumstances, as
Partial loss. When the subject is dam- well as by direct proof; and so also may authority in
aged but not destroyed. Total loss. When an agent to make the waiver be proved.^
Preliminary proof of a death is not required, when
the subject is wholly destroyed.
Total loss. The total destruction of the the insurer, on being notified thereof, denies his lia-
bility and declares that the insiu-ance will not be paid.^
thing insured; also, such damage to the LOST. 1. The finder of lost property has
thing, though it may remain in specie, as a valid claim against all persons but the true
renders it of little or no value to the owner. ' owner. See further Find, 1.
Actual total loss. When the subject in- 2. The contents of any written instrument
sured wholly perishes, or its recovery is ren- lost, or destroyed, may be proved by compe-
dered irretrievably hopeless.*- tent evidence. Judicial records and all other
It is not necessary to a total loss that there be an kinds of documents of a kindred nature are
absolute extinction or destruction of the thing insured,
so that nothing can be delivered. A destruction in within the rule.*
specie, so that while some of its component elements If a note has been destroyed by fire, it may be said
or parts may remain, the thing which was insm-ed, in to be
the character or description by which it was insured, If a"lost."
bill of *exchange or a promissory note, indorsed
in blank and payable to bearer, be lost or stolen, and
is destroyed, is a total loss.^
As applicable to a building, means, not that its be purchased in good faith without Imowledge of want
materials were utterly destroyed, but that the build- of ownership in the vendor, the holder's title is good.*
The rule is otherwise as to a bill of lading, q. v.
ing, though part of it remains standing, has lost its
A lost will may be established by evidence, as in
identity and specific character as a building, and, in-
stead, has become a brolcen mass, or cannot longer the case of a lo.<it deed, all persons interested being
properly be designated as a building. Absolute ex- first made parties. The declarations of the testator
may be shown, as well to establish its contents as to
tinction isnot meant. "Wholly destroyed" may be
show the improbability of its destrtiction by him. The
an equivalent expression.*
As long as a vessel exists in specie in the hands of burden is on the party alleging that a will existed, to
the owner, although she may require repairs greater prove its execution and contents by strong, positive,
tlian her value, a case of *' utter loss," within the and convincing evidence.^
meaning of a bottomry and respondentia bond, does not Although a will is required to be attested by two
arise and she continues subject to the hypothecation.^ witnesses, a lost will may be established by the testi-

I See 3 Bl. Com. 38, 45, 56. ' Scottish Mar. Ins. Co. v. Turner, 20 E. L. & E. 42
' Priest V. Chouteau, 13 Mo. Ap. 856 (1882). (1853), Ld. Thuro.
' [Livermore v. Newburyport Mar. Ins. Co., 1 Mass. ' Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S.
*279 (1804), Sedgwick, J. 546 (1876); 86 Md. 102.
• Burt V. Brewers', &c. Ins. Co., 9 Hun, 384 (1876); ' Knickerbocker Life Ins. Co. v. Pendleton, 112 U. S.
Biurill's Law Diet. 709 (1885), cases.
' Great Western Ins. Co. u Fogarty, 19 Wall. 640, 643 * Burton v. Driggo, 20 Wall. 134 (1873), cases; 18 How.
(1873), cases. Miller, J. 246; 11 Wall. 672.
• [Oshkosh Packing, &o. Co. v. Mercantile Ins. Co., » McGregory v. McGregory, 107 Mass. 643 (1871).
31 F. E. 204 (1887), Dyer, J. ; May, Ins. § 421 o, cases; 1 • Shaw V. North Pennsylvania R. Co., 101 U. S. 564
Wood, Ins. § 107, cases. (1879), Strong, J. See Adams v. Edmimds, 65 Vt. 352
' Delaware Mut. Safety Ins. Co. v. Gossler, 96 U. S.
645, 653 (1877), cases, aifford, J. ' Southworth v. Adams, 11 Bias.
 LOT 640 LOTTERY

mony of a single witness ; and probate may be granted A scheme for the distribution of prizes by
to the extent to which the provisions are proved.^
When an abstract or summary of a lost or destroyed chance. 1
record, deed, deposition, will, or other instrument is A distribution of prizes — something valu-
offered as the best evidence obtainable, the witness able— by chance or lot, a valuable considera-
must be sufficiently acquainted with the original, and tion being given for the chance to draw the
the court be satisfied that the original is non-produ-
cible, and evidence if produced. The loss may be in- The decision of a question by lot Is not a lottery.
ferentially proved, or admitted. A probable custodian The term2 in criminal law refers to something in which
must be inquired of, and search in the proper place prize.
there are supposed prizes and blanks. The disposal
be proved — the decree of search being proportioned of any species of property by an,y of the* schemes or
to the importance of the document.^ games of chance popularly regarded as innocent
The maliier of paper which has become lost is lia- comes within the terms of the law. *
ble to the owner, after notice of the loss, if he redeems
the paper without requiring the holder to establish his Decided to be lotteries have been: a "gift-exhi-
bition;"^ a "f^ift-sale" of books;* "prize-candy"
title. The holder should be required to furnish in-
business;^ "prize-concerts;"" "prize-tickets" to In-
demnity against other claimants.' See Deposit, Cer-
tificate of; Evidence, Secondary; Profert. duce^ subscriptions to a newspaper; ' raffles at fairs; ^
drawing works of art; » " playing policy." "
LOT. 1. Any appeal or resort to chance Lottery-ticket dealer. Any person, association,
firm, or corporation, who makes, sells, or offers to sell,
for determining a result or for deciding' a lottery tickets, or fractional parts thereof, or any
question. See Game, 3 ; Lottery.
A verdict arrived at by drawing lots will be set token, certificate, or device, representing, or intending
to represent, a lottery ticket, or any fractional part
aside.*
thereof, or any policy of numbers in any lottery, or
2. Allotment; share; parcel.
who manages any lottery, or prepares schemes of lot-
Used of land, does not imply anything- as to the size
teries, or superintends the drawing of any lottery."
of the parcel.^
In a homestead law, held not synonymous with State lottery. A lottery licensed and
"tract " or " pai'cel,'* but to mean a city, town or vil- regulated by legislative enactment — for the
lage lot, according to the official survey.^ service of the state, or of individuals. Pri-
Under a devise of the "house and lot in which I vate lottery. A lottery instituted or man-
now reside," the devisee will take the lot which the
testator, prior to the date of his will, had separated aged for the benefit of one or more private
from other lands. " Lot " generally describes a small
persons, an association or a society.
parcel of land.^ Lottery schemes, which were formerly very com-
In-lots lie within the boundary of a town or city ; out- mon,"" are now generally proscribed. Statute of lOand
lots lie outside such boundary.
Church, C. J. ; People v. Noeike, 94 id. 141 (1883): Penal
See Dedication, 1; Field, 1; Map; Street. '
LOTO. See Game, 3. Code, § 333; State v. Willis, 78 Me. 73 (1886), Peters, C. J.
1 Commonwealth v. Manderfield, 8 Phila. 459 (1870);
LOTTERY.8 Has no technical meaning. State V. Lovell, 39 N. J. L. 461 (1877); Eandle v. State,
A result of the accepted definitions is: where 43 Tex. 585 (1875).
a pecuniary consideration is paid, and it is 2 United States v. Olney, 1 Deady, 464 (1868), Deady,
determined by lot or chance, according to J.; 1 Abb. U. S. 375. See also 30 F. E. 601; 40 111. 467;
59 id. 160; 94 Ind. 436; 73 Mo. 650; 16 Nev. 143; 89 N. C.
some scheme held out to the public, what 573; 3 Greg. 391; 41 Tex. 297.
and how much lie who pays the money is to s Wooden v. Shortwell, 33 N. J. L. 470 (1853); State v.
have for it.' Shorts, 33 id. 198 (1868); Thomas v. People, 69 111. 160
(1871); Chavannah v. State, 49 Ala. 396 (1873); Buckalew
1 Skeggs V. Horton, 83 Ala. 351, 356 (1886), cases; Sug- V. State, 63 id. 334 (1878); Eothrock v. Perkinson, 61
den V. Lord St. Leonards, 1 L, E., P. D. 164, 317 (1876). Ind, 39 (1878); Kohn v. Koehler, 31 Hun, 466 (1880).
= 1 Whart. Ev. §§ 139-51, cases; 1 Greenl. Ev. § 558, * State V. Clarke, 83 N. H. 329, 334 (1856).
cases. As to lost wills, see also 31 Alb. Law J. 305-67, 'Hull V. Euggles, 56 N. Y. 434 (1874); Holoman v.
385-89 (1885), cases; 83 Cent. Law J. 29 (1886), cases. State, 3 Tex. Ap. 610 (1877).
3 Bainbridge v. Louisville, 83 Ky. 889-93 (1885), cases; "Commonwealth ii. Thacker, 97 Mass. 583 (1867);
Cobb V. Tirrell, 141 Mass. 46 (1886). Negley v. Devlin, 12 Abb. Pr. 210 (1872); State v. Over-
'Goodman v. Cody.l Wash. T. 339 (1871); b. o. 34 ton, 16 Nev. 136 (1881).
Am. R. 808, note. ' State V. Mumford, 78 Mo. 647, 650 (1881).
« Edwards v. Derrickson, 88 N. J. L. U (1859). 8 Commonwealth v. Manderfield, 8 Phila. 459 (1870).
8 Wilson V. Proctor, 88 Minn. 17 (1881). " Governors of Almshouse v. American Art Union, 7
' Phillipsburgh v. Bruch, 37 N. J. E. 486 (1883). N. Y. 388, 810 (1853).
8 A. S. hlot, share, lot. i» Wilkinson v. Gill, 74 N. Y. 63 (1878).
' Hull V. Euggles, 56 N. T. 431,427 (1874), Folger, J., '1 Revenue Act, 13 July, 1866, § 9: 14 St. L. 116.
quoting PerIey„C. J., in State d. Clarke, 33 N. H. 335 ^^ Governors of Almshouse v. American Art Union, 7
(1856). Approved, Wilkinson v. Gill, 74 N. Y. 66 (1878), N. Y. 337 (1858); 2 McMaster, Hist. Peop. U. S. 23.
 LOUISIANA 641 LUGGAGE

11 Will, ni (1699), c. 17, prohibited them as public and enlarged to suit statutory changes, since 1825 the
nuisances; and statute of 6 and 7 V"ill. IV (1836), c. 66, Digest has been known as the " Civfi Code." Punish-
forbade advertising foreign lotteries.' Similar stat- ment for crimes is prescribed by reference to their
utes exist here ; where also, circulars concerning lot- names; for the definitions, the common law of Eng-
teries are not mailable matter.^ land is resorted to. The code presents the leading
The effect of Rev. St. § 3894, prohibiting the mailing principles of evidence; for application, recourse is
of lottery circulars, etc., is to make any matter con- had to treaties. The lex mercatoria^ as an independ-
cerning lotteries unmailable, and to subject the sender ent system of law, is recognized. The English law as
to the penalty therein provided. When a city, to in- to realty has never been' received. In other respects,
duce people to buy its bonds, holds out prizes to be the law of the State may be said to be like the laws of
drawn by chance, the mailing of circulars concerning the other States.' See LiQDinATioN, Board of.
such drawings is a mailing of lottery circulars within LOVE. See Consideration, 2.
that section." LOW-WATER. See Water.
A mere license to draw a lottery, not inseparable LOYALTY. See Allegiance ; Treason.
from the essential functions of a corporation, not
acted on, and under which no rights have been vested, LUCID INTERVAL. A period of men-
may be repealed by a succeeding legislature. * tal clearness enjoyed by an insane person,
Lotteries are a malum prohibitum. They are a during, which he is capable of performing an
species of gambling, and wrong in their influences. act which will be binding in law.
They distm'b the checlrs and balances of a well-ordered Not a restoration to reason, but a restoration so far
community. The right to suppress them is govern- as to be able, beyond doubt, to comprehend and do the
mental, exercisable in discretion. Any one who ac- act, with such reason, memory, and judgment as to
cepts alottery charter does so with the implied under-
standing that the people, through their proper agency, make it a legal act.*
An act done in a lucid interval by one who has been
may resume it whenever the public good requires it. f oimd to be a lunatic is binding on him, but the proof
All that one can get by such a chai'ter is a suspension of the lucid intei-val must be clear.*
of certain governmental rights in his favor, subject to The expression once meant respite, intermission,
withdrawal at will. He has a license to enjoy the
cessation, relaxation.' See Lunatic
privilege on the terms named for the specified time, LUCRATIVE. Refers to an office to
unless it be abrogated by the sovereign power. It is a
permit, good as against existing laws, but subject to which there is attached a compensation for
future legislation and constitutional control or with- services rendered.^
drawal.' See Decoy; Police, 2. LUCRUM. I/. Gain, profit, advantage,
A grant in the constitution of a State of the privi- benefit.
lege of establishing a lottery, to a corporation, is not
Lucri causa. For the sake of gain.
subject to repeal by the legislature.'
No other form of gambling operates so extensively A civfi-law expression, corresponding to animus
furandi in the common law. Descnbes the intention
in its dealings, or demoralizes so many peqple It is
this extensive reach, and not merely its speculative with which personalty is taken in theft — the felonious
purposes, that makes lottery-gambling so dangerous.' intention to profit by the act of conversion. But re-
spectable modem authorities hold that it is sufficient
LOUISLANA. The territory of Louisi- if the taking be fraudulent, with an intent to deprive
ana was ceded by Spain to France, October 1, the owner of his property; as, a taking for the pur-
1800, and by France to the United States,
pose of destroying.'
LUGGAGE. May consist of any articles
April 30, 1803.8
The State is governed by the civil law; the first intended for the use of a passenger while
body of which, called the "Digest," and adopted in
1808, was in substance the same as the Code Napoleon, traveling or for his personal equipment.'
with modifications from the Spanish law. Revised "Baggage" and "luggage" mean the same thing.
The latter term prevails in England. See further
'4B1. Com. 168; 1 C. B. 974. Baooaoe.
"Act 12 July, 1876: E. S. § 3894; ib. §§ 3851, 3929, 4041;
9 Hiss. 429; 14 Blatch. 245; 1 F. R. 417, 426. • ' See 2 Bouvier's Law Diet. 130.
s United States v. Zeisler, 30 F. E. 499 (1887). ' Frazer v. Frazer, 2 Del. Oh. 263 (1861), Harrington,
' Louisiana State Lottery Co. v. Fitzpatrick, 3 Woods, Ch. See 3 Brown, Ch. 234, 443; 8 C. & P. 415; 1 Eedf. ^
822, 248 (1879). Wills, 63, 108-18, cases.
s Stone V. Mississippi, 101 U. S. 821 (1879), Waite, C. J. ; ' Re Gangwere's Estate, 14 Pa. 417, 428 (1850).
Phalen v. Virginia, 8 How. 168 (1850); State v. Wood- * See Trench, Glossary, 114-16.
ward, 89 Ind. 114 (1883); People v. Noelke, 94 N. Y. ' State V. Kirk, 44 Ind. 405 (1873), Downey, C. J. ; 35 id.
.14M3 (1883); Kohn v. Koehler, 21 Hun, 470-71 (1880); Ill ; 8 Blackf . 389.
Justice V. Commonwealth, 81 Va. 214 (1885). «4B1. Com. 832; United States v. Durkee, 1 McAll.
• New Orleans v. Houston, 119 U. S. 265 (1886). 201-5 (1856), cases; Hamilton v. State, 35 Miss. 219
' People V. Eeily, 50 Mich. 368 (1883). (1858); Keely v. State, 14 Ind. 36 (1859); WUliams v.
8 See at length Slidell v. Grandjean, 111 U. S. 423-^0 State, 58 Ala. 413 (1875); 8 Bish. Cr. L. § 842.
(1884). ' California Civil Code, sec. 8181; 70 Cal. 173.
(41)
 LUMBER LYNCH LAW
643

LUMBER. Timber sawed or split for LYING. See Lns.

use in building. Material essential for build- Lying at wharf. Floating in the space
ing any kind of a house ordinarily used for of water called the dock.'
business or by families.^ See Timber. Lying in grant. Refers to the means of
LUNACY. See Lunatic. transfer of an incorporeal hereditament, q. v.
LUWAK. See Month. Lying in wait. In ambush, to kill an-
LUNATIC.^ One who has had under- other person.
Implies waiting, watching, secrecy; evidences that
standing, but by disease, grief, or other acci-
dent, has lost the use of his reason. One deliberation which marks murder in the first degree.''
But is not synonymous with " concealed." ^
that has " lucid intervals," ^ q. v. LYNCH LAW. The action of private
A person who sometimes has understand- individuals, organized bodies of men, or dis-
ing and sometimes not.* orderly mobs, who, without legal authority,
In the Revised Statutes, and in any act or resolu-
tion of Congress passed since February 25, 1875, " in- punish by hanging, or otherwise, real or sus-
sane person " and " lunatic " includes every idiot, non pected criminals, without trial according to
compos, lunatic, and insane person.* the forms of law.
Lunacy. Insanity; in particular, ac- American lexicographers refer the origin of the
term to the practice, in the seventeenth century, of a
quired as opposed to congenital insanity. ^ Virginia farmer named Lynch. Others trace it to the
Commission of lunacy. Authority in
act of one Lynch, mayor and warden of Gal way, Ire-
writing, from a court, to inquire into the land, in 1493, who " hanged his own son out of the
mental condition of a person alleged to be of window for defrauding and killing strangers, without
unsound mind ; an Inquisition de lunatico in- martial or common law." Others, again, trace it to
the Anglo-Saxon, liiich, to beat with a club, to chas-
quirendoJ
A lunatic has nothing which the law recognizes as a
During the war of Independence, one Lynch was
mind; has no niental conclusions; cannot discern be- president judge of the county court of Pittsylvania,
tween right and wrong; can assent to nothing. He is tise.*
not capable, therefore, to make a will, a contract, or Virginia, The court in that State for the trial of fel-
onies sat at Williamsburg, two hundred miles distant.
to commit a crime; and is incapable, also, to avoid a
Horse thieves, who had established posts from far
contract.8
While a person of unsound mind remains a minor, north, through Virginia, into North Carolina, were fre-
quently arrested and remanded to Williamsburg for
an ordinary guardian is all the custodian of either his
trial. Not only was the attendance of witnesses, at
person or estate that is necessary; and an act done by
that distance, rendered uncertain, but when they did
such guardian in relation to his estate is as valid as if
done by a committee appointed to take charge of him appear they were sure to be confronted by false wit-
nesses for the outlaws. Moreover, the difficulty of con-
■ and his estate, as a pferson of unsound mind.^ veying the accused to Williamsburg was increased, and
By the common law, a lunatic must make compen- the sitting of the court made uncertain, by the presence
sation to persons injured by his acts, although, being
of the British under Cornwallis. Accordingly, the jus-
incapable of criminal intent, he cannot be indicted tices of the county court of Pittsylvania assembled,
i and punished." and Judge Lynch proposed that, since for Pittsylvania
See Committee, 1; Insanity; Stultify.
the court at Williamsburg had practically ceased to
LUST. See Lewd.
LUXURY. See Stjmptuaey. exist, and, in consequence,' heinous crimes went un-
punished, the court over which he presided should try
all felonies committed in the county: that is to say,
the place of trial was to be changed by mere resolu-
■1 Ward V. Kadel, 33 Arl?. 180 (1881), Eakin, J. tion. The plan was adopted, with good results: the
^L. luna, the moon: moon-struck. thieves were disbanded, many being hanged, which
"S[1B1. Com. 503. was the lawful penalty. This change of forum was
' Be Barker, 2 Johns. Ch. *333 (1816), Kent, Ch. against the words of the law, but justified. Lynch and
' R. S. § 1. others held, by the circumstances.^
« See 1 Redf. Wills, 63-63; 1 Bland, Ch. 386. Whatever excuse may exist for the execution of
'IBl. Com. 304; 3 id. 427. lynch law in savage or sparsely settled districts, in
8 Dexter V. Hall, IS Wall. 20-25(1872), cases. Strong, J. order to oppose the ruffian elements whicli the ordi-
sFrancklyn v. Sprague, 121 U. S. 815, 229 (1887); 2
Ves. Sr. 403.
i»Morain v. Devlin, 132 Mass. 88 (1882), Gray, C. J., ' Dewees v. Adger, 2 McCord, 105 (1822),
citing 2 East, 92, 104; 17 Vt. 499; 32 Md.681; 4 Baxt. 64; ^See Riley v. State, 9 Humph, 651 (1849); State v.
3 Wend. 393-94; 23 Iowa, 313; 78 Pa. 412; 9 Mass. 225; 9 Abbott, 8 W, Va, 769 (1875); 8 Va, 488; 1 Leigh, 598,
Gray, 85. As to jurisdiction over the estates of insane s People V. Miles. 55 Cal. 207 (1880),
persons, see 21 Am. Law Rev. 1-13 (1887). On. the lu- ' [Ency. Britannica.
nacy laws of England, see 1 Law Q. Rev. 150 (18S5). ' See 18 Harper's Magazine, 794-96 (1859).
 M 643 MAGISTRATE

nary administration of law is powerless to control, it and using it in such full, clear, and exact terms as will
certainly has no excuse in a community where the enable any one skilled in the art to which it pertains
laws are duly and regularly administered,' ■to make and use the machine ; and that he shall ex-
plain the principle thereof, and the best mode in
M. which he contemplated applying that principle, so as
to distinguish it from other inventions. Under these
provisions, it has been held that a patentee is not gen-
M, 1. A person convicted of manslaugh- erally limited to the literal import of his description
of his invention, but that, in construction, he may
ter, in England, was, in former times, make such modifications of it as do not involve a de-
branded with an " M " on the left thumb. parture from its principle or a material change in its
2. Treasury notes issued under the act of mode of operation.' See Equivalent, 2; Mode, Of
Congress of October 12, 1838, had an M printed operation; Patent, 2; Process, 2.
on the face to signify that they bore interest Machinery. Means somewhat more than
at the rate of one mill per centum.^ machine. Includes whatever is necessary
3. The initial letter of other words often to the working of a machine; as, dies used
abbreviated: as, Maiy (queen), master, in manufacturing tinware, the saw in a saw-
maxims, mileage, mortgage. mill, the pipes of a gas company.^
M. D. Middle district. See D, 2. When cars, though used at times, and at other times
detached, are formed into a train, to which propelling
M. L. Mechanic's lien. See Lien. force is imparted by means of a locomotive, the entire
M. R. Master of rolls. See Roll, 2 (2). .train constitutes machinery connected with or used in
M. T. Michaelmas term. See Teem, 4. the particular business.^
MACADAMIZE. See Pave. In determining whether machinery becomes a fixt-
ure, regard must be had to the object, and to tlife ef-
MACHINE.' In the law of patents, in-
fect and mode, of annexation.* See Fixture.
cludes every mechanical device, or combina- An employee who knows that machinery which he
tion of mechanical powers and devices, to is operating is so defective as to be dangerous, protests .
perform some function and produce a cer- against further use of it, receives no assurance that
tain effect or result.* the defect will be remedied, but continues to use it,
A concrete thing, consisting of parts or of voluntarily assumes the incidental risks.^ See Negli-
gence.
certain devices and combination of devices. MADE. See Make.
The principle of a machine is "its mode of MAGISTEB. L. Master, ruler.
operation," or that peculiar combination of Magister litis. He who controls a suit.^
devices which distinguishes it from other
Magister navis. He who governs a ves-
machines. A mere principle or idea cannot
constitute a machine.' Magister societatis. The manager of a
Patentable inventions pertaining to machines are:
1. Entire machines; as, a car for a railroad, a sew- partnership ; a managing partner or agent.*
ing-machine. 2.Separate devices of a machine; as, MAGISTRATE.!" a governor, rulsr,
the coulter of a plow, the driver of a reaping-machine. officer. Correlative, the people.
3, New devices of a machine in combination with old
elements, all embraced in one claim, or with separate ' Grier v. Castle, 17 F. E. 524 (1883), McKennan, J,
See Winans v. Denmead, 15 How. 342 (1853): Gill v.
claims for what is new, together with a claim for the sel.'
new combination of all the elements. 4. Devices or WellSi 22 Wall. 24(1874); Stevens v. Pritchard, 4 Cliff.
418 (1876).
elements of a machine in combination, all being old.*
All that the law requires of an inventor of a machine ^Seavey v. Central Ins. Co., Ill Mass. 541 (1873);
Pierce v. George, 108 id. 78 (1871); State v. Avery, 44
is that he shall describe the manner of constructing
Vt. 029 (1872); Commonwealth v. Lowell Gas Light Co.,
' Exp. Wall. lOr U. S. 275 (1882), Bradley, J. Wall, an 12 Allen, 78 (1866); Buchanan v. Exchange Fire Ins. Co.,
attorney-at-law, was disbarred by the Circuit Court 61 N. Y. 26, 33 (1874),
for the Southern District of Florida for advising in a ' Georgia Pacific E. Co. i;. Brooks, Sup. Ct. Ala.
case of lynching, and sought reinstatement by a Tnan-
damus from the Supreme Court. « Pierce v. George, 108 Mass. 78, 81 (1871): 11 Am. E.
2 United States v. Hardyman, 13 Pet. 178 (1839). 314-17, cases ; Ottumwa Woolen Mill Co. i'. Hawley, 44
5 F. machine; Gk. mechane^ & device. Iowa, 60-64 (1876), cases: 24 Am. E. 720-82, cases.
« Corning v. Burden, 15 How. 367 (1853), Grier, J. ^ Galveston. &c. E. Co. v. Drew, 59 Tex. 10
' Burr V. Duryee, 1 Wall. 570 (18C3), Grier, J. Whart Neg. 8J1, 859, cases.
' Santord v. Merrimac Hat Co., 4 Cliff. 405 (1876), "37 N.J. '^■'
E. 397.
Clifford, J. And see Georgia Pacific E. Co. v. Brooks, (1888).
'.Story, Ag. §33.
Sup. Ct. Ala. (1888); also Union Sugar Refinery v. 6 Story, Partn. § 95.
Matthiessen, 8 Fish. P. C. 605 (1865). ' L. magister, q. v.
 MAGNA CHARTA MAIL
644

enih chiefly concerns dower, and quarantine; the

Supi'eme magistrate. One in whom eighth relates to the collection of crown debts, their
the sovereign power of the state resides.
priority, sureties, etc,; the ninth perpetuates the
Subordinate magistrate. Derives his au- right of self-goverfiment in London, and certain bor-
thority from, and is accountable to, the for- oughs; the tenth provides that the court of common
mer, and acts in an inferior, secondary pleas should be held in some fixed place; fha four-
teenth forbids excessive fines; the <«)enti/-mnWi pro-
sphere. 1 vides that life, liberty, and property shall be forfeited
Of the former are Parliament and the king; of the
latter, sheriffs, coroners, justices of the peace, con- only by judgment of the subject's peers or by the law
of the land, and that justice and right are not to be
stables, surveyors of highways, overseers of the poor,^
The President is the chief magistrate of the nation; sold, denied, or deferred; the thirtieth directs that
the governors are the chief magistrates of the States. foreign merchants shall be treated as English mer-
It is difQcult to fix a definite meaning to the word chants are treated while abroad; the thirty-sixth re-
lates to gifts to religious houses; the thirty-seventh
"magistrate," a generic term importing a public offi- recites that the charter was bought of the crown with
cer, exercising a public authority. A consul at a for-
a fifteenth of the movable property, in consideration
eign port is a magistrate,'^
A person clothed with power as a public civil officer. whereof the king, for himself and his heirs, cove-
. . The appellation is not confined to justices of the nanted not to infringe the liberties specified.
peace, and other persons ejusdem generis, who exer- Many of its provisions have been modified by later
cise general judicial powers; but it includes others, legislation; and many are preserved in the bills of
rights or constitutions of the States,
whose main duties are strictly executive.'
The concessions of Magna Charta were wrung from
Magisterial. Belonging or pertaining to the king as guaranties against the oppressions and
the office or dtities of a magistrate. usurpations of his prerogatives, . . The actual and
Magistracy. The office or position of a, practical security for English liberty against legislative
magistrate, or of all governmental officers as tyranny was the power of a free public opinion repre-
a body or class. sented by the Commons,^
The words of Magna Charta stood for very different
Magistrate's court. In Philadelphia, things at the time of the separation of the Anierican
Pennsylvania, a court, not of record, for colonies from what they origiuall)' represented. .
police and civil cases, with jurisdiction not It is more consonant to the true philosophy of our his-
exceeding one hundred dollars. torical legal institutions to say that the spirit of per-
The constitution of 1874 established one such court sonal liberty and individual right, which they embodied,
for every thirty thousand inhabitants. The term of was,preserved and developed by a progressive growth
office is five years. The magistrates are elected on a, and wise adaptation to new circumstances and situa-
general ticket by the voters at large; and they are tions of the forms and processes found fit to give, from
time to time, new expression and greater effect to
compensated by a fixed salary paid by the county.
No increase of civil jurisdiction is allowable; and no modem ideas of self-government,*
political duties may be conferred upon them."* MAIL.2 1. A small piece of money ; rent.
MAGNA CHARTA. The Great Charter : Extant in black-mail, q. v.
the principal guaranty of English liberties, 8. A bag, valise, or portmanteau, used in
the conveyance of letters, papers, packets,
obtained June 19, 1315, fi-om King John.
With some alterations, confirmed in parlia- etc., by any person acting under the author-
ment by Henry III, his son. ity of the postmaster-general, from one post-
By 25 Bdw. I (1298), allowed as part of the common office to another.3
law; and copies were to be read twice a year in the Each bag so used is a mail, of which there may be
churches, several in the same vehicle; as, the way -mail, the
Contained few new grants — was declaratory of the general, the letter, or the newspaper mail.^
grounds upon which the fundamental law rested. In its original sigBification, a wallet, sack,
Redressed grievances incident to feudal tenures, and
budget, trunk or bag; and in connection
removed some forms of oppression by the crown, "
Copies are presei-ved in the British Museum, The
with the post-offlce, the carriage of letters,
original was in Latin; in the statute-book it is printed whether applied to the bag into which they
in Latin and English in parallel columns. It consisted are put, the vehicle by which they are trans-
of thirty-seven chapters or distinct statutes. The first ported, or any other means employed for their ,
chapter confirms the pre-Norman liberties; the sev-
carriage and delivery by public authority.*
' 1 Bl. Com, 146, 338. 1 Hurtado v. California, 110 U, S, 531, 529, 530 (1884),
''Scanlan v. Wright, 13 Pick, 628 (1833), Shaw, C, J, Matthews, J.
s Gordon -u. Hobart, 2 Sumn, 404-5 (1836), Story, J., 2 1. F, maile, bit of money, 8, F, mall&, a trunk,
after quoting Blackstone, supra. s United States v. Wilson, Baldw, 105 U830), Bald-
' Cdnst, Penn,, Art, V, sec, 12, win. J.
5 See 1 Bl, Com. 127-28; 2 id. 53, 77; 3 id. 38; 4 id. 423, « Wynen v. Schappert, 6 Daly, 560 (1878), Daly, C. J.
 MAIL 645 MAIL

The term came into use referring to the valise which ures, or both, indicating the date on which the sub-
postillions or carriers had behind them and in which scription to such matter will end, the correction of
they carried letters, at an early period. After the any typographical error, a mark, except by written or
establishment of post-offtces, post-routes, and post- printed words, to designate a work or passage to
chases, it became, as it is now, a general word to ex- which it is desired to call attention; the words " sam-
press the carriage and delivery of letters by public ple copy " when the matter is sent as such, the words
authority ^ " marked copy " when the matter contains a marked
In an entry of having posted notice of dishonor, item or article; and publishers ornews agents mayin-
"mailed " implies that the postage was prepaid.^ close in their publications, bills, receipts, and orders
for subscriptions thereto, but the same shall be in such
Mail matter. Letters, packets, etc., re-
form as to convey no other information than the
ceived for transmission, and to be transmit-
name, place of publication, subscription price of the
ted, by post to the person to whom directed. 3 publication to which they refer and the subscription
Mailable; non-mailable. Refer to mat- due thereon. Upon matter of the third class or upon
ter which may, or may not, be sent through the wrapper or envelope inclosing the same or the tag
the mails. or label attached thereto the sender may write his own
Mailable matter shall be divided into four classes: name, occupation, and residence or business address,
1. Written matter — letters, postal cards, and all mat- preceded by the word " from," and may make marks
ters wholly or partly in writing, except as otherwise other than by written oi* printed words to call atten-
provided. 2. Periodical publications — all newspapers tieu to any word or passage in the text, and may cor-
and other periodical publications which are issued at rect any typographical errors. There may be placed
stated intervals, and as frequently as four times a upon the blank leaves or cover of any book or printed
matter of the third class a simple manuscript dedica-
year, and are within the couditions described. 3. Mis-
cellaneous printed matter — books, transient news- tion or inscription not of the nature of a personal cor-
papers, and periodicals, circulars, and other matter respondence. Upon the wrapper or envelope of third-
class matter or the tag or label attached thereto may
wholly in print, proof-sheets, corrected proof-sheets,
be printed any matter mailable as third class, but
and manuscript copy accompanying the same. 4. Mer-
chandise—all matter not embraced in the foregoing there must be left on the address side a space suffi-
cient for a legible address and necessary stamps.
classes, which is not in form or nature liable to destroy,
With a package of fourth-class matter prepaid at the
deface,or otherwise damage the contents' of the mail proper rate for that class, the sender may inclose any
bag, or harm the postal employee, and is above the
mailable third-cla^ matter, and may write upon the
, weight of four pounds for each package, except in the
wrapper or cover thereof, or tag or label accoippany-
case of single books, and documents published or cir-
ing the same, his name, occupation, residence or busi-
culated by order of Congress, or official matter ema-
nating from any department of the government or ness address, preceded by the word *' from," and any
from the Smithsonian Institution, or which is not de- marks, numbers, names, or letters for purpose of de-
clared non-mailable by act of July 12, 1S76, or matter scription, or may print thereon the same, and any
appertaining to lotteries, gift concerts, or fraudulent printed matter not in the nature of a personal cor-
schemes or devices.* Also non-mailable are: obscene respondence, but there must be left on the address
side or face of the package a space sufficient for a
books, scurrilous and disloyal letters; which matter
legible address and the necessary stamps. In all
shall be held subject to the order of the postmaster- cases directions for transmitting, delivery, forwarding,
general.* or return shall be deemed part of the addre^; and
An act approved January 20, 1888 (25 St L. 1),
amending the act of March 3, 1879, §§ 22, 23 (1 Sup R. S. the postmaster-general shall prescribe suitable regula-
tions for carrying this section into effect.
p. 457), provides. That mailable matter of the second Sec. 2. That matter of the second, third, or fourth
class shall contain no writing, print, or sign thereon or
therein in addition to the original print, except as class containing any writing or printing in addition to
the original matter other than as authorized in the
herein provided, to wit: the name and address of the
preceding section shall not be admitted to the mails, nor
person to whom the matter shall be sent, index figures
delivered, except upon payment of postage for matter
of subscription book either printed or written, the
of the first class, deducting therefrom any amount
printed title of the publication and the j)lace of its
which may have been prepaid by stamps affixed, unless
publication, the printed or written name and address
without addition of advertisement of the publisher or by direction of the postmaster-general such postage
shall be remitted ; and any person who shall knowingly
sender, or both, and written or printed words or fig- conceal or inclose any matter of a higher class in that
of a lower class, and deposit or cause the same to be
1 Wynen v. Schappert, ante. deposited for conveyance by mail, at a less rate than
= National Butchers', &c. Bank v. Be Groot, 43 N. Y. would be charged for both such higher and lower class
Supr. 344 (1878). See also Blake v. Hamburg-Bremen matter, shall for every such offense be liable to a
Fire Ins. Co., 67 Tex. 163 (1886).
penalty of ten dollars.
a United States v. Eapp, 30 F. R.-820 (1887), Neu- Letter postage was reduced to two cents per half
man, J.
ounce or fraction thereof by act of March 3, 1883. ^
* Act 3 March, 1879: 1 Sup. R. S. pp. 454-56.
6 Act 8 June, 1872: R. S. § 3893; Act 3 March, 1879, 1 See 22 St. L. 455. As to rates on other classes, see
§21: 1 Sup. R. S. p. 4j6. Act 9 June, 1884 (second class): 23 St. L. 40; Act 3
 MAIM 646 MAINTAIN

Mail-route; mail service. See Post- MAINTAIN.' 1. To keep up, sustain,

office; Route.
See also Accessary; Frank; Indecent; Letter, 3; preserve.
To maintain a partition fence is to keep it in repair,
Obscene; Obstruct, 2; Offer, 1. and, if destroyed, to rebuild it.^
MAIM.i 1. To coniDiit mayhem, q. v. A building is not maintained, but a nuisance may
Although both at common law and under our pres- be, by prosecuting it in the building."
ent more liberal practice, it is necessary, in charging To maintain a railroad implies no j)0wer to change
the offense o( maiming, or mayhem, to set forth what the location after construction,*
member ot the body -n-as actually injured or de- It is difficult to define what are " works of mainte-
stroyed, yet under a charge of assault with intent to nance " toward a railway. "Maintenance" is a very
maim or wound, it has never been necessary to do large term, and useful or reasonable ameliorations are
more than to allege the intent in the words of the stat- not excluded. You may maintain by keeping in the
ute, without setting forth particiilarly the manner in same state, or by keeping the same state and improv-
which the injury was to be inflicted.^ ing the state, always bearing in mind that it must be
2. Referring to a domestic animal, implies maintenance as distinguished from alteration of pur- ^
inflicting some permanent injury upon it. See Prohibition, 1.
" Disfiguring " is a lower grade of the same offense.* 2._ In pleading, to support what has already
See Wound.
been
pose.'brought into existence.*
MAIM". \, adj. Eng. Great, : igh: as, 3. To assist in, to promote. See Mainte-
the main sea, q. v. nance, 1.
2, n. F. A hand.
4. To provide for the support of a person.
En owe! main. In equal hand. See
Owelty. See Maintenance, 2.
Ouster le main. Take out of the hand. Maintenance. Support; preservation,
See Ouster. continuance. Has two special applications :
See Mainer; Mainor; Mainpernor; Mainpbize; 1. An unlawful taking in hand, or uphold-
Maintain; Manner; Mortmain. ing of quarrels or sides, to the disturbance
MAINEK. See Main, 2. or hinderance of common right.'
When a libel is produced written by a man's own An officious intermeddling in a suit that
hand, apd the author is not known, he is " taken in the no way belongs to one, by maintaining or as-
mainer," and that throws the burden of proof upon
sisting either party, with money or other-
him.*
MAINOR. A thing stolen, in the hands wne, to prosecute or defend it.'
of the thief. Assisting another person in a lawsuit, with-
At common law, when a thief was taken " with the out having any privity or concern in the
mainour." that is, with the thilng stolen inmanu, in
his hand, he might be brought into court, arraigned subject.^
The intermeddling of a stranger in a suit
and tried without indictment. "Mainour " also desig- for the purpose of stirring up and continuing
nated the article itself -which was stolen."
The practice was abolished in the reign of Edward
the Third.' theMaintainor.
litigation.!"' One chargeable with main-
MAINPERNOR.6 A surety that a de-
fendant would appear and answer all charges. At commontenac. • law, maintenance is an offense against
public justice: it keeps alive strife and contention,
" Bail " are sureties fora specified matter, expressly
stipulated. They may imprison or surrender at any and perverts the remedial process of the law into an
time; whereas, "mainpernors" can do neither.**
Mainprize. The writ or proceeding by which a ' F. maintenir: L. manu tenere, to hold by the hand,
defendant was committed to mainpernors.' to uphold.
' Rhodes v. Mummery, 48 Ind. 218 (1874).
' Commonwealth i). Kimball, 103 Mass. 467 (1670),
March, 1879 (second, third, fourth classes); 1 Sup. R. S. eases. See also State v. Main, 31 Conn. 574 (1863).
455; also, E. S. §§ 3S96-3913. * Moorhead v. Little Miami R. Co., 17 Ohio, 340, 353
* F. mekaing, abatement of strength from hurt; (1848).
mutilation. ' Sevenoaks, &c. R. Co. v. London, &c. R. Co., L. E.,
^ Eidenour v. State, 38 Ohio St. 273 (1883). 11 Ch. D. 625 (1879), Jessel, M. R,
= State V. Harris, 11 Iowa, «6 (1860); Regina v. Bul- "Moon V. Burden, 2 Excheq. *30 (1848); Louisville,
lock, 11 Cox, Or. C. 127 (1S6S). &c. R. Co. V. Godman, 104 Ind. 492 (1886).
* Rex V. Beare, 1 Ld. Ray. 417 ' Coke, Litt. 368 b; 51 Me. 63.
5 4B1. Com. 307; 3 id. 71. s 4 Bl. Com. 135; 44 N. H. 303; 30 Wis. 233.
^F. main, hand; pernor^ taker. " Wickham v. Conklin, 8 Johns. *228 (1811).
' 3 Bl. Com. 128. ' » ;; Pars. Contr. 766 ; 35 Vt. 69.
 MAIZE 647
MALE

engine of oppression. " Champerty " and "barratry" In corporations, within the scope of the corporate
are species.^ authority, the majority rule Beyond this they have
But a master may maintain, that is, abet and assist, no right to go, and one may insist upon their stopping
his servant, and a parent uphold his child, in a law- at the limits. ^
See Corporation; Partnership; Proxy.
suit.=
The ancient English doctrine respecting mainte- Qualified voters who absent themselves from an
nance has found little favor here." See Champerty. election are presumed to assent to the will of the ma-
jority of those who vote, unless the law providing for
2. Provision for the sustenance of a per-
the election declares otherwise.''
son — a minor, wife, widow, parent.
Good of the majority; majority r ule.
Separate maintenance. An allowance
The majority of the members in communities
made for a wife by her husband.
If a husband, without just cause, deserts his wife, liave always claimed the right to govern the
leaving her without adequate means of support, a whole society." See Police, 2; Welfare.
court of equity will compel him to provide a reason- MAKE. 1. To prepare, subscribe, verify
able amount for her.* See Necessaeies. and file : as, to make answer.
MAIZE. See Grain. 2. To transfer for the benefit of a creditor
MAJESTY. See Prerogative. or creditors : as, to make an assignment.
MAJOR; MAJUS. L. The greater; 3. To sign, seal, and deliver; to execute;
opposed to minus, the lesser, the less. as, to make a bill, deed, note.
Major in se eontinet minus. The 4. To agree to, or to execute : as, to make
greater comprises the less within itself. a contract.
Omne majus eontinet in se minus. The 5. To fail to do a thing required in the con-
greater includes the less. Omne majiis tra- duct of legal proceedings: as, to make de-
hit ad se m,inus. The greater draws the less fault.
to itself — the accessory follows its princi- 6. To produce, create : as, to make an issue. I--'
pal.5 See Greater ; Majority. 7. To collect or procure under an execu-
Major vis. The stronger agency. See tion: as, to make the money; money made.
Vis, Major. 8. To swear or affirm to, in due form : as,
MAJORITY.* 1. The civil condition of to make oath, or affirmation. ,
one who is of the full age of twenty-one 9. To transfer : as, to make over.
years." Opposed, minority. See Age; 10. To prepare and read in open court: as,
Whem.
to make a presentment.
3. The greater number or portion; more 11. To certify what was done under the
than half of all electors, votes or voters. Op- mandate of a writ : as, to make a return.
posed, minority. Compare Plurality. Compare Facerb ; Fieri ; Manufacture.
a director of a school board who does not vote is
Maker. Specifically, he who executes a
not virtually absent- he is viewed as not voting at all
or else as voting tor the candidate who has the mi- promissory note. But "law-maker" means
nority.* a legislator; and "the law-makpr," the in-
A majority cannot arbitrarily deprive the minority dividual, orbody that enacts a law or laws.
of opportunity to deliberate, and, if possible, convince MAL.* A prefix denoting ill, evil, unskill-
their fellows." See Hoose, 2.
ful, unlawful.'
As, in maladministration, maldistribution, malfea-
' 4 Bl. Com. IXi. sance, malpractice, maltreatment. See Mis.
= 1 Bl. Com, 429, 450.
MALA. See Malus.
3 Roberts v. Cooper, 30 How. 483 (1SS7). See 3 Cow.
MALADMINISTRATION. See Mal;
647; 18 How. 507; 54 Ala. B6; 40 Conn. 570; 3 Harr.
(Del.) 308; 57 Ga. 2&3; 11 Mass. 549; 5 Pick. 3.59; 2 Mo Administer, 4.
Ap. 4; 11 Humph 56; 10 Heisk. 341; 2 Story, Eq. MALE. See Descent; Gender; Issue, 5;
§§ 1048-57; 2 Bish. Cr. L. 122. Man.
< See Garland v. Garland, 50 Miss. 700-716 (1874), cases ;
VanArsdalen v. Van Arsdalen, 30 N. J. E. 369 (1879). 1 Leo V. Union Pacific R. Co., 18 P. E. 283 (1834).
"1 Story, Ag. § 172; 118 U. S. 687; 1 Gray, 336; 74 Pa. > County of Cass u. Johnston, 95 U. S. 369 (1877),
468. cases. Miller and Bradley, JJ., dissenting. See also
« L. major, the greater. 23 Alb. Law J. 44-47 (1880), cases; 48 111. 263; 69 Ind.
' See 8 Op. Att.-Gen. 62. 503; 22 Minn. 63; .33 Mo. 103.
« Commonwealth v. Wickersham, 66 Pa. 134 (1870). > See 1 Story, Const. § 3.30.
See 96 U. S. 369. < F. mal: L. male: malus, bad.
' Commonwealth v. Cullen, 13 Pa. 144 (1850). ' See Minkler v. State, 14 Nev. 183 (1883).
 MALEFICIUM 618
MALICE

MALEFICIUM. L. Wrong-doing ; un- In a newspaper publication, malice in uttering false

statements may consist either in a direct intention to
lawful action; injury; tort.
injure another, or in a reckless disregard of his rights,
Ex maleflcio. On account of misconduct. and of the consequences that may result to him. J
See Thust, 1, Trustee. Want of knowledge may aggravate the malignity of
MALFEASANCE. See Mal ; Feasance. the case by showing an indiscriminate malice and in-
M ALICE. 1 Wicked intention to do an dif erence tothe peace of the innocent.-*
injury.2 Actual malice J malice in fact; ex-
In law, any improper and sinister motive ; press m.alice. Malice existing as a matter
of fact.
not necessarily spite and hatred.^
Express malice in homicide exists when one, with
Wantonness ; willful disregard of right and a sedate, deliberate mind and formed design, doth kill
duty : doing an act contrary to a man's own another; which design is evidenced by external cir-
convictions of duty.* cumstances discovering that inward intention; as,
The state of mind in which one willfully lying in wait, antecedent menaces, former grudges,
and concerted schemes to do bodily harra.^
does that which he knows will injure an- Express malice consists in the deliberate intention
other's person or property. ^ of doing any bodily harm to another, unauthorized by
Not limited to acts done from hatred, re-
venge, or passion ; includes all acts wantonly Express malice means a deliberate intention and
or willfully done, that is, acts which any law.^
design to commit the offense in question^"
man of reason, knowledge, and ability must Constructive malice; implied malice;
know to be contrary to his duty.*
legal malice. Malice inferred from acts;
In homicide, a wicked, malignant, and re-
malice imputed in law.
Implied malice, or malice in law, is malice inferred
vengeful act, flowing from a heart regardless from an act, presumed from a deliberate act, though
of social duty, and fatally bent on mischief.' no particular enmity can be proved. -As. where a man
In trespass, when the injury has been wan- kills another without provocation — which evidences
an abandoned heart; or where a criminal kills a, per-
ton, ol- gross and outrageous.8 Not merely
son who is endeavoring to make a lawful arrest; or
the doing of an unlawful or injurious act,
where a person, intending to commit another felony,
but an act conceived in a spirit of mischief, kills a man — as, shoots at A and kills B against whom
or of criminal indifference to civil obliga- he has no ill-intent; or, a killing by an abortionist.
tion.9 Any such killing is murder, because of the previous
Thus, in malicious prosecution, the term is quite felonious intent, which the law transfers to the act.
comprehensive, and includes many phases of wrong Indeed, all felonious homicide is presumed to be ma-
motive and conduct. There may be ill-will, malevo- licious until the contrary appears. °
lence, spite, a spirit of revenge, or a purpose to injure Implied malice is malice which has no existence in
without cause, but it is not necessary there should be. fact, but which the law imputes to the guilty party. ^
If the prosecution is willful, wanton or reckless, or Implied malice exists where mischief is intention-
against the prosecutor's sense of duty and right, or ally done without just cause or excuse."
for ends he knows or is bound to know are wrong and
Malice aforethought "or prepense. In
against the dictates of public policy, it is malicious. ^° homicide, Hot so properly spite or malevo-
lence to the deceased in particular, as an evil
^ F. malipe: L. malitia, badness. See Malitia.
2 Tuttle u Bishop, 80 Conn. 83 (1861).
' Mitchell V. Wall, 111 Mass. 498 (1873), eases. 1 Gott V. Pulsifer. 133 Mass. 239 (1877), Gray, C. J.;
' United States v. Buggies, S Mas. 192 (1838), Story, J. Lothrop V. Adams, 183 id. 479.(1882); Barr v. Moore, 87
ii Territory v. Egan, 3 Dak. 130 (1882), Kidder, J. Pa.. 393 (1878); Negley v. Farrow, 60 Md. 171" (1882);
» United States v. Coffin, 1 Sumn. 398 (1833), Story, J.; Odgers, Lib. & SI. *264; Townshend, SI. & Lib. § 87.
Wiggin V. Coffln, 3 Story, 1 (1888); Dexter v. Speai', 4 2 Dexter v. Spear, 4 Mas. 11" (1835), Story, J.
Mas. 117 (1826); United States v. Harriman, 1 Hughes, s 4 Bl. Com. 199.
5-38 (1878). * People V. Clark, 7 N. T. 333 (1858).
' United States v. Ruggles, supra. See also 37 Ind. » [Anthony v. State, 21 Miss. 264 (1850).
114; 89 id. 193; 26 Ga. 156, 275; 30 Miss. 678; 31 Mo. 147; ' 4 Bl. Com. 199-301.
19 Iowa, 447; 85 Mich. 16. ' Darry v. People, 10 N. Y. 188 (1854).
s Day V. Woodworth, 13 How. 371 (1851). * Parke v. Blackiston, 3 Harr. 378 (Del.. 1841).
« Philadelphia, &c. E. Co. v. Quigley, 21 How. 214 See, on express and implied malice, 31 Cal. 53 ; 12 Pla.
(1853), Campbell, J.; Milwaukee, &o. R. Co. ^v. Arms, 135; 8 Ga. 334; 26 id. 156; 101 111. 331; 1 Ind. 3S3; 8 La.
An. 969; 37 Me. 468; 9 Mete 104; 15 Pick. 337; 30 Miss.
91 '»U.Hamilton
S. 493 (1876). '
v. Smith, 39 Mich. 329 (1878), Graves, J. ; 684; 25 Mo. 151; 43 id. 161, 3!3; 11 S. & R. 40; 82 Tex.
Be Murphy, 109 111. 33 (1884) ; Ramsey v. Arrott, 64 Tex. 641; 33 id. 645; 8 Tex. Ap. 109; 4 B. & C. 353; 9 CI. & F.
323 (1885). 32; 2 Steph. Hist. Cr. Law Eng. 118-21.
 MALICE 649 MALPRACTICE

design in general ; the dictate of a wicked, In a legal sense, describes any unlawful act done
depraved, and a malignant heart.i willfully and purposely to the prejudice and injury of
Is not confined to homicide committed in cold blood, another.'
with settled design and premeditation, but extends to The intentional doing of a wrongful act with knoivl-
all cases of homicide, however sudden the occasion, edge of its character, and without cause or excuse.^
when the act is done under such cruel circumstances Describes the state of mind in which many acts
(crimes and torts) are done: as, malicious — abandon-
as are the ordinary symptoms o£ a wicked, depraved,
and malignant spirit.^ ment, arrest, battery, burning, communication, deser-
tion, injury, intention, libel, mischief, prosecution,
Includes not ouly anger, hatred, and revenge, but publication, gg. v.
every other unlawful and unjustifiable motive. Is not
confined to ill-will toward one or more individual per- Maliciously. With deliberate intention to
sons, but is intended to denote an action flowing from injure ; willful : as, the malicious burning of
any wicked and corrupt motive, a thing done malo
animo, where the fact has been attended with such
a building.'
Maliciously suing out an attachment means not
circumstances as carry in them the plain indication of only malevolent intention to do injury, but also that
a heart regardless of social duty, and fatally bent on careless disregard of the rights of others which, with-
mischief. Therefore, murder is implied from an.y de- out real ill-will, the law implies as malice.*
liberate or cruel act against another, however sudden. In a spirit of wicked revenge toward a person, or of
The words do not imply deliberation, or the lapse
of considerable time between the malicious intent to wanton cruelty toward an animal.^
In misdemeanors and felonies, imports a criminal
take life and the actual execution of that intent, but
motive, intent or purpose.^
they rather denote purpose and design, in contradis- See Dbuberation, 3; Damages, Exemplary; In-
tinction to accident and mischance.^ tent: Knowledge, 1; Motive.
Whenever a homicide is shown to have been com-
mitted without lawful authority and with deliberate MALITIA. L. Vicious will; evil de-
intent, it is sufficiently proved to have been with mal- sign ; wickedness ; malice. Compare Dolus ;
Malus.
ice aforethought. It is not necessary to prove that
any special or express hatred or malice was enter- Malitia supplet setatem. Viciousness
tained by the accused toward the deceased. It is suf- makes up for age ; a wicked design supplies
ficient to prove that the act was done with deliberate
intent, as distinct from an act done under the sudden the want of years.
Between seven and fourteen an infant is prima
impulse of passion, in the heat of blood, and without
facie incapable of criminal intention. Evidence of
previous malice.* See Murder.
naischievous discretion will rebut this presumption.'
Particular malice ; personal malice. MALO. See Malus.
Particular malice is ill-will, grudge, a desire
MALPRACTICE.8 Unskillful treatment
to be revenged on a particular person.''' by a physician or surgeon, in consequence of
Personal malice is spite against some particular in-
dividual. Itis one of the two varieties of malice in which the patient is injured more or less
fact, the other being what Blackstone terras " uni- seriously, perhaps permanently.
versal "malice, or malice against the world generally, Spoken of as ignorant, negligent, or willful.
without reference to individuals: as, where a person Some authorities hold that the ofi^ense, however oc-
discharges a gun into a multitude, or starts out to kill casioned, isa misdemeanor: it implies a violation of
and does kill the first man he meets."
Malicious. Characterizes an act not only confidence.*
The patient may have a civil action for damages.
The majority of the cases arise from amputations,
when it arises fi-om personal spite, but when
it is a wanton and intentional injury, when
it is willful.' 1 [Commonwealth v. Snelling, 15 Pick. 340 (1834),
Shaw. C. J.
2 Rounds V. Delaware, &c. R. Co., 3 Hun, 383 (1874).
' 4 Bl. Com. 198. See also 9 Mete. 106; 29 Tex. 266; 76 Va. 132.
■' United States v. Cornell, 2 Mas. 91 (1820), Story, J. = Tuttle V. Bishop, .30 Conn. 85 (1861).
■Commonwealth, v. Webster, 5 Cush. 304-0(1850), « Jennan v. Stewart, 12 F. R. 868 (1882), Hammond,
Shaw, C. J. District Judge.
• United States v. Guiteau, 10 F. R. 162, 165 (1882), ' Commonwealth v. Walden, 3 Cush. 559 (1849). See
Cox, J. ; Davison v. People, 90 111. 229 (1878); Spies et al. also 7 Ala. 728; 1 Minn. 292; 3 Terg. 878.
D.TeopIe, 122 id. 174 (1887). « Commonwealth v. Brooks, 9 Gray, 303 (1857); Com-
1 Brooks V. Jones, 11 Ired. L. 261 (1850). monwealth V. Boynton, 110 Mass. 345 (1874). That a
malicious act of itself gives no right of action, see 18
" See 4 Bl. Com. 200; Brown's Law Diet. See gen-
'erally 1 Curtis, 4; 1 Dak. 458; 29 Ga. 594; 29 Kan. 427; Cent. Law J. 424-28 (1884), cases.
13 Mo. 332; Ifl Nev. 307; 49 N. H. 399; 13 Wend. 159; 68 ' 1 Bl. Com. 46.5; 4 id. 2, 83; 2 Kent, 233.
Pa. 9; 14 Tex. Ap. 236, 300, 331 ; Law Mag. & Rev,, Aug. 9 L. mal praxis, bad or faulty practice. See Mal.
1883. ' See 3 Chitty, Cr. L. 863; 1 Pr. 43; 2 Russ. Cr. 277; 0
' Dexter v. Spear, 4 Mas. 118 (1825), Story, J. Mass. 134; 8 Mo. 561; 3 C. & P.629; 4 id. 423.
 MALTREATMENT 650 MANAGE

fractures, and dislocations. The surgeon must know rive their guilt merely from prohibition by the laws of
and apply what is settled in his profession, and bring
the laud.^
to the performance "of an operation at least ordinary MALVERSATION. Any punishable
skill; and the patient must not directly contribute, to fault committed in the exercise of an office.
an extent that cannot be distinguished, to the results
Originally, a term in French law.'
of the treatment he afterward complains of.' See
Care; Maltreatment. MAN. l.'include's all human beJngBpjr
MALTREATMENT. Synonymous with any human being whether male or .Xemale :
bad treatment. as, in the expressions, offenses a,gainst man,
Does riot imply, necessarily, conduct that is either manslaughter, material-man, remainder^'
willfully or grossly careless. Results from ignorance, man, warehouseman, and perhaps- bonds-
negligence, or willfulness. This, at least, is the mean- man. Compare Hojao ; Person.
ing, as applied to the treatment of a wound by avsur-
3. Restricted to males — adults: as, in al-
geon.2 Compare Malpkaotice.
Maltreatment of anituals. See Cruelty, 3. dermanj assemblymah,"cbngressman, jury-
MALUM. See Malus.
ma-nT'talSSHianr "
MALUS. L. Bad ; evil. Compare MAt. In a statute, " single man" and "married man"
may be taken in a generic sense, and the former in-
Mala. JBad ; in or witli tiiat which is bad, clude an unmarried woman. ^
evil, unlawful. " When any man shall die leaving minor children
Mala fides. Bad faith; opposed to tona and no widow," in a statute of descents, " man " will
include a woman who dies leaving a minor child, and
fides. See Fides.
no husband.* See Gender.
Mala grammatica. Bad grammar, q. v.
3. In feudal law, a vassal. See Feud.
Mala mens. Bad mind: fraudulent or
Man of straw. See Straw.
criminal intention.
MANAGtE.s To direct, control, govern,
Mala praxis. Bad treatment: malprac- administer, oversee.
tice, q. V. It is not easy to establish a rule as to what may
Malo. With or in bad, evil, unlavvful.
be considered " unmanageableness " in a horse, and
much depends upon the circumstances of each case.^
Malo animo. With bad intent ; maliciously." Management. 1. The management of an engine
Malo sensu. In the bad meaning. See
Slander. consists in part of the management of whatever gen-
erates the motive force. '
Malum. Evil, an evil, a wrong. Plural, 3. The body of persons who have charge of the af-
mala. fairs of a corporation. See Director.
Malum in se. Evil in itself; an act per- Manager. 1. An officer of a corporation
nicious in its very nature. Malum prohib- chosen to superintend its affairs.
itum. A forbidden evil; an act made An ambiguous word, since it may mean either a
person retained generally to represent the principal in
wrong by legislation. his absence, or one who has the superintendence of a
Crimes and misdemeanors, such as murder, theft,
particular contract or job, in which latter case he is
and perjury, are mala in se, and contract no addi-
tional turpitude from being declared unlawful by a like a fellow- workman. 8
human legislature. But it is otherwise as to thi;igs in General manager. The person who really
themselves indifferent: these become right or wrong, has the most general control over the affairs
just or unjust, duties or misdemeanors, as the munici- of a corporation, and who has knowledge of
pal legislator sees proper for promoting the welfare of all its business and property, and who can
society, and more effectually carrying on the purposes
act in emergencies on his own responsibility.
of civil lif e. ^
Some crimes and misdemeanors are mala in se: of-
fenses against divine law, natural or revealed; but by
far the greater part are mala prohibita; such as de- 1 2 Bl. Com. 420; 4 id. 5-10; 101 ir..S. 831; 108 id. 150;
31 F. R. 451.
'^ F. : L. male, ill, unlawful; versatio, behavior.
'See Hibbard v. Thompson, 109 Mass. 288 (1872), = Silver v. Ladd, 7 Wall. 326 (1868).
cases; Potter v. Warner, 91 Pa. 386 (1879): 36 Am. Rep. « Smith V. Allen, 31 Ark. 871 (1876).
668, 670, cases; Elwell, Malp. 65; 9 Conn. 209; 13 B. Mon. ' F. manege, control of a horse, handling: L. mantis,
819; 27 N. H. 460; 7 N. Y. 397; 25 Ohio St. 86; 82 Pa. a hand.
861; 68 id. 168; 39 Vt. 447. As to criminal liability for « Spaulding v. Winslow, 74 Me. 636 (1883): 3 Cliff. 81; '
death, see 27 Alb. Law J. 101-5 (1888), cases. 100 Mass. 49; 185 id. 583; 132 id. 49; 73 N. Y. 365; 81 Pa.
' Commonwealth v. Hackett, 2 Allen, 148-43 (1861), 50; 2 Thomp. Neg. 1207, cases.
Bigelow, C. J. ' Smith V. Old Colony, &c. E. Co., 10 R. I. 88 (1871).
3 1 Bl. Com. 54, 57. 8 Murphy v. Smith, 19 C. B. N. s. *360 (1865), Erie, C. J.
 MANDANT MANDAMUS
651

He may be considered as the "principal oflS- mined, or at least supposes, to be consonant

cer." 1 to right and justice.'
Managing agent. An agent having gen- A high prerogative (discretionary) writ of a most
extensively remedial nature, where justice is refused
eral supervision over the affairs of a corpo- or neglected. It issues where a party has a right to
ration. ^ have a thing done or has no other specific means of
Distinguishes a peraon, representing a corporation, compelling its perf oimance : as, to compel admission
who is invested with general power, involving the ex- or restoration to an or.ice or franchise of a public nat-
ercise of judgment and discretion, from an ordinary- ure ;for the production or inspection of public docu-
agent or employee who acts in an inferior capacity, ments; to compel a judge of an inferior court to do
and under the discretion and control of superior au- justice according to the powers of his office, as to
thority, both in regard to the extent of the work and
admit an attorney to practice.^
the manner of executing it.^
A proceeding to compel officers and others
Such agent need not have charge of the whole busi-
ness of the corporation.* to act in the discharge of the duties and
In several cases in New York, it has been held that trusts imposed upon them. It is not de-
"managing agent" means a person exercising the signed to review their action when discretion
functions of an officer in the contrpl and management may be exercised, or where action depends
of the business of a company or corporation, and does
not include a pereon having charge of some special upon facts to be determined by them.^
The courts are disposed to confine the remedy to
work, as, a baggage-master in respect to baggage, or
a person employed to purchase horses and feed, or an cases where there is no other adequate specific remedy.
assistant secretary, or a person who sells tickets, or ■ The writ affords a summary and specific remedy
who has charge of the transfer of the stock and the where without it the party will be subjected to serious
transmission of assessments. The adjudications have
In modern practice, in effect, is nothing more than
injustice.*
not gone so far as to hold that no agent is a " manag-
an ordinary -action at law between the parties, and
ing agent " who does not participate in the control of not regarded as a prerogative writ. It came into use
every part of the corporate business, and of every cor-
porate act. Still less has such construction been given by virtue of the prerogative power of the English
where it would defeat justice, and enable a corporation crown, and was subject to rules and regulations long
to violate the law with impunity." See Principal, 4, since disused.*
Vice. It may be said to be an established remedy
3. In England and Canada, the chief exec- to oblige inferior courts and magistrates to
utive oiBcer of a branch bank. do that justice which they ai'e in duty, and
3. A member of the impeaching branch of by virtue of their office, bound to do."
The writ lies where the plaintiff has a clear legal
a legislature, selected to assist as counsel at
right to the performance of an official or corporate
a trial. ' act, by a public officer or corporation, and no other
MANDANT. See Mandate, 3.
adequate, specific remedy exists.'
MANDARE. L. To enjoin, command : Regularly the writ lies against a public officer to
compel the performance of a public duty; never to
literally, to put into one's hand. restore to a private office or to execute a private right;
Mandamus. We command; we com- and, as a rule, never where the applicant has another
mand you.
The emphatic word in the Latin form of adequate remedy."^
Its office is to compel the performance of a duty
the writ of that name : a command issuing *014.
resting upon the person to whom the writ is sent. The

in the king's name, directed to any person, 13 Bl. Com. UO; 1 Cranch, 169; 5 Pet. *193; 13 id.
corporation, or inferior court of judicature
within the king's dominions, requiring them 2 3 Bl. Com. 110, 264.
to do some particular thing therein specified, " Scripture v. Burns, 69 Iowa, 73 (1883), Beck, J. See
which appertains to their office and duty, also 22 N. J. L. 47; 28 N. Y. 114.
•Tawas, &c. R. Co. o. Judge of Iosco County, 44
and which the court has previously deter- Mich. 47ii, 483 (1880): 24 id. 468; Huston, &c. E. Co. v.
Commissioner of Land Office, 36 Tex. 399 (1873); King
I Wheeler & Wilson Manuf. Co. v. Lawson, 57 Wis. V. Baker, 3 Bur. 1267 U702); State v. Board of Liquida-
404(1883), cases, Orton, J.; 110 U. S. 6. tors, 29 La. An. 267 (1877).
■' Upper Mississippi Transportation Co. v. Whittaker, 'Kentucky v. Dennison, 24 How. 97(1860), Taney,
16 Wis. a.35 (1862), Paine, J. C. J.; Hartman r. Greenhow, 102 U. S. 675 (1880); State
V. Lewis, 70 Mo. .379-81 (1882); High, Extr. Rem. 4.
' [Redd'ington v. Mariposa Land, &c. Co., 19 Hun, 408
(1879), Ingalls, J. « Virginia v. Rives, 100 U. S. 323 (1879), Strong, J.
•Palmer v. Pennsylvania Co., 35 Hun, 371 (1885). ■ ' Smalley v. Yates, 36 Kan. 523 (1887), cases, Horton,
'Hat-Sweat Manuf. Co. v. Davis Sewing-Machine Co., Chief Justice.
31 F. E. S95 (1887), cases. Brown, J. 8 Tobey v. Hakes, 54 Conn. 374r-75 (1886), cases.
 653
MANDAMUS MANDATUM

law geeks to enforce a personal oliligation, whatever The writ does not abate by expij'ation of the terra
the facts or relations out of which the duty grows. It of office, where there is a continuing duty irrespective
is a pei^onal action, resting upon the averred and as- of the incumbent. 1
sumed fact that the defendant has neglected or refused There is a preponderance of authority in favor of
to perform a personal duty, to the performance of the doctrine that private persons jnay move for a
which by him the relator has a clear right. Hence, mandamus to enforce a public duty, not due to the
demand, ^nd refusal, to do the thing, is necessary.' government as such, without the intervention of the
The writ is grounded on a suggestion of right in the government law-officer. The principal reasons urged
petitioner, and a denial of justice; whereupon, in against the doctrine ai-e that the writ is prei'ogative —
order more fully to satisfy the court that there is a reason which is of no force in this country, and no
probable ground for such interposition, "a rule is made longer in England,— and that it exposes the defendant
(except where probable ground is manifest) directing to be harassed with many suits — but the writ, being
the /party complained of to show cause why a man- discretionary with the court, will not be unnecessarily
damus should not issue; and if he shows no sufficient
cause, the writ itself is issued, at first in the alterna- The writ lies to restore an attorney who has been
tive: to do thus or show some reason to the con- granted.* unlawfully, and for cases where there is a
disbarred
trary; to which an answer is made at a certain day; legal right without any other remedy;^ to compel
and if the respondent shows an insufficient reason, Satisfaction of a judgment against a municipality, by
there issues & peremptory mandamus: to do the thing the levy of a tax, if the authorities have taxing power,
absolutely; to which perfect obedience is required," and the creditor is unable to obtain payment by exe^
A rule fU'st issues to show cause why a peremptory cution.* But not to compel the officers of a State to
writ should not issue. After due service, the respond- perform their political duties, as, to levy a tax for the
ent makes return to the charge contained in the rule — payment of bonds, the payment being repudiated by
by denying the matters .or setting up new matter, or
the State, s
he moves to quash the rule, or demurs to the allega- The Supreme Court has power to issue the writ in
tions. Amatter charged and denied must be proved cases warranted by the principles and usages of law
by the relator, and new matter in avoidance, if denied to the Federal courts or officers, where a State, an
by the relator, must be proved by the respondent. ambassador or other public minister or consul is a
Several defenses may be set up.^ party." Application for the writ to a subordinate
The appropriate functions of the writ are the en- court is " warranted by the principles and usages of
forcement of duties to the public by officers and law " in cases where the subordinate court, having
others, who neglect or refuse to perform them, and jurisdiction, refuses to hear and decide the contro-
for which there is no other specific remedy. The versy, or where such a court, having heard the cause,
presentation of a prima facie case of duty in the re- refuses to render judgment^ or enter a decree, but not
spondent and an obligation to perform it precedes the to re-examine a judgment or decree, nor to direct
granting of an alternative writ, and this is considered what judgment or decree shall be rendered, nor where
as done when the court has awarded the writ. The remedy by appeal or writ of eiTor lies.'
respondent is bound to deny the allegations in the Mandatum. L. A gratuitous bailment.
writ, or else by a demurrer or by a traverse of the See Mandate, 3.
facts, generally or by confession and avoidance, show
cause why he should not. In case of traverse, the
Quando aliquid mandatur, mandatur
facts relied upon must be set forth clearly, specific- et omne per quod pervenitur ad illud.
ally, and certainly, so that the court may see at once When anything is commanded, commanded
that the facts, if established or admitted, are sufficient also is everything by which it can be effected.
as the alternative for obedience to the writ.* The law authorizes the doing of every thing neces-
The writ does not lie to control judicial discretion, sary to accomplish what it commands; as, where
except when that discretion has been abused; but it is effect is to be given to a statute. For this reason,
a remedy when the case is outside of the exercise of also, a constable may order by-standers to assist him
this discretion, and outside of the jui'isdiction of the to compel offenders to keep the peace, and the sheriff
court or officer to which or to whom the writ is ad-
command citizens to join the posse.^ Compare Grant,
dres ed. Apeculiar and common use is to restrain in- 2, 3; Incident.
ferior courts and to keep them within their lawful
bounds.*
* Thompson v. United States, 103 U. S. 483 (1860),
cases.
1 United States v. Boutwell, 17 Wall. 607 (1873), Strong, 3 Union Pacific R. Co. v. Hall, 91 U. S. 355-56 (1875),
cases.
Justice.
2 3 Bl. Com, 110, 264; 53 Wis. 426; 40 Tex. 683. 3 Exp. Bradley, 7 Wall. 376 (1868).
3 Exp. Newman, 14 Wall. 166-67 (1871), cases, Chf- * Meriwether u Garrett, 102 U. S. 518-21 (1880).
ford, J. * Louisiana u Jumel, 107 U. S. 711 (18e2).
^ Commonwealth, ex rel. Armstrong v. Commission- « R. S. §§ 688, 716, cases.
ers of Allegheny County, 37 Fa. 379 (1860): Tapping, ''Exp. Newman, 14 Wall. 165 (1871), cases. As to
Mand. 347; 33 Pa. 218; 34 id. 496. jurisdiction in the Federal courts, see 19 Am, Law Rev.
6 Virginia v. Rives, 100 U. S. 323 (1879): Exp. Burtis, 505-46 (1885), cases.
103 U. S. 238 (1880), cases; lOpfd. 186. 8 8 Cush. 345; Broom, Max. 485.
 MANDATARY 653 MANNER

MAlfDATABY. See Mandate, 3. Dipsomania. A madness for drink. Kleptomania.

An uncontrollable impulse to steal. Mania a potu.
MANDATE.! ]. a charge, command; A frenzy for drinking. Monom^ania. Insanity upon
a judicial command. 2 one subject only. See further Insanity.
Includes "■ writ, process or other written direction
issued pursuant to law out of a court, or made pur- MANIFEST. 1 1. Apparent by examina-
tion, without need of evidence to make it
suant to law, by a court, or a judge, or a person act-
ing as ei, judicial officer, and commanding a court, more clear ; open, palpable, incontrovertible.
board or other body, or an officer or other person Synonymous with evident, visible, plain,
named or otherwise designated therein, to do or re-
obvious to the understanding from an exam-
frain from doing an act therein specified.*
The rescript or precept promulgated upon the de- ination :as, that there is eri'or in an assess-
cision of a cause by the Supreme Court is called a ment from inspection of the roll or return.^
mandate. It embodies what shall be done by the 3. A document showing of what goods a.
lower court.
cargo consists, where laden on board, for
Mandatory. Involving a command ; op- whom laden, to whom consigned, etc.3
posed to directory, q. v. MANKIND. See Man, 1.
Many statutory requisitions, intended for the guid-
ance of offlcers in the conduct of business, do hot limit MANNER.* A word of large significa-
theii" power or render its exercise in disregard of the tion, but cannot exceed the subject to which
requirements Ineffectual. Such are regulations de- it belongs : the incident cannot be extended
signed to secure order, system, and dispatch in pro- beyond the principal.*
ceedings. Provisions of this character are not manda- The power to direct the " manner," the mode, the
tory unless accompanied by negative words importing way, in which an act shall be done, and the power to do
that the acts shall not be done in any other manner or the act itself, are, obviously, not identical. To pre-
time than that designated. But when the require- scribe the manner of election or appointment to an
ments, as, in a tax sale, are intended for the protection office is an ordinary legislative function; to make an
of the citizen, and to prevent a sacrifice of his prop- appointment is an administrative function.*
erty, and by a disregard of which his rights might be In like manner. Assessment of damages "in
and generally would be injuriously affected, they are like manner," as prescribed by a former act, may re-
not directory but mandatory. They must then be fol- fer merely to the general method.'
lowed or the acts done will be invalid. The power of In tlie same manner. By similar proceedings,
the officer is limited by the manner and conditions so far as such proceedings are applicable to the sub-
prescribed for its exercise.* Compare PRonmiTioN, 1.
ject-matter.*
2. In a few of the States, the writ of man- That a mining tax shall be enforced '* in phe same
damus, q. V. manner " as a certain annual tax, does not necessarily
3. A contract by which a lawful business mean within the same time.^
Manner and form. Words used in tendering an
is committed to the management of another, issue, general or special. When of the substance of
and by him undertaken to be performed the issue, they put in issue the circumstances to the
without reward.' principal matter denied, — time, place, manner, etc.;
Mandant or mandator. The bailor in a otherwise, when not of the substance. When the cir-
cumstances are originally and in themselves material,
contract of mandate. Mandatary. The
and therefore to be proved as stated, the words *' in
bailee in such contract. See Bailment. manner and form " are of the substance. . The words
MAITDATUM. See Mandare, Manda- put in issue all material circumstances, and no other.'"
tum. See Mode; Modus.

MATJTA.6 1. Mental derangement ac-

companied with excitement. 1 L. manifestus, lit., struck by the hand: palpable;
2. Madness, irresistible impulse, insanity. apparent,
= Matter evident.
of Hermance, 71 N. T. 486 (1877), Allen, J.
> See 1 Story, U. S. Laws, 593.
' Mandare, q. v. * F. manier, habitual: main, hand.
6 Wells V. Bain, 75 Pa. 64 (1874), Agnew, C. J. See
" See McKelsey v. Lewis, 3 Abb. N. Cas. 63 (1877).
3 N. Y. Code Civ. Proc. § 8343, subd. 2; People ex rel. Brown v. O'Connell, 36 Conn. 447 (1870); 70 N. T, 483.
Munsell v. Oyer & Terminer, 36 Hun, 381 (1885). » State, ex rel. Attorney-General v. Kennon, 7 Ohio
1 French v. Edwards, 13 WaU. 511 (1871), Field, J. St. 560 (1857).
See also 20 How. 290; 3 McCrary, 333, 349; 13 F. E. 512, ' Thirty-fourth Street, Philadelphia, 81 Pa. 31 (1876).
608, cases. * Phillips u. County Commissioners, 122 Mass. 260
0 Stery, Bailm. % 137. See also 8 Ga. 178; 5 La. An. (1877).
9 State V. Eureka Consolidated Mining Co., 8 Nev. 29
207, 672; 10 Minn. 421; 42 Miss. 543; 35 Mo. 492; 58 N.
H. 17. (1872). See United States v. Morris, 1 Ciu-tis, 26 (1851).
• Gk. mani'a, mental excitement, frenzy, rage. i» [Gould, Plead. 293; Steph. PI. 213.
 MANOR 654 MANUFACTURE

MAWOK.i 1. A tract of land held by a human nature, the law considers sufficient to palliate
lord or other personage. the criminality of the offense. It is " involuntary "
Out of this tract the grantee or lord reserved a when the death' is caused by some unlawful act, not
accompanied with any intention to take life. . The
" demesne " contiguous to his castle. On one pare of true nature of manslaughter is, that it is homicide
the rest were settled " military tenants " sufficient in mitigated out of tenderness to the frailty of human
number to perform the services their employer owed
to his lord; on another part dwelt the "socage ten- Where' there is no evil intent, it is not necessary that
nature.
ants," who farmed the land and paid rents in cattle, the killing should be the result of an unlawful act; it
grain, etc.; and on a third part were the "villains," is sufiELcient if it is the result of reckless or foolhardy
who served at base or servile labor at dictation.
Roads, commons, and waste ground took up the re- presumption, judged by the standard of what would
be reckless in a man of ordinary prudence under the
mainder of the district. " Book " or " charter land "
was held by deed under fixed rents and free services. same circumstances. ^
In the courts of the United States, the crime is pun-
" Folk land " was held by no assurance in writing, but ishable by imprisonment not exceeding ten years, and
distributed among the common people, and reserved
by a fine not exceeding one thousand dollars,^
at the pleasure of the lord. The "court-baron" re- See Homicide; Malice; Murder.
dressed misdemeanors and nuisances within the
MAlSrSTEALING. See Kidnaping.
manor, and settled disputes^ between tenants as to
property, before at least two freeholders as a jury.* MANU. See Manus.
See Demesne ; Copyhold ; Feud. MANUAL. See Delivery; Labor, 1.
2. In the older parts of the United States Compare Corporeal.
(the interior of New York and eastern Penn- MAITXJFACTUIIE.4 Making an article
sylvania, for example), land held on a fee- by hand; making an article, either by hand
farm rent, and descending to the oldest son or by machinery, into a new form, capable
of the proprietor — the patroou.'* See Feud. of being used, in ordinary life. In some in-
MANSION. See House, 1 ; Manor. stances, may refer to the process performed
MANSLAUGHTER. The wrongful upon what is found in a natural state, in
killing of another person without malice,
others, to a subsequent process.^
express or implied. To manufacture is to change and modify natural
Voluntary manslaughter, A kijling substances so that they become articles of value and
upon a sudden heat ; a killing upon a sudden use. The publisher of a newspaper is not a "manu-
quarrel, in the first transport of passion and^ The meaning has expanded as workmanship and
facturer."^
before reason has time to resume her empire.** art have advanced; so that now nearly all artificial
Killing after passion has subsided is murder. Not, products of human industry, nearly all such materials
then, the same as excusable homicide in self-defense. as have acquired changed conditions as new and spe-
Involuntary manslaughter. A killing cific combinations, whether from the direct action of
in the doing of an act unlawful in itself, or the human hand, from chemical processes devised and
directed by human skill, or by the use of machinery,
a lawful act in an unlawful or careless way.*
are now commonly designated as "manufactured."
As, where a workm'&.n flings <* piece of timber into
the street and kills a man; where the owner allows a Making flour from wheat is " manufacturing." ^
vicious animal to run at large; where one fires off a
pistol, against law, and kills another, or drives a loco- ' Commonwealth v. Webster, 5 Cush.Jp4, 307 (1650)i
motive engine at an unlawful speed ; where one cor- Shaw, C. J. ; United States v. Outerbridge, 5 Saw. 622
rects a child immoderately. When no more is intended (1868), Field, J.
than a civil trespass, a killing is "voluntary" man- 2 Commonwealth v. Pierce, 138 Mass. 174 (1884), cases,
slaughter; but where a felony is intended, a killing is Holmes, J. The defendant, who publicly practiced as-
murder.^ a physician, caused a patient to be kept in flannels,
Manslaughter is the killing of another without mal- saturated with kerosene, for three days, from which
ice. It is "voluntaiy" when the act is committed treatment she died. Same case, 24 Am. Law Reg. 117,
with a real design and purpose to kill, but through the 124r-20, cases. As to deaths from accidents, see 21
violence of sudden passion, occasioned by some great Cent. Law J. 267-69 (1885), cases.
provocation, which, in tenderness to the frailty of 8 Act 13 March, 1875: 1 Sup. R. S. 177. See 1 Whart.
Cr. L. §307; 2 Bish. Cr. L. Ch. XXSIl; 4 Crim. Law
^ F. manoir, mansion: L. manere, to remain, reside. Mag. 669, 679.
2 3 El. Com. 90. * L. manu, by the hand; facere, to make.
3 See People v. Van Rensselaer, 5 Seld. 391 (1853) ; The ^ [Lawrence v. Allen, 7 How. 794, 793 (1849), Wood-
Century Magazine, Dec. 1885: Manor of Gardnier bury, J. See also Schrieffer v. Wood, 5 Blatch 216
Island.
44 Bl. Com. 191-93, Approved, 87 Ind. 154; 78 Ky. (1864).
» Re Capital Publishing Co., 3 MacAr. 412 (1879), Mac-
177; 23 111. 31 ; 34 La. An. 38; 7 N. J. L. 243; 31 Pa. 201 ; Arthur, J. ; Re Kenyon, 1 TJtaJti, 47 (1873).
3 Gratt. 605. ' Carlin v. Western Assurance Co., 57 Md. 526 (1881),
 MANUFACTURE 655 MANUSCKIPT

The application of labor to an article, either by lard, and cured meats, with a view of making gain or
hand or by mechanism, does not make the article profit, is taxable as a manufacturer.'
necessarily a "manufactured" article, within the See Art; Design, 8; Mechanic; Phocess, 2; Tkade-
meaning of that term as used in the tariff laws. Thus, MARK.
scouring wool does not make the resulting wool a MANUMISSION. Giving liberty to one
manufacture of wool; nor does cleaning and ginning who has been in servitude, with the power
cotton make the resulting cotton a manufacture of
cotton; nor (case in issue) are shells cleaned by acid, of acting except as restrained by law. 2
and then ground on an emery wheel, and some after- MANURE. See Waste, S.
ward etched by acid, and all intended to be sold for Made upon a farm, from consumption of its prod-
ornaments, as shells.' ucts, is part of the realty. Made from hay brought
Pressed and baled hay is not a "manufactured upon the land, has been held to be personalty, es-
pecially when gathered into heaps. If abandoned in a
article."'' highway by the owner of the animals, the first taker
Cutting and storing ice is not "manufacturing: "
the material is in no way changed or adapted to a new has a right to it.'
or different use.^ Manure which had accumulated in a public street,
Nor is mining coal "manufacturing." * the fee of which belonged to the borough, was raked
Animal charcoal or bone-black, and bone-dust, are into heaps by the plaintiff during the evening of one
" manufactures of bone." ^ day, to be removed the next evening. In this he was
"Manufactures of metals" mean manufactured prevented by the defendant, who carted the manure
articles in which metals form a component part; not away to his own land. In an action of trover by the
articles in which metals have lost their form entirely, plaintiff for the value of the manure, it was held;
and become the chemical ingredients of new forms, That the manure was personalty; that it belonged
as, white lead, nitrate of lead, oxide of zinc." originally to the owners of the animals that dropped
" Domestic manufactures," in a State statute, refer it, but was to be regarded as abandoned by such own-
to manufactures within its jurisdiction.*' ers; that the first occupant had a right to appropriate
it; that after the plaintiff had added to its value by
Manufacturer. One '"engaged in the the labor of raking it into heaps he was entitled to it;
business of making raw materials into wares and that he had a reasonable time in which to re-
suitable for use.'"
The builder or repairer of vessels is not, then, a move it.*
MANUS. L. A hand. F. main, q. v.
manufacturer. ^
Not, necessarily, one who produces a new article Mauu brevi. With shorthand: briefly.
out of materials entirely raw. He is, who gives new Manu forti. With strong hand : forcibly.
shapes, new qualities, new combinations to matter See Hand, 3.
which has already gone through some artificial pro- MoUiter manus imposult. He laid
A cooper who makes barrels from staves was held
cess.''
hands upon him lightly.
A plea justifying an assault or trespass, committed
not to be a manufacturer within an exemption iaw.^
to preserve the peace, to prevent a crime, or to protect
An ice-creaoa confectioner is not a manufacturer; ">
nor is the publisher of a newspaper, as seen above." one's habitation.'*
A pei'son who slaughters hogs, adding to their value MANUSCBIPT.e a writing of any kind,
by certain processes and by combination with other as opposed to printed matter or a picture; a
materials, whereby they are conveited into bacon.
book, paper or document in written charac-
ters.
Ritchie, J. See also Holden v. Clancy, 58 Barb. 597 In copyright law, an unpublished literary
(18711. production, however prepared ; not, then, a
I ' Hartranft v. Wiegmann, 1-Jl U. S. 609, 615 (1887), picture or painting,'
cases, Blatchford, J. At common law, the sole proprietorship in manu-
2 Frazee v. Moffitt, 20 Blatch. 208 (1882). script, before publication, is in the author or his as-
= Hittinger v. Westford, 133 Mass. 263 (1883). Contra, signe but
; an unqualified publication, such as is made
Attorney-General v. Belle Island Ice Co., 63 Mich. by printing and offering copies for sale, dedicates the
-(18S6).
' Byers v. Franklin Coal Co., 106 Mass 13] (1870). 1 Engle V. Sohn, 41 Ohio St. 691 (1885).
» Schrieffer v. Wood, 6 Blatch. 216 (1884). See also 2 Fenwick v. Chapman, 9 Pet. "■472 (1835), Wayne, J.
100 Mass. 183; 9 N. J. E. 289; 4 Lans. 511. = 1 Washb. R. P. 6, cases; llComi. 525; 68 Me. 204; 13
•Meyer v. Arthur, 91 V. S. 570 (1875). Gray, 63; 110 Mass. 94; 2 Ii-ed. L. 3-'U; 44 N. H. 120; 48
' Commonwealth v. Giltinan. 04 Pa. 103 (1870). id. 147; 49 id. 62; 28 N. J. L. 581 ; 15 Wend. 169; 17 Pa.
^People y. N. Y. Floating Dry-Dock Co., 63 How. Pr. 202; -43 Vt, 83; 2 Chip. (Vt.) 114.
453 (1882): Webster's Diet. ; s. u., 92 N. Y. 489 (1883). ' Haslem v. Lockwood, 37 Conn. 500, 505 (1871), cases.
'New Orleans u. Le Blanc, 34 La. An. 597 (1882), * 3 Bl. Com. 121.
Bermudez, C. J. "L. manu, by hand; scriptum, written.
'» New Orleans v. Mannessier, 32 La. An. 1075 (1880). ' Parton v. Prang, 3 Cliff. 537, 544 (1872), cases, Clif-
" See Norris v. Commonwealth, 27 Pa. 496 (1856). ford, J.
 MAP 656 MARITIME

contents to the public, unless the sole right of printing, Marine contract. A maritime contract.
publishing, and vending is secured by copyright. In
communicating the contents of his manuscript, the Marine court. In the city of New York, a court
author may impose such restrictions as he pleases exercising the jurisdiction of a justice of the peace,
upon the extent of its use.^
with
q. V. cognizance of actions under city laws for penal-
At common law, the author has a property in his
ties from twenty-five to one hundred dollars, and
manuscript, and may obtain redress against one who claims for services rendered upon the high seas where
deprives him of it, or by improperly obtaining a copy
the State courts have juris-diction, though the amount
endeavors to realize a profit by its publication. The exceeds one hundred dollars. The court exercises no
copyright law protects this property which an author real admiralty powers.
has at common law, and which would be protected by
Marine insurance. See Insurance,
a court of chancery. !*
Marine.
See further Bagqags; Copyright; Letter, 3; MAm,
2; Writing. Marine interest. Extra interest paid
MAP. A transcript of the region which for the loan of money upon bottomry or re-
it portrays, narrowed in compass so as to spondentia bonds, gg. v.
facilitate an understanding of the original.' Marine league. See League.
Maps showing boundaries are receivable in evi- Marine risk. A peril necessarily inci-
dence, if it appears that they were made by persons dent to navigation.
having adet^uate knowledge.*
Where one map appears to have been substantially Marine toft. A maritime tort, q. v.
copied from a copyrighted map, there is clearly an in- 2; n. Any person employed on a vessel to
fringement, which a court of equity will enjoin, with assist in the mgin purpose of the voyage.^
an order that an account be taken of the profits made Mariner. A person employed upon a
by the infringer.' See Appendage; Chart; Verba,
lllata. merchant ship or a ship-of-war.
Includes common sailors, a cook, porter, steward,
MAEAUDER.6 A soldier who commits
purser, clerk, engineer, surgeon, captain, admiral —
larceny or robbery near camp, or while wan- whoever has to do with the equipment and preservation
dering from the army.' of the vessel, or the welfare of the crew.^
A rover in quest of plunder; a plunderer. ^
MARITAGIUM. L. A daughter's mar-
MARG-IN.s In a brokers contract for
riage portion.
the sale of stocks: security against loss on In feudal law, the right in a lord, of whom land
the part of the agent, — money or other prop- was held by knight-service, to control the marriage
of his vassal's daughter. See Feud; Marital; Mar-
erty, i' riage, 2.
Additional collateral security against loss
MABITATi.3 Pertaining or belonging to
to the broker, while he is carrying stock for
a husband: as, marital rights, and duties.
his employer. 11 See Jas, Mariti ; Separate, 2.
See Futures; Option; Wagering.
MARITIME.* Pertaining to navigation
MABINE.12 1, adj. Pertaining to f}he
or commercial intercourse upon the seas,
high seas, to navigation or comiusrce upon
great lakes and rivers.
the sea, to the perils of the sea. Compai-e Maritime. Primarily, bordering on the
Maeitimb.
sea : as, a maritime town, coast, nation ; sec-
> Parton v. Prang, ante. ondarily, belonging to those who border on
' Wheaton v. Peters, 8 Pet. 656, 661 (1834), M'Lean, J. the sea: as, maritime laws, rights, pursuits.
See also Story, Eq. §§ 943-51; Paige v. Banks, 13 Wall. Marine. Primarily, of or pertaining to the
608 (1871).
' Banker v. Caldwell, 3 Minn. 103 (1859), Flandrau, J. sea: as, marine productions; secondarily,
n Greenl. Ev. § 139, cases; 1 Whart. Ev. §§ 194, 668, transacted at sea: as, marine service; or,
670, oases. again, doing duty on the sea: as, marine
s Chapman v. Ferry, 18 F. E. 639 (1883).
«F. maraud, a rogue, vagabond: marir, to stray, forces. 5
wander. Maritime cause. An action the subject-
matter of which arises out of the business or
' [Curry v. Collins, 37 Mo. 328 (1866).
« Webster's Diet.
• L. margin-, margo, a border, brink. ' The Ocean Spray, 4 Saw. 106, 111 (1876), Deady, J.
"Markham v. Jaudon, 49 Barb. 465 (1867), Leonard, ' 1 Conk. Adm. 107; 80 N. Y. 71; 7 How. 89; 3 Sumn.
Presiding Justice. 115; 1 Bl. Com. 419.
"McNeil V. Tenth Nat. Bank, 56 Barb. 64 (1869), 3 L. marit'tts, a married man.
Potter, J. * Milr'-J-tKme. L. maritimus: mare, the sea.
12 L. marinus; mare, the sea. ' Webster's Diet. ; Crabbe's Synonyms.
 MARITIME 657
MARK

commercial relations of persons upon the The French writers on maritime subjects are dis-
public navigable waters — seas, rivers, lakes. tinguished for their learning and acumen. The prin-
See Admiralty. cipal text law on which they rely, prior to the Ck)de of
Commerce adopted in the present century, is the Or-
Maritime contract. A contract which donnance de la Marine of 1681.'
relates to commerce, or navigation upon the Maritime lien. A lien upon a vessel, for
high seas, or navigable lakes or rivers. See money advanced, labor done, supplies fur-
Admiralty.
nished, seamen's wages due, damages from
Maritime court. A court exercising the collision, etc., authorized by the maritime
powers of a court of admiralty, q. v. law. See further Lien, Maritime.
Maritime interest. Marine interest, q. v. Maritime loan. A contract by which
See also Maritime Loan. the lender, in consideration of the sum, which
Maritime jurisdiction. Such as is ex- he will lose, if the thing upon which he has
ercised inthe cognizance of maritime causes ; made the loan should perish by inevitable
the jurisdiction exercised in admiralty, q. v. casualty, is authorized to stipulate for an in-
Maritime law. The law of the sea. The terest or extraordinary profit, in case the
body of principles and usages whi9h, by the thing arrives at the proper port. 2
consent of civilized communities or nations, Maritime property. See Abandon, 1;
has been adopted to regulate the affairs of Dereliction, 3.
men engaged in navigation and marine com- Maritime service. A service which is
merce.
performed upon a public navigable water
No single nation can change the law of the sea.
and has some relation to commerce or naviga-
That law is of universal obligation. Like all the laws
of nations, it rests upon the common consent of civil-
tion — some connection with a vessel em-
ized communities. It is of force, not because it was ployed in trade, with her equipment, her
prescribed by any superior power, but because it has preservation, or the preservation of her cargo
been generally accepted as a rule of conduct. Many
•of the usages which prevail, and which have the force or crew.s
Maritime tort. A wrong committed upon
of law, doubtless originated in the positive prescrip-
tions of some single state, which were at first of lim- a navigable water over which a court of ad-
ited effect, bufc which, when generally accepted, be- miralty exercises jurisdiction ; in no case, a
came of universal obligation — as in the cases of the tort committed or consummated upon land.*
Rhodian law, the Amalphitan table, the ordinances of See generally Admiralty.
the Hanseatic League, parts of the ordinances of MARK. 1, n. (1) A sign made on paper,
Louis XIV, the British orders in council of 1863, and
our act of congress of 1864. These have become the instead of a signature. Consists of two lines
law of the sea by reason of their acceptance as such. traced across each other between the Chris-
Of these, courts take judicial notice without proof. ^ tian name and the surname, with " His "
See Olebon; Rhodian.
While the general maritime law is the basis of the
written above, and "mark" below, the
crossed lines.
maritime law of the United States, as well as of other
Marksman. One who signs by means of
■countries, it is only so far operative as it has been
adopted by our laws and usages. It has no inherent a mark.
force of its own. The general system, familiar to law- The method of the Saxons was for such as could
yers and statesmen, was meant when it was declared not write to subscribe their names to a deed, and,
that "The judicial Power shall extend . . to all whether they could write or not, to affix the sign of
•Cases of admiralty and maritime Jurisdiction." " Thus the cross; which custom our illiterate vulgar to this
adopted, it became the maritime law of the United day keep up by signing a cross for their mark, when
States operating uniformly. unable to write their names.*
The question as to the limits of maritime law and Binds an intelligent maker as to parties accepting
admiralty jurisdiction is judicial, and no law can make the document on the faith of the mark. If the maker
it broader or narrower than the judicial power may is able to write, a mark for his name is presumed ac-
■determine those limits to be. But what the law is
"Within those limits depends on what has been receive'd > The City of Norwich, 118 U. S. 496 (
as law in the maritime usages of this country, and on
"The Draco, 2 Sum. 184 (1885): Valin.
■such legislation as may have been competent to ' [Cope V. Valette Dry-Dock Co., 4 Woods, 267 (1883),
affect it.3 Woods, J.
■" See The Plymouth, 3 Wall. 33 (1865), Nelson, J. Ap-
1 The Scotia, 14 Wall. 187-88 (1871), Strong, 'J. proved, Exp. Phenix Fire Ins. Co^, 118 U. S. 018 (1886).
' Constitution, Art. Ill, sec. 8. See also The Arkansas, 17 F. R. 387-88 (1883).
» The Lottawanna, 21 Wall. 573-76 (1874), Bradley, J. » 2 Bl. Com. 305.
(42)
 MARKET 658 MARKET

cidental, or as an incomplete signature. A mark

made by an attesting witness is verified as is the mark
trafiic, irrespective of place — as, in mai'ket
price or value, q. v.
of a party.! gge Cancel.
Market overt. Open market; a public
(2) A label, token, or impression; a sign, market.
badge, index: as, post-mark, trade-mark,^ In England, a sale of anything vendible therein is
good as between the parties, and binding on all who
qq.v.
Ear-mark. A mark placed upon a thing have a property in the thing. But a sale out of mar-
by which to identify it. ket overt of stolen goods does not alter the ownership,
Land-mark. A monument indicating and the owner' may take them wherever he finds
the boundaries of land. See Mark, 2 (3). A fair or market held at stated intervals in partic-
them.'
2, V. (1) To point out, settle, define, de- ular places by virtue of a charter or permission. To
scribe — with or without visible boundaries: this our ordinary markets bear no resemblance.'*
There is no law recognizing the effect of sales in
as, to mark and lay out the bounds and rules
market overt in any of the United States. °
of a prison.' The privilege given by law to a sale in market:
(2) To determine by marks on the ground : overt, of binding property against the true owner, was
as, to mark a boundary line.* originally intended to encourage markets and com-
(3) To note or enter upon a record : as, to merce. The property must still be, so openly ex-
posed that the vendor may conclude that no person
mark for use — indicate upon the record of a but the true owner would dare expose it for sale. . .
suit or judgment for whose benefit the same The privilege arose when there was great simplicity
is maintained or exists. of practice between buyers and sellers, in markets
Marked ballot. A ballot so prepared as and fairs. Shops were few, and persons whose goods
were taken feloniously would know where to resort to
to indicate to by-standers the nominee for
whom it is to be cast. See Ballot. find them. The privilege was designed to protect buy-
ers: if a man did not pursue his goods to market
MARKET.s 1. A place for public trafiic; where they were openly sold be ought not, to interfere
also, a franchise or liberty to have a place with the right of the bona Jide purchaser; but he can
for such resort.* require that the goods be exposed, and the whole
transaction completed, so as to give him opportunity
A place where comestibles [eatables], per- to pursue the goods. Therefore, a sale by sample is
ishable in their nature, are sold for the daily not such a sale as is entitled to the privilege.*
consumption of the people.' Market place. Usually a market-house.*
A designated place in a town or city to In a rule of charges, either a district of country in
which all persons can repair who wish to buy which trade in one or several articles is so habitually
conducted as to f lu-nish a criterion of the value of the
or sell articles there exposed to sale. 8 thing or things sold, or, the point to which the trade
The privilege within a town to have a mar- of a district centers.*
ket ;as now used, includes the idea of land Market price or value. A price estab-
and buildings or suitable erections for the lished by public sales in the way of ordinary
accommodation of those who attend the
market to sell or buy the articles brought business, as, of merchandise.''
The price at which the owner or the pro-
there for sale.^ See Establish. ducer of goods holds them for sale ; the price
2. Buying and selling generally; trade, at which they are freelj' offered in the mar-
ket; such price as he is willing to receive
■ See Barnard v. Heydrick, 49 Barb. 68 (1866) ; 1 Whart. when the goods are sold in the ordinary
Ev. § 696, cases; 1 Williams, Ex. 63; 1 Jarm. Wills, 69,
113; 2 Curt. 834; 3 id. 752; 18 Ga. 396; 16 B. Mon. 103; course of trade. ^
19 Mo. 609; 24 Pa. 503.
' See Adams v. Heisel, 31 F. E. 280 (1887). ' 2 Bl. Com. 449.
= Allen V. Smith, 12 N. J. L. 165 (1831), Ewing, C. J. ' Fawcett v. Osbom, 32 111. 426 (1863), Breese, J.
• Keller u Young, 78 Pa. 170 (1875). = See 2 Kent, 324; 1 Johns. 478; 8 Cow. 341; 32 111. 411.
» L. mercatus, traffic: mercari, to trade: merx, mer- ' Crane v. London Dock Co., 117 E. C. L. '330, 318
chandise. (1864), Blackburn, J., Cockbum, C. J. See Ventress v.
• See a Bl. Com. 37. Smith, 10 Pet. *ir6 (1836); The Case of Market Overt,
' New Orleans v. Morris, 3 Woods, JOS, 107 (1877), 2 Tud. L. 0. »718-35, cases.
cases, Billings, D. J. " Smith V. City of Newbern, 70 N. C. 18 (1874).
8 Caldwell v. City of Alton, S3 111. 419 (1864), Breese, " [Hilliard'Fluihe Co. v. Woods, 1 Wyom. 397 (1878),
Justice.
« Ketchum v. City of Buffalo,' 21 Barb. 296, 298 (1854), ' Murray v. Stanton, 99 Mass. 348 (1848), Wells, J.
Marvin, J. 8[Cli(luot's Champagne, 3 Wall. 125, 142 (1865),
Peck, J.'
 659
MARKET MARRIAGE

" Market value," " actual market value," and " fair MARQUE,! LETTER OF. Permission
market value " mean the same. The only other pos- granted by one ruler to make reprisals on the
sible meaning of the word " actual " is value in actual
market, as contradistinguished from a hypothetical, country of another ruler, with particular
notional, or ideal value, which may be affixed to an reference to the apprehension of the latter's
article in a, particular case, for a particular reason. subjects within the march or limit of the for-
What men in the ordinary dealings of society,' be- mer's country.^
tween man and man. would consider to be the fair act-
ual market value of property, is the actual mrrket Marque and reprisal. Reprisal : taking
value.' See further Value, Market. in return;
to do so. marque: passing the "frontier"
Market stall. The purchase of a stall or stand in
a public market confei*s an easement or exclusive Letters of marque and reprisal are grantable by
right to occupy the stall, with its appendages, for the the law of nations whenever the subjects of one state
purposes of the market, and subject to the regulations are injured by those of another and justice is denied
thereof.' by the state to which the oppressor belongs. By vir-
Marketable. Vendible in market; mer- tue of such commission the bodies and goods of sub-
chantablefree
; from plausible or reasonable jects of the offending state may be seized until satis-
faction ismade, wherever they happen to be found.
objection : as, a marketable title to land. Op- The custom is dictated by nature herself; but in soci-
posed, unmarketable.^ See Merchantable; ety, that the private sufferer should not be left to act
Title, 1, Marketable. as judge in his own cause, the sovereign power is
Munieipal market. Consists in a place called upon to determine when reprisals may be made.^
A private armed vessel or privateer is a vessel
for the sale of provisions and articles of daily owned and officered by private persons, but acting
consumption; in convenient fixtures; in a under a commission from the state, usually called
system of police regulations, fixed market letters ,of marque: originally, letters of license to go
across the boundary and make reprisals.*
hours, provision made for lighting, -watch- " The Congress shall have Power . . to grant
ing, cleaning, for detecting false veeights and
Letters of Marque and Reprisal." ' " No State shall
unwholesome food, and other arrangements
. . grant Letters of Marque and Reprisal." '
calculated to facilitate the intercourse and
MARRIAGE.'' 1. The private relation
insure the honesty of buyer and seller; also, which includes the reciprocal duties of hus-
in proper olficers to preserve order and en- band and wife.8
force obedience to rules.* An engagement by which a single man
Every municipal corporation that has power to es- and a single woman of sufficient discretion
tablish ordinances to promote the general welfare, and
preserve the peace, may fix the times or places of
take each other for husband and wife.^*
holding public markets for the sale of food, and make Also, the act or ceremony by which such
such other regulations concerning them as may con- engagement is solemnized.
As between the immediate parties, under the law,
duce to the public interest. The right to establish a
market includes the right to shift it from place to a civil contract; as between them and the State, a
place, as the convenience or necessities of the people
status or relation.'"is the state into which the parties
"Matrimony"
demand; but no right is implied to build it upon a
public highway.' enter.
The court of the clerk of market has been incident Although marriage is a sacred obligation, it is still a
to every market, to punish misdemeanors therein, civil contract regulated by law."
Statutes may regulate the mode of entering into
especially the use of false weights and measures.'
See Engross, 2; ForesTallikg; Inspection, 1 ; Mee-
chakdise; Otherwise; Eegratisg; Staple; Toll, a. 1 F. marque, a boundary, limit, frontier.
' [Skeat, Etym. Diet.
" 1 Bl. Com. 258.
Swayne, J.; Cases of Champagne, 1 Bened. 251 (1867), « Woolsey, Int. Law, § 127. See Wheat. Int. L. § 290.
Blatchford, J. » Constitution, Art. I, sec. 8, cl. 11.
1 Sherry Wine Case, 2 Bened. 26T-68 (1868), Blatch- • Ibid. sec. 10. See 2 Story, Const. § 1356.
ford, J. ' F. mariage: L. maritare: maritus, a husband.
' Rose V. Mayor of Baltimore, 51 Md. 256, 268 (1878). Compare Marital.
■ 1 Pars. Contr. 584, cases. 6 [1 Bl. Com. 433.
< [City of Cincinnati v. Buckingham, 10 Ohio, 261 • Milf ord V. Worcester, 7 Mass. *52 (1810), Parsons,
(1840), Lane, C. J. Chief Justice.
» Wartman v. City of Philadelphia, 33 Pa. 209 (1859), >» MoCabe v. Berge, 89 Ind. 229 (1883). See also 44 Ala.
Black, C. J. See Gall v. City of Cincinnati, 18 Ohio 674; 30 Ga. 176; 9 Ind. 50; 19 id. 57; 4 Mo. 126; 50 N. Y.
St. 563, 567 (1869); Mayor of Savannah v. WUson, 49 184; 4E.L101; 13 id. 98.
Gft. 476 (1873). II Reynolds v. United States, 98 U. S. 165 (1878), Waite,
•4B1. Com. 275; 1 id. 274. Chief Justice.
 MARRIAGE 660 MARRIAGE

the contract, but they do not confer the right, A mar- essary. ^ It is not presumed where cohabitation would
riage valid at common law is valid under a statute un- be unlaw'ful.2 In Massachusetts, two persons cannot
less the statute contains express words of nullity. ^ marry themselves, though their intent is good, wit-
Marriage is an institution founded upon mutual nesses are present, and a certificate has been taken
consent. That consent is a contract, but sui juris. It
taken out.^
supersedes all other contracts between the parties, To a valid marriage, consent is all that is necessary.
and, with certain exceptions, it is inconsistent with the If made^er verba de prcesenti, by words in the pres-
power to make new ones. It may be entered into by ent tense, though not consummated by cohabitation,
persons under the age of lawful majority, but it can or per verba de futuro, by words of the future tense,
neither be canceled nor altered at will. An entire and followed by consummation (q. v.\ it amounts to a
failure of the power to fulfill by one party, as in the valid marriage, in the absence of civil regulations to
case of permanent insanity, does not release the other the contrary. It may be proved by reputation, decla-
from, the pre-existing obligation. Perhaps the only rations, conduct and other circumstances usually ac-
element of a " contract," in the ordinary acceptation, companying the relation;* and by what would be
that exists, is that the consent of the parties is neces- proof where the ifiarriage took place.^
sary to create the relation. Marriage is the most im- Where no ceremonies are required, and no record is
portant transaction of life ; it is the basis of the entire made to attest the marriage, some public recognition
fabric of all civilized society.^ of it is necessary as evidence of its existence. The
While marriage is often termed by text-writers and protection of the parties and their children and consid-
in decisions of courts a civil contract— generally to erations of public policy alike require this recogni-
indicate that it must be founded upon agreement of tion; and it maybe made in any way which can be
the parties, and does not require any religious cere- seen and known, such as living together as man and
mony for its solemnization ^ it is something more wife, treating and speaking of each other in the pres-
than a mere contract. The consent of the parties is ence of third parties as being in that relation, and de-
of course essential to its existence, but when the con- claring the relation in documents executed by them
tract to marry is executed by the marriage, a relation while living together. From such recognition the rep-
' between the parties is created which they cannot utation of being marked will obtain among friends
change. The relation once formed, the law steps in and and acquaintances, which is of itself evidence of a
holds the parties to various obligations and liabilities.
It is an institution, in the maintenance of which in its persuasive character,^
In tiie absence of civil or statutory regulations, the
purity the public is deeply interested.^